Industrial actions and EU economic freedoms: The autonomous collective bargaining model curtailed by the European Court of Justice

Abstract

Is the right to take collective action as enshrined in a Member State?s national law restricted in any way by the rules on right of establishment under Article 43 EC or on freedom to provide services under Article 49 EC and the Posted Workers Directive? These were the main questions referred to the ECJ in the Viking and Laval cases decided by the Court in December 2007. In this article, the authors take stock of the EC rules brought to the fore in the cases. According to the judgments, the trade unions concerned are caught by the direct horizontal effect of the Treaty articles. Collective actions, with cross–border implications, may constitute a restriction on the economic freedoms under the Treaty. Such a restriction may, however, be justified under specific conditions. Even if the Court recognized the right to take collective actions as a fundamental right in Community law, the exercise of that right must be reconciled with the requirements of other rights protected under the Treaty. The judgments imply that the right to different kinds of collective actions depends on the aim of the action in question. In Laval, the secondary actions taken did not aim to directly regulate the employment conditions of the attacking union’s own members but rather at establishing a uniform level of wages and employment conditions applied by all undertakings in the branch, and the outcome was not confirmed in formal legislation, according to the Swedish social model. Since this demand went beyond protecting the “hard nucleus” of the Posted Workers Directive, the restriction caused by the collective actions was not justified.

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