European fundamental social rights and their (problematic) relationship with the economic freedoms Dr. Marco Rocca (UHasselt, ULiège, ULB - Belgium)
Fundamental (economic) freedoms? ▪ The four freedoms ▪ Free movement of workers (art. 45 TFEU) ▪ Freedom of establishment (49 TFEU) ▪ Freedom to provide services (art. 56 TFEU) ▪ Free movement of goods & capital (art. 28 and 63)
Fundamental social rights? ▪ Rights recognised by EU Charter of Fundamental Rights ▪ Rights recognised as fundamental by the Court of Justice ▪ Rights recognised by international documents (European Convention on Human Rights, European Social Charter, Conventions of the International Labour Organisation…) ▪ ( Constitutional traditions common to the Member States)
Menu ▪ The age of innocence ▪ Early days ▪ The Charter, Schmidberger and Omega ▪ Childhood’s end ▪ Viking & Laval ▪ Gates of tomorrow ▪ The Life and Death of Monti II ▪ Conflict of legal orders
▪ “The principle of freedom of establishment neither affects nor is affected by the right to strike ” -- EC Commission 1977 Reply to MEP Goutmann’s question about the plans of the Publishing House Hersant to move the printing of French papers (Figaro, France-Soir and Nord-Eclair) to Belgium, near the French border, due to a strike taken against the publisher
▪ Spanish Strawberries (C-265/95, Commission v. France )
▪ Spanish Strawberries (C-265/95, Commission v. France ) ▪ “Declares that, by failing to adopt all necessary and proportionate measures in order to prevent the free movement of fruit and vegetables from being obstructed by actions by private individuals , the French Republic has failed to fulfil its obligations under Article 30 of the EC Treaty, in conjunction with Article 5 of that Treaty, and under the common organizations of the markets in agricultural products”
▪ “Monti I” Regulation Regulation No 2679/98 on the functioning of the internal market in relation to the free movement of goods among the Member States ▪ Article 2: “This Regulation may not be interpreted as affecting in any way the exercise of fundamental rights as recognised in Member States, including the right or freedom to strike . These rights may also include the right or freedom to take other actions covered by the specific industrial relations systems in Member States”
▪ Albany (C-67/96) ▪ “It is beyond question that certain restrictions of competition are inherent in collective agreements between organisations representing employers and workers” ▪ “It therefore follows from an interpretation of the provisions of the Treaty as a whole which is both effective and consistent that agreements concluded in the context of collective negotiations between management and labour […] must, by virtue of their nature and purpose, be regarded as falling outside the scope of [competition law]”
▪ The EU Charter of Fundamental Rights ▪ Solemnly proclaimed at the Nice European Council on 7 December 2000 ▪ On 1 December 2009, with the entry into force of the Treaty of Lisbon, the Charter became legally binding on the EU institutions and on national governments – same level of the Treaties ▪ Social rights in the same document as civil and political rights ▪ Non-discrimination, information and consultation, collective action & bargaining, protection against unjust dismissal, fair working conditions… ▪ But “recognises the rights, freedoms and principles ” Art. 52(5)
▪ Article 28 EUCFR ▪ “Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices , the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action .”
Human rights and the internal market
▪ Schmidberger v Austria (C-112/00)
▪ Schmidberger v Austria (C-112/00) ▪ Demonstration partially blocking the Brenner motorway and causing delays ▪ Action by transport company against Austria for not having banned the demonstration ▪ Free movement of goods v freedom of expression/peaceful assembly
▪ Schmidberger ▪ “The competent authorities enjoy a wide margin of discretion in that regard. Nevertheless, it is necessary to determine whether the restrictions placed upon intra-Community trade are proportionate in the light of the legitimate objective pursued , namely, in the present case, the protection of fundamental rights ”
▪ Schmidberger ▪ Restriction was proportionate : ▪ Authorisation requested ▪ Only a single route in a single occasion ▪ The purpose of that public demonstration was not to restrict trade in goods of a particular type or from a particular source ▪ Publicity ▪ “Did not give rise to a general climate of insecurity” no effect on intra-Community trade flows as a whole ▪ “An outright ban on the demonstration would have constituted unacceptable interference with the fundamental rights ”
▪ Omega (C-112/00) ▪ Service provider operating a laser dome ▪ Ban by the city police ( human dignity v playing at killing) ▪ Freedom to provide services v human dignity
▪ Omega ▪ “Since both the Community and its Member States are required to respect fundamental rights, the protection of those rights is a legitimate interest which , in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty such as the freedom to provide services” ▪ “[...] only if they are necessary for the protection of the interests which they are intended to guarantee and only in so far as those objectives cannot be attained by less restrictive measures ”
▪ Omega ▪ Restriction was proportionate ▪ “the prohibition […] corresponds to the level of protection of human dignity which the national constitution seeks to guarantee in the territory of the Federal Republic of Germany” ▪ “ It should also be noted that, by prohibiting only the variant of the laser game the object of which is to fire on human targets and thus ‘ play at killing ’ people, the contested order did not go beyond what is necessary in order to attain the objective pursued by the competent national authorities”
Menu ▪ The age of innocence ▪ Early days ▪ The Charter, Schmidberger and Omega ▪ Childhood’s end ▪ Viking & Laval ▪ Gates of tomorrow ▪ The Life and Death of Monti II ▪ Conflict of legal orders
Viking (C-438/05) ▪ Ferry “Rosella” Helsinki to Tallin under Finnish Flag
Viking (C-438/05) ▪ Ferry “Rosella” Helsinki to Tallin under Finnish Flag ▪ Ship owner wants to reflag towards Estonia and apply an Estonian collective agreement ▪ International Transport Federation calls all the non-Finnish members not to conclude a collective agreement with Viking
Laval (C-341/05) ▪ City of Vaxholm hires a Latvian undertaking to construct a school with its own workers (“posted”, paying Latvian wages)
Laval (C-341/05) ▪ City of Vaxholm hires a Latvian undertaking to construct a school with its own workers (“posted”, paying Latvian wages) ▪ Swedish trade unions call for a boycott of the construction site ▪ Aim : conclusion of a collective agreement in line with the working conditions applicable in the sector
▪ Viking ▪ “article 43 EC [freedom of establishment] is to be interpreted as meaning that, in principle, collective action initiated by a trade union or a group of trade unions against a private undertaking in order to induce that undertaking to enter into a collective agreement, the terms of which are liable to deter it from exercising freedom of establishment, is not excluded from the scope of that article ”
Viking ▪ No Albany immunity ▪ “it cannot be considered that it is inherent in the very exercise of trade union rights and the right to take collective action that those fundamental freedoms [freedom of establishment] will be prejudiced to a certain degree”
Viking&Laval ▪ “the right to take collective action, including the right to strike, is recognised both by various international instruments which the Member States have signed or cooperated in, such as the European Social Charter , signed at Turin on 18 October 1961 […] and Convention No 87 [of the ILO ] concerning Freedom of Association and Protection of the Right to Organise […] and by instruments developed by those Member States at Community level or in the context of the European Union, such as the Community Charter of the Fundamental Social Rights of Workers […] and the Charter of Fundamental Rights of the European Union”
Viking&Laval ▪ “Although the right to take collective action […] must therefore be recognised as a fundamental right […], the exercise of that right may none the less be subject to certain restrictions . As is reaffirmed by Article 28 of the Charter of Fundamental Rights of the European Union, those rights are to be protected in accordance with Community law and national law and practices .”
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