Research Handbooks in International Law series
Edited by Adelle Blackett and Anne Trebilcock
Chapter 13: The right to take collective action: Prospects for change in European Court of Justice case law in light of European Court of Human Rights decisions
The Court of Justice of the European Union (CJEU) rendered two judgments at the end of 2007 on industrial action with cross-border effect that have sparked continuing controversy. The cases of Viking and Laval each dealt with trade union strike action under EU law. In Viking, the CJEU first recognized the right to strike as a fundamental right, yet held that on the facts this right must give way to the fundamental economic freedoms: freedom of establishment and freedom to provide services. Similarly in Laval, the CJEU held that a Swedish law that authorized the strikes infringed European law, and that although strikes aiming to protect workers had an important purpose that would generally justify a restriction of one of the fundamental freedoms, in this case Swedish law could not justify the actions in question. Both decisions have been heavily criticized, especially because of heavy-handed direction aimed at national courts on how to conduct the proportionality test and interpret the right to strike, but also because of the disregard shown for the democratic and representative function of autonomous collective bargaining and of freedom of association. In 2009, the EU rights landscape changed with the entry into force of the EU Charter of Fundamental Rights and its ‘right to negotiate and conclude collective agreements at the appropriate levels’ for ‘workers and employers or their respective organisations’ and, in addition, ‘in cases of conflicts of interest, to take collective action to defend their interests, including strike action.’ The CJEU will therefore have to acknowledge the judgments of the European Court of Human Rights on the right to strike and the strong criticism of its own dogmatic approach in the Viking and Laval cases. The EU Charter unquestionably makes it more difficult to maintain that economic freedoms should dominate over social rights.
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