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Aukje van Hoek

This chapter deals with the relevance of the Brussels I Regulation (recast) for issues of collective labour law. Collective labour law is a term which covers any rules on the rights of and relations between collective entities in the world of work and employment. The current contribution does not go into the many different models existing in the EU Member States but limits itself to the issue of civil law jurisdiction: if questions pertaining to collective labour law end up in the civil court system of an EU Member State, how will the court determine its international jurisdiction? Case law on this issue is rare, but does exist. These cases show that national courts struggle with the issue and do not always solve it in a convincing manner. The first question that arises in this context concerns the scope of application of the Brussels I recast Regulation: to what extent can issues of collective labour law be considered to be ‘civil and commercial matters’? A distinction is made between cases involving unions and cases involving works councils. I conclude that cases involving unions (both as claimant and as defendant) and claims based on collective agreements are firmly covered by Brussels I. The position of works councils is more problematic, but there seems to be insufficient ground to exclude conflicts involving works councils from the scope of application of the regulation. Uncertainty as to the interpretation of Article 24 sub 2 seems to be a main driver for the exclusion of works council cases from the scope of application of Brussels I recast. The preferred solution to this issue would be to hold Article 24 not to be applicable to claims involving works councils. However, absent ECJ case law, this question is still open.

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Aukje van Hoek

One of the key features of the European Union (EU) is the establishment of an internal market. This entails not only the free movement of goods and capital, but also the free movement of workers and services and the freedom of establishment. These latter freedoms, taken together, mean that within the EU a company that transfers workers to another member state cannot be obliged to offer them a local contract and that there are no generally applicable controls as to the conditions of employment prior to admission to the country and/or the labour market. In the EU, the task of ensuring a certain measure of protection for such migrant workers themselves while preventing unfair competition based on differences in employment conditions between local workers and migrants is delegated almost exclusively to the rules on applicable law, which have to a large extent been harmonized in Articles 8 and 9 of the Rome I Regulation and the Posted Workers Directive (PWD). As this chapter explains, the choice of law rule in private international law focuses on providing (ex post) justice in the individual case and is poorly equipped to manage migration. The system of ex ante overriding mandatory provisions is heavily curtailed by the free movement of services. Moreover, there is an uneasy match between the interests informing private international law and the interests of the internal market, which is not likely to be resolved in the near future.