The exercise of the right to collective action, including all means to act col-lectively, does not fall within EU competences and is thus covered by domestic laws which may differ from one State to another. Specifically related to collective actions, it seems clear that given the different provisions and parameters to evalu-ate their legitimacy, difficulties may arise in situations with international implica-tions. In EU law, it is not possible to find specific rules governing collective ac-tion, apart from proposals for legislative acts and soft law documents of the Commission aimed at developing an EU action on collective redress, even if they do not specifically address the case of employees220.
In light of the foregoing considerations on the concept of fundamental rights in the EU legal order and the obstacles they have faced vis-à-vis the economic freedoms or in times of economic crisis, in other words, when the substance of those rights is affected, it is important to determine the specific instruments and provisions on collective action in the existing European scenario, by recalling the case law of the Court of Justice where appropriate.
At the regulatory level, the right to collective action, including the right to strike, has a constitutional basis in many States, as an individual fundamental right to be exercised collectively. Commonly, a strike is a form of protest considered as the most effective means for workers to achieve their goal. It can be freely exer-cised, without any prior procedural requirements and without any consequences to individual employment contracts221.
There are various international legal bases222 for the right to collective activi-ties, including the right to strike, such as the 1966 International Covenant on Eco-nomic, Social and Cultural Rights223, the ILO Conventions No. 87224 and No.
220 See further in the present para. and in Chapter 4 on collective redress.
221 F. FABBRINI, Europe in Need of a New Deal, cit., p. 1185 f.; see also Advocate General Men-gozzi, opinion delivered on 23 May 2007, Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet and Others, EU:C:2007:291, paras. 68, 77 and fn. 31 to 33.
222 For an excursus see V. KOSTA, Fundamental Rights in EU Internal Market, Oxford and Port-land, Oregon, Hart Publishing, 2015, p. 224 ff.
223 See Article 8.
74
98225, the 1950 European Convention of Human Rights (ECHR)226, and the 1961 (then 1996) European Social Charter (ESC)227. In those provisions, each State par-ty (or Member) is deemed to undertake steps using the maximum of its available resources or by all appropriate means, with a view to progressively achieving the full realisation of the rights, and to effectively complying with these obligations.
EU law, primarily the case law of the Court of Justice, expressly recalls said international and European instruments in order to endorse their objectives and purposes, respectively, in regulating and applying the law in the field of funda-mental social rights.
At the EU level, moreover, the 1989 Community Charter of the Fundamental Social Rights of Workers protected (applicable to employers and workers, or their organisations) the freedom of association and the right to collective bargaining, as well as the right to resort to collective action, including the right to strike, in situa-tions of conflicts of interests, subject to the obligasitua-tions arising under national reg-ulations and collective agreements228.
In line with this, Article 28 of the EU Charter of Fundamental Rights clearly provides for the right to collective action, including the right to strike. It states:
«Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and con-clude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action».
As a preliminary remark, the Charter makes a distinction between workers and
224 Convention concerning Freedom of Association and Protection of the Right to Organise, adopted in San Francisco on 9 July 1948, 31st ILC session, and entered into force on 4 July 1950.
225 Convention concerning the Application of the Principles of the Right to Organise and to Bar-gain Collectively, adopted in Geneva on 1 July 1949, 32nd ILC session, and entered into force on 18 July 1951. On ILO conventions, see J.R. BELLACE, Back to the Future: Freedom of As-sociation, the Right to Strike and National Law, in King’s Law Journal, 2016, Vol. 27, No. 1, pp. 24-45; Ö. EDSTRÖM, The Right to Collective Action, cit., pp. 58-61.
226 See Article 11. See also Ö. EDSTRÖM, The Right to Collective Action, cit., pp. 61-63.
227 See Article 6.
228 See the 1989 Community Charter, section “Freedom of association and collective bargain-ing”, points 11-13.
75
organisations, based on the differences between the Member States, where the right to collective action may be defined as either a collective or an individual right. The right to exercise collective industrial action can be utilised to achieve collective labour agreements offering better employment conditions than workers could attain individually. In other words, trade unions, whose freedom of organi-sation is guaranteed, must be given the right to effectively act in support of work-ers. Thus, the right to bargain for collective agreements, strengthened by industrial action, is decisive for such effective action. Nevertheless, Article 28 states that the rights must be safeguarded in accordance with Union law and with national laws and practices.
On the one hand, not just procedural, but also substantive, national rules must be observed, because the European Union does not have exclusive competence in this field229. On the other hand, EU law, including EU objectives, values and pur-poses, must be considered. Under the first regard, in accordance with Article 153, paragraph 5 TFEU (former Article 137, paragraph 5 of the EC Treaty), measures taken for the development of a social dimension should not apply to certain mat-ters, including the right to strike. The Member States are in any case obliged to re-spect the EU law general principles, as already observed.
In relation to the lack of EU competence and the need to respect fundamental rights, it is necessary to mention the two decisions of the Court of Justice in the Viking and Laval cases230, in which it held that the right to strike is a fundamental right of the EU constitutional order, but it also recognised the need to balance workers’ rights with the economic freedoms. It may be observed that by affirming the priority of the market freedoms, the exercise of the right to collective action in the form of industrial action or strike may be compromised when facing a transna-tional situation, whilst they are permissible under domestic law231.In any case, the last word on the legitimacy of the collective action is left to the national judges. In those judgments, the Court has assessed, in accordance with EU free movement
229 See Article 153 TFEU.
230 See supra, in Chapter 2, para. 2.2.
231 T. NOVITZ, The Internationally Recognized Right to Strike: A Past, Present and Future Basis upon Which to Evaluate Remedies for Unlawful Collective Action?, in International Journal of Comparative Labour Law and Industrial Relations, 2014, Vol. 30, No. 3, pp. 357-379.
76
principles, the collective action taken by labour unions aimed at deterring corpo-rate migration (the undertakings wanted to reflag ships from their home country, Finland and Sweden, to new countries, Estonia and Latvia). In the Court of Jus-tice’s eyes, strikes, or collective actions, are legitimate (and justifiable re-strictions) only if they meet the conditions recognised by EU law and thus in so far as they do not impede cross-border commercial activity232. It seems that they can only have strategic and political objectives that do not prevail over the eco-nomic freedoms233. Accordingly, the autonomy of trade unions is limited. This finding demonstrates that «the right of trade unions to exercise their collective fundamental right is very seriously hampered by the application of internal market law»234.
In the Laval case, the Court found that trade unions had been exercising a fundamental right to take collective action recognised by EU law, but that its prac-tical exercise had led to barriers to inward investment that were disproportionate and thus constituted a restriction on the freedom to provide services235. Only non-discriminatory, justified and proportionate industrial action is lawful.
When are collective actions legitimate? To assess this issue, the aims of the collective action (strike or industrial action) must be taken into account. In his opinion in Laval case, Advocate General Mengozzi noted that «Article 49 EC [now Article 56 TFEU] cannot impose obligations on trade unions which might impair the very substance of the right to take collective action»236. He then speci-fied that the collective action shall be aimed, on the one hand, at defending the in-terests of trade union members and, on the other, at enabling them to pursue legit-imate objectives recognised by Community law, such as the protection of workers in general and the fight against social dumping in the Member State concerned.
232 On the restriction, see V. KOSTA, Fundamental Rights in EU Internal Market, cit., pp. 221-224.
233 S. WEATHERWILL, The Internal Market as a Legal Concept, cit., pp. 125-128.
234 B. DE WITTE, Balancing of Economic Law and Human Rights, cit., p. 206. See Court of Jus-tice (Grand Chamber), judgment of 11 December 2007, Viking, cit., paras. 44-47; (Grand Chamber), judgment of 18 December 2007, Laval, cit., para. 91 ff.
235 Court of Justice (Grand Chamber), judgment of 18 December 2007, Laval, cit., para. 99.
236 Advocate General Mengozzi, opinion delivered on 23 May 2007, Laval, cit., paras. 251-252.
77
Nevertheless, because the right is not absolute, its exercise must be reconciled with the European public interests represented by the economic freedoms, and in particular the free provision of services.
One may argue that the Court of Justice respects the right to collective bar-gaining, collective action and strike only within the limits of the economic free-doms as a clearly lower value and not as an equivalent fundamental right. In doing so, it adopts a negative approach that is restricted to industrial action taken sub-stantially by host country unions and not by posted workers237. On this latter is-sue, the situation not only gives rise to substantive problems (the protection of posted workers’ rights), but also legal questions related to the possibility for post-ed workers to be representpost-ed by host country trade unions and the potential effects on them238.
The Laval case is significant both for the proceedings instituted before the Court of Justice, and for the complaint submitted to the European Committee of Social Rights (ECSR) by the Swedish Trade Union Confederation (LO) and the Swedish Confederation of Professional Employees (TCO)239, and the involvement of the ILO Committee that reported on the respect for the ILO Conventions. The problem before the ECSR was that industrial action against a foreign employer was forbidden under the 2010 Lex Laval in violation of Articles 6 and 19 of the ESC and the ILO Convention No. 87. On the one hand, in its 2013 Report, the ILO Committee had requested that the Swedish Government «ensure that work-ers’ organisations representing foreign posted workers are not restricted in their rights simply because of the nationality of the enterprise»240. On the other hand,
237 R. BUSCHMANN, Tensions between Trade Union rights in the EU Charter of Fundamental Rights and the European Convention on Human Rights, 27 January 2015, available at https://courtsandcharters2.files.wordpress.com/2015/01/tensions-between-trade-unionrights-in-the-eu-charter-of-fundamental-rights-and-the-european-conventionon-human-rights.doc.
238 See further in Chapter 5.
239 ECSR, decision on admissibility and the merits of 3 July 2013 - 5 February 2014, Complaint No. 85/2012, Swedish Trade Union Confederation (LO) and Swedish Confederation of Pro-fessional Employees (TCO) v Sweden, available at http://hudoc.esc.coe.int. On this issue, see G. FONTANA, Crisi economica ed effettività dei diritti sociali in Europa, cit., pp. 25-26.
240 See International Labour Conference, 102nd Session, 5-20 June 2013, Report of the Commit-tee of Experts on the Application of Conventions and Recommendations, available at
78
after it stated its competence241, the ESCR affirmed that the Swedish legislation
«constitutes a disproportionate restriction on the free enjoyment of the right of trade unions to engage in collective action, in so far as it prevents trade unions taking action to improve the employment conditions of posted workers over and beyond the requirements of the above-mentioned conditions». The Committee found the violations of Articles 6(2) and (4) and 19(4)(a) and (b) of the Social Charter, because the legislation introduced restrictions on the freedom to strike and collective bargaining. It stated that such rights are necessary for other social rights and reflect the rights in the national Constitutions. Ultimately, the Commit-tee decision was in contrast with the findings of the Court of Justice.
This collective action in the Laval case has symbolic value: the trade unions applied to the ESCR to seek respect for international standards, because a collec-tive remedy aimed at protecting social rights is not available in the EU system242. In the context of the protection of human rights, with regard to the European Convention on Human Rights, the right to collective action, including the right to strike, is not explicitly mentioned. Nevertheless, the case law of the European Court of Human Rights has offered protection of the right to collective action un-der Article 11, which provides everyone with the right to freedom of peaceful as-sembly and of association, including the right to form and to join trade unions for
http://www.ilo.org. Previously, in the 2010 Report on the application of conventions and rec-ommendations, the ILO Committee addressed another case where EU law was concerned.
The BALPA (British Air Line Pilots Association) dispute regarded the employer’s reaction to the pilots’ call to strike in protest against the employer’s establishment of a daughter enter-prise in France. British Airways claimed that the collective action was not in compliance with EU law and the freedom to establishment and it may cause damages, based on the Court of Justice judgments in Viking and Laval cases. BALPA withdrew the action and claimed before the Committee the violation of ILO Convention by the United Kingdom. The Committee found that trade union’s rights were disregarded: see Application by the British Air Line Pi-lots Association to the International Labour Organisation Committee of Experts on the Appli-cation of Conventions and Recommendations against the United Kingdom for breach of ILO Convention No. 87.
241 See Complaint No. 85/2012, cit., para. 73.
242 S. SCIARRA, Pluralismo sindacale multilivello nella crisi. Gli orizzonti della Carta sociale europea, in Studi sull’integrazione europea, 2014, No. 2, pp. 237-246, spec. p. 240 ff.
79
the protection of his interests243. In fact, the Court has held that «strike action is an important method by which trade unions protect their members’ interests. It fol-lows that any restriction on the freedom to strike can be justified under Article 11, 2 ECHR only if ‘prescribed by law’, in pursuance of one or more legitimate aims, and ‘necessary in a democratic society’ for the achievement of those aims»244.
In his Concurring Opinion in Hrvatski Liječnički Sindikat v Croatia245, Judge Pinto de Albuquerque clarified the substance of the collective action and the strict connection with Article 11 ECHR. He observed that the right of association of workers consists of the following essential elements: the right to form and join a trade union, the prohibition of closed-shop agreements, the right to bargain collec-tively with the employer and the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members. Having regard to a democratic society, the Judge considered strike action as the ultimate practical
«means to persuade the employer to hear» the demands of the workers. He af-firmed: «If collective action represents the core of the workers’ freedom of asso-ciation, strike action is the core of the core»246. It follows that strike action should
243 M. ROCCA, Posting of Workers and Collective Labour Law, cit., p. 85 ff. and 224 ff. See also on this Article, F. DORSSEMONT, The Right to Take Collective Action under Article 11 ECHR, in F. DORSSEMONT,K.LÖRCHER,I.SCHÖMANN (edited by), The European Convention on Human Rights and the Employment relation, Oxford and Portland, Oregon, Hart Publishing, 2013, pp. 333-365; I. VAN HIEL, The Right to Form and Join Trade Unions Protected by Ar-ticle 11 ECHR, in F. DORSSEMONT,K.LÖRCHER,I.SCHÖMANN (edited by), The European Convention on Human Rights and the Employment relation, cit., pp. 287-308. On the Euro-pean Court case law concerning the right to strike see G. RAIMONDI, L’evoluzione della giuri-sprudenza della Corte europea dei diritti dell’uomo sulla libertà sindacale e il diritto di scio-pero, in Scritti in onore di Giuseppe Tesauro, Napoli, Editoriale Scientifica, 2014, pp. 591-600.
244 European Court of Human Rights, judgment of 21 April 2009, Application No. 68959/01, Enerji Yap-Yol Sen v Turkey, para. 25 ff.; see also judgment of 2 October 2014, Application No. 48408/12, Veniamin Tymoshenko and others v Ukraine.
245 European Court of Human Rights, judgment of 27 November 2014, Application No.
36701/09, Hrvatski Liječnički Sindikat v Croatia.
246 Concurring Opinion of Judge Pinto de Albuquerque, Hrvatski Liječnički Sindikat v Croatia, cit., para. 8.
80
be accorded the status of an essential element of Article 11 and thus be an integral part of the wider right to the freedom of association.
In other similar cases, the European Court interpreted the right to strike in so far as the freedom of association and the right to collective bargaining are consid-ered as a means for the employees to protect their occupational interests. In the Schmidt and Dahlström v Sweden case of 1976, the Court recognised that strike action was a means within trade union activities that could be applied to provide protection247. In the Unison v the United Kingdom decision of 2002, the Court stated that, «while the ability to strike represents one of the most important of the means by which trade unions can fulfil this function, there are others» and in the present case «the proposed strike must be regarded therefore as concerning the occupational interests of the applicant’s members in the sense covered by Article 11 of the Convention»248. In this regard, the Contracting States enjoy a wide mar-gin of appreciation and are left with the choice of the means by which the freedom of trade unions ought to be safeguarded249.
As to the right to collective bargaining, a notable case before the European Court of Human Rights is that of Demir and Baykara v Turkey of 2008250. It con-cerned the right to collective bargaining for public service employees, including the right to conclude collective agreements. The employer did not comply with
247 European Court of Human Rights, judgment of 6 February 1976, Application No. 5589/72, Schmidt and Dahlström v Sweden; see in this regard judgment of 2 July 2002, Applications Nos. 30668/96, 30671/96 and 30678/96, Wilson, National Union of Journalists and others v the United Kingdom.
248 European Court of Human Rights, decision of 10 January 2002, Application No. 53574/99, Unison v the United Kingdom.
249 European Court of Human Rights, decision of 10 January 2002, Unison, cit.; see also (Grand Chamber), judgment of 11 January 2006, Applications Nos. 52562/99 and 52620/99, Søren-sen and RasmusSøren-sen v Denmark.
250 European Court of Human Rights (Grand Chamber), judgment of 12 November 2008, Appli-cation No. 34503/97, Demir and Baykara v Turkey. For comments see K. LÖRCHER, The New
250 European Court of Human Rights (Grand Chamber), judgment of 12 November 2008, Appli-cation No. 34503/97, Demir and Baykara v Turkey. For comments see K. LÖRCHER, The New