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When the Commission gets involved in regulating the right to strike

The latest text proposed by the European Commission, at the end of March, the "Monti II" regulation, starts from a laudable intention... apparently: to clarify the confused situation arising from the Laval, Viking and other judgments of the Court of Justice of European Union (CJEU). But, in fact, the ideological presupposition of certain officials of the Commission quickly regained the upper hand. And analyzes the clarification as a reduction of a fundamental right. This poses a serious problem not only at the social level but also at the legal and political level. Because it consists, in fact, neither more nor less of diminishing the exercise of a fundamental right.

An ideological aim

The article on which this text is based is only a few lines long. But it is indicative of a state of mind. Its article 2 thus places economic and social freedoms, freedom of trade and the fundamental right to strike on the same footing. " The exercise of the freedom of establishment and the freedom to provide services set out in the Treaty respects the fundamental right to take collective action, including the right or freedom to strike, and, conversely, the exercise of the right collective action, including the right or freedom to strike, respects these economic freedoms. »

More surprising is the choice made by the Commission's specialists of the text format. This may seem complicated or a detail. But it matters! First of all, it was a catch-all article, “352”, which provided the legal basis for action. This article – by the Commission's own admission – “ is reserved for situations in which the treaties do not provide the powers required to implement the necessary actions, within the framework of the policies defined by the treaties ". This has, in fact, some advantages: avoiding the specific consultation procedure between social partners provided for any question relating to the " social policy ". And above all, circumvent the prohibition expressly enacted in the European Treaty (in article 153) of any action and harmonization in terms of the right to strike (like lockouts, remuneration or the right of association). According to the experts from DG Employment, who drafted this text, "the judgments of the Court clearly show that the fact that Article 153 does not apply to the right to strike does not mean, as such, that the Collective action is excluded from the scope of EU law. One can then ask why the European Commission uses the opposite argument to not oblige each Member State to establish a minimum wage?

Very useful for SMEs!

Next, the Commission did not choose a directive – which lays down the main principles and leaves it up to the Member States to choose the implementing measures – but a regulation – which is directly applicable. A choice dictated, officially, by pragmatic reasons. " The direct applicability of the Regulation will reduce regulatory complexity and provide greater legal certainty for those subject to the legislation across the Union, by providing a more uniform definition of the applicable rules. Clarity and simplicity of regulation are particularly important for SMEs. explains the European document. Amazing!

First of all, it is relatively inappropriate to justify, for a single economic category, SMEs; which is the application of a recognized fundamental right for all citizens and workers! Next, this proposal falls within a framework where national practices and legislation are divergent, marked by a different tradition and history. It seems difficult not to let each country adapt these principles to its own situation. Finally, can a simple European regulation outweigh mechanisms that are often guaranteed, or regulated, in countries by constitutional laws? This raises questions!

A very economical lens

In fact, the Commission barely conceals that the objectives of this proposal are above all economic. In her press release, she explains that she wants “ fostering quality jobs and increasing the EU's competitiveness by revising and improving the way the single market works, while safeguarding workers' rights ". The preservation of this fundamental right which is the right to strike therefore seems to be an annex...

The right to strike is not absolute and its exercise may be subject to certain conditions and restrictions, which may have result from national constitutions, laws and practices ". Member States " remain free to determine the conditions for the existence and exercise of the social rights in question ". But " when exercising this power, the Member States must respect Union law, and in particular the provisions of the Treaty relating to the freedom of establishment and the freedom to provide services, which are fundamental principles of the Union recalls the Commission in its preamble.

A framework that does not say its name

The project then establishes two principles for regulating the right to strike. One directly concerns workers and unions with the amicable settlement of the conflict (mediation and conciliation) and the possibility of intervention by the judge. The other is more aimed at governments with the establishment of an “alert mechanism” which could have significant indirect consequences on conflicts.

Amicable settlement of the conflict

If conflict resolution mechanisms have been established, equal access to them must be guaranteed in transnational or cross-border situations ". We do not know concretely to whom this equal access must be applied nor really in which situation. It can be estimated that in the event of a border blockage, an international road or rail axis, or even a major traffic node (in a capital or a large city), this mechanism could be activated. That is to say in many cases. Will employers' organizations and trade unions throughout Europe then take part in the amicable arrangements set up at national or even local level? This promises a nice mess...

Positive point (the only one?), this device recognizes the possibility for the European social partners to conclude agreements or to set up guidelines for mediation, conciliation or other mechanisms of extrajudicial conflict resolution. Is it necessary to underline that nothing already prevented to do it. A sword in the water !

The role of the judge in disputes

The use of these amicable mechanisms cannot prevent a party from taking legal action if an amicable resolution " does not lead to a solution within a reasonable time », Specifies the draft text. It does not “affect the role of national courts in matters of labor disputes, "particularly when it comes to assessing the facts and interpreting national legislation ". They will also have to determine whether and in which collective action under national rules and treaty law (collective agreements, or agreements, etc.).

An alert mechanism.

Member States will have to report to the European Commission and other Member States concerned " each time he finds himself confronted " at " serious acts or circumstances (affecting) the effective exercise of the freedom of establishment or the freedom to provide services " which can :
- seriously disrupt the proper functioning of the internal market;
- seriously harm its labor relations system;
- or cause considerable social unrest on its territory or on the territory of other Member States. »
A dialogue must begin: the State concerned must “immediately” inform the Member State “of establishment or origin of the service provider and/or the other Member States concerned, as well as the Commission”. Basically, everyone. Because if there is a demonstration on the public highway, all States are potentially concerned. " The Member State(s) concerned shall respond as soon as possible to requests for information from the Commission and from the other Member States concerning the nature of the obstacle or the risk of obstacle. Any information that the Member States send to each other is also communicated to the Commission. »

This draft presents some improvements compared to a first version of the text, transmitted to the social partners last February. It entrusted courts and tribunals with the task of verifying the appropriateness and necessity of collective action in relation to the objective pursued, in defiance of national practices which govern the exercise of the right to strike! It provided for the obligation for the State concerned not only to sound the “alert” but also to take the necessary measures to remedy it. This was "particularly intrusive" in the exercise of the right to strike and could also lead to some excesses... This project was rejected as "totally unacceptable" by the European Trade Union Confederation, and the Commission was asked to review its copy. The second draft is not really striking in its progressive spirit… It puts “social rights” and “economy” on the same footing. It elevates the principle of freedom to provide economic services to the rank of a supra-constitutional principle, national legislation giving way, in all cases, to this principle. It allows courts and tribunals to verify the legality of a collective action, without taking too much account of national habits and practices.

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).

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