relationship with the economic freedoms Dr. Marco Rocca (UHasselt, - - PowerPoint PPT Presentation

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

• rder 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

• bligations under Article 30 of the EC

Treaty, in conjunction with Article 5 of that Treaty, and under the common

• rganizations 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

• rganisations 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

• r 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

• nly the variant of the laser game the
• bject of which is to fire on human targets and

thus ‘play at killing’ people, the contested

• rder 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.”

Viking&Laval ▪ “As the Court held, in Schmidberger and Omega, the exercise of the fundamental rights at issue, that is, freedom of expression and freedom of assembly and respect for human dignity, respectively, does not fall outside the scope of the provisions of the Treaty. Such exercise must be reconciled with the requirements relating to rights protected under the Treaty and in accordance with the principle of proportionality”

Viking&Laval ▪ Application of fundamental freedoms to trade unions

▪ Analogy with sport associations case law (Walrave and Koch, Bosman) ▪ “compliance with Article 49 EC is also required in the case of rules which are not public in nature but which are designed to regulate, collectively, the provision of services. […] obstacles resulting from the exercise of their legal autonomy by associations or organisations not governed by public law” ▪  “trade unions participate in the drawing up

• f agreements seeking to regulate paid work

collectively”

When a man with a fundamental right meets a man with a fundamental freedom…

The test

Existence of a restriction Legitimate

• bjective

Proportionality

Restriction

▪ “any restriction, even if it applies without distinction to domestic service providers and to those of other Member States, when it is liable to prohibit, impede or render less attractive the activities of a service provider established in another Member State where he lawfully provides similar services”

Legitimate objectives

▪ Protection of workers

▪ “the protection of workers is one of the

• verriding reasons of public interest

recognised by the Court”

▪ Fight against social dumping

▪ “the right to take collective action for the protection of the workers of the host State against possible social dumping may constitute an overriding reason of public interest within the meaning of the case law of the Court”

Proportionality

▪ “suitable for ensuring the attainment of the legitimate

• bjective pursued and does not go

beyond what is necessary to achieve that objective” ▪ “whether that trade union had exhausted those means [which were less restrictive of the freedom of establishment] before initiating such action” (Viking)

Proportionality ▪ Viking  National court

▪ Not proportionate if “jobs or conditions of employment at issue were not jeopardised or under serious threat”

▪ Laval  not proportionate

▪ Posting of workers directive already sufficient to protect workers ▪ Lack of transparency (“provisions […] sufficiently precise and accessible that they do not render it impossible or excessively difficult in practice for such an undertaking to determine the obligations with which it is required to comply as regards minimum pay”)

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

Monti II proposal ▪ Proposal for a Regulation "on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services“ (2012)

Monti II proposal ▪ Proposal for a Regulation "on the exercise

• f the right to take collective action

within the context of the freedom of establishment and the freedom to provide services“ (2012) ▪ Notwithstanding lack of competence  Article 153(5) TFEU (social policy competences) ▪ “The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs”

Monti II proposal ▪ Legal basis is Article 352 TFEU ▪ “If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after

• btaining the consent of the European

Parliament, shall adopt […]”

▪ Article 2: “The exercise of the freedom

• f establishment and the freedom to

provide services enshrined in the Treaty shall respect the fundamental right to take collective action, including the right or freedom to strike, and conversely, the exercise of the fundamental right to take collective action, including the right or freedom to strike, shall respect these economic freedoms”

▪ Recital 11 -> “The exercise of the right to take collective action [...] and the requirements relating to the freedom

• f establishment and the freedom to

provide services may thus have to be reconciled, in accordance with the principle of proportionality”

▪ “Yellow cards” by 12 national parliaments ▪  Protocol 2 on the application of the principles of subsidiarity and proportionality ▪ BE, DK, FI, FR, LT, LU, MT, NL, PL, PT, SE, UK

▪ Many objecting on the actual content

▪ The Commission did not recognise the violation of the principle of subsidiarity but did withdraw the Proposal  impossible to find sufficient consensus

In the meantime…

▪ Social Progress Protocol (ETUC proposal, 2008)

▪ “Art. 3: […] Economic freedoms, as established in the Treaties, shall be interpreted in such a way as not infringing upon the exercise of fundamental social rights as recognised in the Member States and by Union law, including the right to negotiate, conclude and enforce collective agreements and to take collective action, and as not infringing upon the autonomy of social partners when exercising these fundamental rights in pursuit of social interests and the protection of workers”

▪ Commission v Germany (C-271/08) ▪ Collective agreement in the public sector ▪ Setting up of a pension scheme for employees of a municipality

▪ Identifying the pension provider in the collective agreement

▪ Infringement procedure brought by the Commission

▪ Application of public procurement procedures

▪ Commission v Germany

▪ “Furthermore, exercise of a fundamental right such as the right to bargain collectively may be subject to certain restrictions. In particular, while it is true that the right to bargain collectively enjoys in Germany the constitutional protection conferred, generally, by Article 9(3) of the German Basic Law upon the right to form associations to safeguard and promote working and economic conditions, the fact remains that, as provided in Article 28 of the Charter, that right must be exercised in accordance with European Union law”

▪ Commission v Germany ▪ “Exercise of the fundamental right to bargain collectively must therefore be reconciled with the requirements stemming from the freedoms protected by the FEU Treaty, which in the present instance Directives 92/50 and 2004/18 are intended to implement”

▪ Commission v Germany

▪ Contra AG Trstenjak “cross-proportionality” : ▪ “A fair balance between fundamental rights and fundamental freedoms is ensured in the case of a conflict only when the restriction by a fundamental right on a fundamental freedom is not permitted to go beyond what is appropriate, necessary and reasonable to realise that fundamental right. Conversely, however, nor may the restriction on a fundamental right by a fundamental freedom go beyond what is appropriate, necessary and reasonable to realise the fundamental freedom”

Fonnship (C-83/13)

▪ The Viking of the EEA

▪ Norwegian company, ship under Panama flag, operating between EEA countries ▪ Boycott in Swedish harbours: demand the conclusion of a collective agreement with ITF

Fonnship (C-83/13)

▪ The Viking of the EEA

▪ Norwegian company, ship under Panama flag, operating between EEA countries ▪ Boycott in Swedish harbours: demand the conclusion of a collective agreement with ITF

▪ Judge only asks about the applicability

• f EEA law to the facts

▪ Explicitly excludes the question on collective action

▪ “any restriction which, without objective justification, is liable to prohibit, impede or render less attractive the provision of those services must be declared incompatible with EU law. Where it is applicable, Regulation No 4055/86 transposes, in essence, the rules of the treaty relating to the freedom to provide services and the case law relating thereto. That case law includes the judgment in Laval un Partneri (C-341/05) relating to the compatibility of industrial action with the freedom to provide services” Fonnship

▪ UNIS, C-25/14 and C-26/14 ▪ A sectoral collective agreement establishing a sectoral pension scheme ▪ Extended erga omnes by the government ▪ Compatibility with freedom to provide services

▪ Cfr. Albany (competition law)

▪ UNIS

▪ “Although the obligation of transparency does not necessarily require there to be a call for tenders, it does require there to be a degree of publicity sufficient to enable, on the one hand, competition to be opened up and, on the other, the impartiality of the award procedure to be reviewed” ▪ Government can grant extension only “if the adoption of the decision extending the collective agreement appointing a single managing body is conditional upon the

• bligation of transparency being

complied with”

The rise of the freedom to conduct a business

▪ Art. 16 CFREU - Freedom to conduct a business

▪ “The freedom to conduct a business in accordance with Community law and national laws and practices is recognised”

▪ Alemo-Herron (C-426/11)

▪ “the interpretation of Article 3 of Directive 2001/23 [transfer of undertakings] must in any event comply with Article 16 of the Charter, laying down the freedom to conduct a business. […] It is apparent that, by reason of the freedom to conduct a business, the transferee must be able to assert its interests effectively in a contractual process to which it is party and to negotiate the aspects determining changes in the working conditions of its employees with a view to its future economic activity”

▪ AGET Iraklis (C-201/15)

▪ “Thus, a national regime imposing a framework [for collective redundancies] must seek, in this sensitive area, to reconcile and to strike a fair balance between the interests connected with the protection of workers and of employment, in particular protection against unjustified dismissal and against the consequences of collective dismissals for workers, and those relating to freedom of establishment and the freedom

• f economic operators to conduct a

business enshrined in Articles 49 TFEU and Article 16 of the Charter”

▪ Achbita (C-157/15) ▪ “An employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a business that is recognised in Article 16 of the Charter and is, in principle, legitimate […]. An interpretation to the effect that the pursuit

• f that aim allows, within certain limits, a

restriction to be imposed on the freedom of religion is moreover, borne out by the case-law of the European Court of Human Rights in relation to Article 9 of the ECHR”

A Clash of Kings

▪ ILO, Committee of Experts on the Application of Conventions and Recommendations (CEACR), United Kingdom

(2010) & Sweden (2013)

▪ “The Committee observes that when elaborating its position in relation to the permissible restrictions that may be placed upon the right to strike, it has never included the need to assess the proportionality of interests bearing in mind a notion of freedom of establishment

• r freedom to provide services”

▪ ILO CEACR

▪ “the doctrine that is being articulated in these ECJ judgements is likely to have a significant restrictive effect on the exercise of the right to strike in practice in a manner contrary to the Convention [No. 87]“ ▪ “The Committee takes the view that the

• mnipresent threat of an action for

damages that could bankrupt the union, possible now in the light of the Viking and Laval judgements, creates a situation where the rights under the Convention [n° 87] cannot be exercised”

▪ European Committee of Social Rights, Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO)

• v. Sweden, complaint 85/2012

▪ “the Committee recalls that, from the point of view of the system of values, principles and rights embodied in the Charter, the facilitation of free cross-border movement

• f services and the promotion of the freedom of

an employer or undertaking to provide services in the territory of other States – which constitute important and valuable economic freedoms within the framework of EU law – cannot be treated as having a greater a priori value than labour rights”

▪ European Committee of Social Rights ▪ “The ECSR further considers that legal rules relating to the exercise of economic freedoms established by State Parties either directly through national law or indirectly through EU law should be interpreted in such a way as to not impose disproportionate restrictions upon the exercise of labour rights as set forth by, further to the Charter, national laws, EU law, and other international binding standards”

▪ Report of the Secretary General of the Council of Europe on the State of Democracy Human Rights and the Rule of Law in Europe (2015)

▪ Report of the Secretary General of the Council of Europe on the State of Democracy Human Rights and the Rule of Law in Europe (2015)

▪“In 2013 the European Committee of Social Rights found a breach, inter alia, of the right to bargain collectively and the right to strike […] The measures in question had been adopted as a result of a judgment of the Court of Justice of the European Union. The decisions of the States Parties (resulting directly or indirectly from EU law) must conform to the rights enshrined in the

• Charter. Therefore we see an urgent need to find

pragmatic solutions to settle conflicts between the two sets of standards”

The Road through Strasbourg?

▪ Demir and Baykara v Turkey (34503/97)

▪ Recognition of the right to collective bargaining ▪ “The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs […]. The consensus emerging from specialised international instruments and from the practice of Contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases”

▪ Opinion 2/13 (accession of the EU to the ECHR)

▪ “In so far as Article 53 of the ECHR essentially reserves the power of the Contracting Parties to lay down higher standards of protection of fundamental rights than those guaranteed by the ECHR, that provision should be coordinated with Article 53 of the Charter, as interpreted by the Court of Justice, so that the power granted to Member States by Article 53 of the ECHR is limited […] to that which is necessary to ensure that the level of protection provided for by the Charter and the primacy, unity and effectiveness of EU law are not compromised”

▪ Bosphorus (45036/98)

▪ Presumption of equivalent protection of ECHR rights by the EU ▪ “If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation” ▪ Recently (2016) confirmed in Avotiņš v. Latvia (17502/07)

Thank you! ☺

marco.rocca@uhasselt.be marcorocca.wordpress.com @MarcoRocca_