EUROPE IN NEED OF A NEW DEAL:ON FEDERALISM, FREE MARKET,
AND THE RIGHT TO STRIKE
FEDERICO FABBRINI*
ABSTRACT
The Article analyzes the protection of the right to strike in Europe in acomparative perspective with the United States. The Article argues that theoverlap and interplay between state law and European Union (EU) law in thefield of industrial relations has generated major tensions. Although the protec-tion of collective labor rights varies widely across EU member states, thedevelopment of a judge-made standard for the regulation of industrial action atthe supranational level has challenged the effectiveness of the protection of theright to strike in most EU countries. In fact, the right to strike has been recognizedat the EU level, but has been subjected to significant limitations in order toensure free market principles. As the Article claims, nevertheless, the dynamicsthat Europe is currently experimenting are not sui generis and rather revealnumerous analogies with the constitutional experience of the United States. For along time tensions between social rights guarantees and free market rules havecharacterized the United States because of the interaction between state andfederal law. During the New Deal, however, the United States found a way toaddress the challenge of protecting labor rights in a federal system committed tothe free market by enacting federal legislation, such as the Wagner Act. TheArticle hence explores how additional reforms may be envisaged in the EUconstitutional system to strengthen collective labor rights vis-a-vis free marketprinciples and advances the argument that Europe should enact an EUregulation setting a standard for the protection of strike action in labor-management disputes having a cross-border dimension. Taking also into
account the unprecedented effects of the current economic crisis, the Articleconcludes that if Europe wants to take the right to collective action seriously andstrike a new balance between market integration and social protections, it needs aNew Deal.
TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1176II. THE PROTECTION OF THE RIGHT TO STRIKE AT THE STATE LEVEL
III. THE EUROPEAN COURT OF JUSTICE: CHALLENGING THE
PROTECTION OF THE RIGHT TO STRIKE IN EUROPE? . . . . . . . . . . 1194A. The Right to Strike in EU Law: Background . . . . . . . . . . . . 1194B. The Viking Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199C. The Laval Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1202D. The Impact of the Case Law of the European
Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1206IV. THE RIGHT TO STRIKE IN THE U.S. FEDERAL EXPERIENCE . . . . . . 1211
A. Methodological Considerations . . . . . . . . . . . . . . . . . . . . . 1211B. The Right to Strike Before the New Deal . . . . . . . . . . . . . . . 1214C. The Right to Strike During the New Deal . . . . . . . . . . . . . . 1217D. The Right to Strike After the New Deal . . . . . . . . . . . . . . . . 1219
V. THE EUROPEAN COURT OF HUMAN RIGHTS: TRANSFORMING THE
PROTECTION OF THE RIGHT TO STRIKE IN EUROPE? . . . . . . . . . . 1223A. The Right to Strike in ECHR Law: Developments . . . . . . . . 1223B. The Demir and Baykara Case . . . . . . . . . . . . . . . . . . . . . 1224C. The Enerji Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1230D. The Possible Impact of the Case Law of the European Court
In a celebrated chapter of the Integration Through Law series, the lateEuropean University Institute (EUI) Professor Mauro Cappelletti ex-
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plained how, both in the United States and in the (then) EuropeanCommunities (EC)—now the European Union (EU)—the federal/supranational judiciary played a major role in the creation of a freecommon market.1 In another chapter of the same volume it was alsoemphasized how
[F]ree trade and judicial review appear to be natural allies infederal systems of government, just as the reality of judicialreview tends to be associated with federalism. Judicial review, asthe American and European Founders realized, is potentially apowerful tool in the creation of any integrated economy. Itseems uniquely capable of filling in the gaps of a constitutionwhose ostensible purpose is to break down trade barriers amongstates.2
For more than twenty years since these words were written, the Euro-pean Court of Justice (ECJ) has continued contributing to fosteringeconomic integration in Europe.3 Nevertheless, increasingly in the lastfew years, the free market jurisprudence of the ECJ has come underscrutiny for the significant challenges that it poses to the protection ofsocial and labor rights at the state level.4 Although the ECJ hascommitted itself to protecting social rights,5 its case law has beencriticized for striking an inadequate balance between economic free-doms and labor rights and for undermining the protection that work-ers enjoy within the EU member states.6
The purpose of this Article is to analyze the complex interactionbetween free market principles and social rights guarantees in federal-
1. Mauro Cappelletti & David Golay, The Judicial Branch in the Federal and Transnational Union:Its Impact on Integration, in INTEGRATION THROUGH LAW: EUROPE AND THE AMERICAN FEDERAL
EXPERIENCE, VOLUME 1, BOOK 2, 261, 261 (Mauro Cappelletti et al. eds., 1986).2. Donald Kommers & Michael Waelbroeck, Legal Integration and Free Movement of Goods: The
American and European Experience, in INTEGRATION THROUGH LAW: EUROPE AND THE AMERICAN
FEDERAL EXPERIENCE, VOLUME 1, BOOK 3, 165, 168 (Mauro Cappelletti et al. eds., 1986).3. See MIGUEL POIARES MADURO, WE THE COURT: THE EUROPEAN COURT OF JUSTICE AND THE
EUROPEAN ECONOMIC CONSTITUTION (1998).4. See Sandra Fredman, Transformations or Dilution: Fundamental Rights in the EU Social Space, 12
EUR. L.J. 41 (2006).5. See generally Loıc Azoulai, The Court of Justice and the Social Market Economy: The Emergence of
an Ideal and the Conditions for its Realization, 45 COMMON MKT. L. REV. 1335 (2008).6. See Tonia Novitz, The Impact of Viking and Laval: Contesting the Social Function and Legal
Regulation of the Right to Strike, in COLLECTIVE ACTION AND FUNDAMENTAL FREEDOMS IN EUROPE:STRIKING THE BALANCE 251 (Edoardo Ales & Tonia Novitz eds., 2010).
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ism-based constitutional systems by studying the protection of the rightto strike in Europe in a comparative perspective with the UnitedStates.7 In particular, the Article explores the tensions that emergefrom the overlap and interplay between state law and EU law in theregulation of the right to strike and its possible solutions.8 As I argue,EU member states have traditionally devised diverse regimes for theprotection of the right to strike. The development at the EU level of ajudge-made standard for the protection of the right to strike, however,has significantly challenged national regulations in the field, highlight-ing points of friction between the conceptions of industrial actionallowed at the supranational level and at the domestic level.
Recently, the ECJ has acknowledged the existence of a fundamentalright to strike at the EU level.9 The ECJ, however, has balanced theright to strike with the need to ensure a free market throughoutEurope in which commerce can flow unhindered. This has led to amore restrictive standard for the protection of the right to strike at theEU level than at that of many EU member states. In other words,because of the growing impact of EU law on the regulation of strike law,the effectiveness of the protection of collective labor rights within asignificant number of EU member states has been challenged.
As this Article claims, the difficulties that Europe is currently experi-encing in protecting collective labor rights are not sui generis. Acomparative perspective reveals that tensions between competing fun-damental rights standards are a recurrent feature of federal arrange-ments premised on the establishment of a free market. Hence, dynam-
7. In this Article I will use interchangeably the words “strike,” “collective action,” and“industrial action” to describe in a rather generic way the conduct of deliberate suspension ofwork by a group of employee in furtherance of a dispute between labor and management. Seegenerally INDUSTRIAL CONFLICT: A COMPARATIVE LEGAL SURVEY (Benjamin Aaron & Lord Wedder-burn eds., 1972).
8. This Article will focus on the constitutional sources of labor law emerging from nationallaw, EU law, and the ECHR, and will not consider the international legal instruments set by theInternational Labor Organization (ILO). Of course, this is not to deny the substantive relevanceof ILO provisions in the protection of the right to strike. As I will report in the Article, indeed,both the ECJ and the ECHR have acknowledged the importance of ILO instruments and usedthem as a source of inspiration in their right to strike case law. The focus in this Article on theconstitutional instruments for the protection of the right to strike in Europe, however, isconsistent with the constitutional law approach I use in the Article and with the goal to develop acomparison with the constitutional system of the United States. See LABOUR RIGHTS AS HUMAN
RIGHTS (Philip Alston ed., 2005) (discussing the international protection of labor rights).9. See Case C-438/05, Int’l Transp. Workers’ Fed’n v. Viking Line ABP, 2007 E.C.R. I-10779.
See also Case C-341/05, Laval un Partneri Ltd. v. Svenska Byggnadsarbetareforbundet, 2007 E.C.R.I-11767.
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ics analogous to those at play in Europe have also historicallycharacterized the United States because of the interplay between stateand federal law.
In the early twentieth century, industrial action in the United Stateswas entirely regulated at the state level as the federal governmentlacked regulatory powers in the field of welfare. Federal courts, never-theless, scrutinized collective action for compliance with federal prin-ciples of freedom of commerce and anti-trust. Although the SupremeCourt ruled that the U.S. Constitution protected a right to strike, itplaced serious restrictions on the effective exercise of this right. Thisstate of affairs changed dramatically during the New Deal. In an effortto address an unprecedented economic crisis, the federal governmentembraced new powers in the field of labor legislation. A major piece inthe New Deal puzzle was represented by the Wagner Act,10 a statutethat overhauled the regulation of industrial relations by setting afederal standard for the protection of the right to strike. Technicallydrafted as an instrument to foster interstate commerce, the Wagner Actwas a successful attempt to address the tensions between state laborlaws and federal free market principles. Although subsequently weak-ened by congressional amendments and judicial constructions, theWagner Act originally struck a revolutionary balance between socialrights and free market in the United States, introducing a legislativestandard for the protection of industrial action at the federal level.
In light of the comparative examination of the U.S. experience in thefield of strike law, this Article examines whether, and how, the chal-lenges taking place in the European multilevel system can be ad-dressed. To this end, I consider the most recent transformations takingplace in the framework of the European Convention on Human Rights(ECHR).11 In two milestone decisions, the European Court of HumanRights (ECtHR) has recently recognized that collective bargaining andcollective action are fundamental rights protected under the ECHR.12
This development in the case law of the ECtHR, coupled with the entryinto force of the EU Lisbon Treaty in 2009, may represent a major force
10. 49 Stat. 452 (1937) (codified as amended at 29 U.S.C. §§ 151-169 (2006)).11. European Convention for the Protection of Human Rights and Fundamental Freedoms,
Nov. 4 1950, E.T.S. 5, available at http://www.unhcr.org/refworld/docid/3ae6b3b04.html [here-inafter ECHR].
12. See Demir and Baykara v. Turkey [GC], App. No. 34503/97, 2008 Eur. Ct. H.R. (Dec. 11,2008), at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i�001-89558. See also EnerjiYapi-Yol Sen v. Turkey, App. No. 68959/01 (Eur. Ct. H.R. Apr. 21, 2009), available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i�001-92266 (French only).
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for change in the protection of the right to strike at the supranationallevel in Europe. The Treaty of Lisbon, in fact, has established anobligation for the EU to accede to the ECHR and, once the accession iscompleted, EU institutions will be subject to review by the ECtHR. Thismay incentivize the ECJ to revise its right to strike jurisprudence in away that is more protective of labor along the lines drawn by theECtHR. Yet a number of uncertainties surround the effect of theaccession agreement, and it is difficult to predict with certainty whetherthe transformations taking place in the ECHR will offer a fully satisfac-tory answer to the challenges of ineffectiveness that currently character-ize the field of strike law. From this point of view, additional legislativedevelopments at the EU level might be necessary, and even advisable, ifEurope wants to address the federal dilemma of how to balance freemarket rules and social rights guarantees in a more legitimate way.
The Article is structured as follows. In Section II, I outline thenational regimes for the protection of the right to strike in Europe,identifying the main regulatory models and the relevant differencesthat exist between the member states in the protection of industrialaction. Section III highlights the growing impact of EU law on theregulation of collective action and analyze the critical implications ofthe case law of the ECJ. The ECJ has recognized a fundamental right tostrike at the EU level but has subjected it to significant limitations in thename of free market principles, thereby placing the protection ofindustrial action existing in many domestic regulatory models understrain. In Section IV, I undertake a comparative examination of theU.S. federal experience in the field of strike law and emphasize how theU.S. constitutional system has been historically characterized by strongfrictions between state labor legislation and the federal push to ensurea free common market. At the same time, I explain how the UnitedStates has addressed this state of affairs over time by shifting theprotection of strike action to the federal level via the enactment of NewDeal legislation. I then return to the current European situation and,in Section V, I assess the effect of the recent transformations takingplace in the framework of the ECHR. Here, I examine the recent caselaw of the ECtHR and discuss how it could influence the protection ofthe right to strike at the EU level after the entry into force of the LisbonTreaty and the accession of the EU to the ECHR. Finally, in Section VI,I reflect on how some additional reforms may be envisaged in theconstitutional system of the EU to strengthen the protection of indus-trial action vis-a-vis free market principles, and, to this end, I considerin a comparative perspective how the U.S. experience can informresponses to the challenges that the EU is currently facing.
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As the structure makes clear, the aim of the Article is mainlyanalytical. My intention is to analyze the complex constitutional phe-nomena taking place in the European multilevel architecture by usingthe historical experience of the United States as a powerful explanatorytool for contemporary European reality. By resorting to the compara-tive method I argue that it is possible to clarify the challenges emergingin the protection of the right to strike in Europe and to explain them inlight of the recurrent tensions between social rights and free marketrules, which also characterized the U.S. federal arrangement in theearly twentieth century. Albeit with a number of caveats, then, it seemsthat the U.S. experience can also provide some useful lessons for theEU on how to address the challenge of ensuring an effective protectionof the right to strike within a common transnational market. To thisend, in the final Section of the Article I will explore possible reformsthat Europe may undertake to enhance the protection of industrialaction. In this last part of the Article, I will adopt a normative stand and,in light of the U.S. experience, suggest that the EU should enact alegislative measure—an “EU Wagner Act,” so to speak—setting aregulatory standard for the protection of strike action in situationswhich currently fall under the scope of application of EU free marketrules. Needless to say, this proposal may spark controversy and readersmay disagree about the legal feasibility and political success of such alegal act. However, I endeavor to maintain that this solution—whichseems to have been recently embraced by the EU Commission in aMarch 2012 proposal for a regulation on the exercise of the right tostrike in the single market—may be a viable option to reduce thecurrent tensions between social rights and the free market in the EUconstitutional system.13
Thus far, the protection of social rights in Europe has been primarilyconceived as a task for the individual EU member states. However, thecreation of a free market of continental size has made it clear that laborprotection at the domestic level cannot be properly insulated fromreview by the supranational judiciary. This has led to the creation of ajudicial standard for the protection of collective labor rights at the EUlevel, which is less effective than the standards existing in many
13. On the difficulties of balancing fundamental social rights and free market principles inthe EU system of governance and for proposals on how to frame the debate on possible reforms inthis field, see Miguel Poiares Maduro, Europe’s Social Self: “The Sickness unto Death,” in SOCIAL LAW
AND POLICY IN AN EVOLVING EUROPEAN UNION 325 (Jo Shaw ed., 2000). See also STEFANO GIUBBONI,SOCIAL RIGHTS AND MARKET FREEDOM IN THE EUROPEAN CONSTITUTION: A LABOUR LAW PERSPECTIVE
(2006).
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member states. Through its freedom of movement jurisprudence, theECJ has set up, at the EU level, de facto regulation for cross-borderindustrial action that displaces states’ strike laws. However, endeavor-ing to reverse this trend by strengthening the sovereignty of themember states in the field of social legislation is wishful thinking.Rather, as the U.S. experience demonstrates, the tension betweentransnational free market principles and state social rights guaranteesin federalism-based systems of governance can be addressed by enact-ing legislation protecting labor rights at the supranational level. In theUnited States during the New Deal, it was understood that only a majortransfer of policy powers to the federal government would counter-balance the laissez-faire trends inherent in the interstate commonmarket. In this Article, I argue that Europe also needs to discusswhether to enact an EU regulation that would protect collective laborrights in ways analogous to the U.S. Wagner Act. The current economiccrisis makes the reflection about the need for a European New Deal allthe more pressing.
In anticipation of possible criticisms, I should point out that thisArticle is a study in comparative constitutional law, not comparative laborlaw. Of course, the right to strike is a labor law right, and many of themost inspiring sources that I use in my analysis are the works of laborlawyers. However, my intention here is to offer a different perspectiveon the status of industrial relations law in Europe and in the UnitedStates—one that focuses on the constitutional dynamics at play in thetwo systems and aims to explain the broad challenges that emerge fromthe interaction between state and supranational laws in multilevelconstitutional arrangements. Readers should therefore excuse omis-sions or overgeneralizations in the Article’s analysis of technical fea-tures of national or supranational collective labor regulations. In thefollowing pages I will rather attempt to explain that the complextensions that are emerging in the field of collective labor rights inEurope are part of a broader constitutional pattern. The emergence ofa multilevel, heterarchical architecture for the protection of fundamen-tal rights has generated in Europe phenomena typical of federalarrangements.14 This has challenged the effectiveness and the consis-
14. On the pluralist European architecture for the protection of fundamental rights and itscomparability with federal human rights systems, see AIDA TORRES PEREZ, CONFLICTS OF RIGHTS IN
THE EUROPEAN UNION: A THEORY OF SUPRANATIONAL ADJUDICATION (2009). See also Daniel Halbers-tam, Constitutional Heterarchy: The Centrality of Conflict in the European Union and the United States, inRULING THE WORLD: CONSTITUTIONALISM, INTERNATIONAL LAW AND GLOBAL GOVERNANCE 326 (JeffreyDunoff & Joel Trachtman eds., 2009).
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tency of fundamental rights standards in a plurality of policy areas.15
Labor law, specifically the protection of the right to strike, appears tobe subject to the same neo-federalist dynamics.
II. THE PROTECTION OF THE RIGHT TO STRIKE AT THE
STATE LEVEL IN EUROPE
The recognition of the right to strike in the legal systems of the EUmember states is a relatively recent phenomenon. Throughout thenineteenth century, collective bargaining and action by workers wereregarded as incompatible with the social and economic stability of thestate and harshly sanctioned in all European nations.16 Attempts torecognize industrial action partially succeeded in some Europeancountries during the 1920s, but were soon swept aside by the rise of thefascist dictatorships and the needs of World War II (WWII).17 “Ulti-mately, it was the victory of the democratic powers in western Europe atthe end of [WWII] that definitely secured toleration and recognition offree collective labour relations in [W]estern Europe.”18 Starting withFrance in 1946 and Italy in 1948, the right to strike was enshrined in theconstitutions of a number of European states. Legislatures and courtsfurther liberalized the right to strike in the United Kingdom,19 Ger-many,20 and Belgium21 during the 1950s. However, it was not until theirtransitions to democracy in the 1970s that a right to strike was recog-nized in Spain,22 Portugal23 and Greece.24 In the Netherlands, the rightto industrial action was formally recognized by the Hoge Raad, the
15. Federico Fabbrini, The European Multilevel System of Fundamental Rights Protection: A“Neo-Federalist” Perspective (Jean Monnet Ctr., Working Paper No. 15, 2010) (providing a generalanalytical framework for the study of these challenges).
16. Antoine Jacobs, Collective Self-Regulation, in THE MAKING OF LABOUR LAW IN EUROPE: ACOMPARATIVE STUDY OF NINE COUNTRIES UP TO 1945 193, 193 (Bob Hepple ed., 1986).
17. Id.18. Antoine Jacobs, Collective Labour Relations, in THE TRANSFORMATIONS OF LABOUR LAW IN
EUROPE: A COMPARATIVE STUDY OF FIFTEEN COUNTRIES 1945-2004 201, 201 (Bob Hepple & BrunoVeneziani eds., 2009).
19. See infra text accompanying notes 82-106.20. See infra text accompanying notes 63-74.21. Karl Abelshausen et al., Belgium, in THE RIGHT TO STRIKE: A COMPARATIVE PERSPECTIVE 9, 10
(Arabella Stewart & Mark Bell eds., 2008).22. See CONSTITUCION ESPANOLA [C.E.] [Spanish Constitution] art. 28(2), B.O.E. n.311, Dec.
29, 1978. The detailed regulation of collective action is provided by the Real Decreto-Ley 17/1977,de 4 de marzo 1977, sobre relaciones de trabajo [Royal Decree-Law 17/1977 of March 4, 1977 onlabor relations], B.O.E. n.58, Mar. 9, 1977, which was enacted prior to the adoption of theConstitution. The act was however later re-interpreted in an important judgment by the Tribunal
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Supreme Court, only in 1986.25 Finally, while strikes played a majorrole in the Polish Solidarnosc (Solidarity) movement of the 1980s, theright to take collective action became constitutionally protected inPoland26 and other Central and Eastern European countries only afterthe collapse of the Communist regime in the early 1990s.27
The historical experience of each European country has largelyshaped the way in which the right to strike is protected at the nationallevel.28 Hence, a broad constitutional protection of the right to strike isquite common in the new democracies of Southern and EasternEurope—largely in reaction to the repressive practices of the fascistand communist regimes.29 Northern European states, meanwhile, of-ten protect the right to strike exclusively through ordinary legislationand subject it to more severe restrictions. At the same time, the natureof the social and political forces prevailing in each Western Europeancountry in the post-WWII period explains major regional variations.For instance, Western democracies with powerful Communist parties(such as Italy and France) have codified the right to strike in an attemptto strengthen the role of the labor movement and to enshrine newprinciples of social justice in their constitutions.30 This need has beenless compelling where the labor movement was integrated within the
Constitucional [Constitutional Court] which made it compatible with the new Constitution. SeeS.T.C. Apr. 8, 1981 (S.T.C. No. 11/1981).
23. See CONSTITUICAO DA REPUBLICA PORTUGUESA [C.R.P.] [PORTUGUESE CONSTITUTION] art. 57,available at http://app.parlamento.pt/site_antigo/ingles/cons_leg/Constitution_VII_revisao_definitive.pdf.
24. See Jacobs, supra note 18, at 201.25. HR 30 mei 1986 [May 30, 1986], NJ 1986, 688 m.nt PAS (Spoorwegstaking) [Railway
Strike]. For an assessment of the Dutch regulation of strikes, see also Sarah Rook et al., TheNetherlands, in THE RIGHT TO STRIKE: A COMPARATIVE PERSPECTIVE supra note 21, at 80 (explainingthat protection of the right to strike in Dutch law was based on the recognition that Article 6 of theEuropean Social Charter, which protects a right to strike, has direct application in the Nether-lands).
26. See infra text accompanying notes 82-89.27. Fanny Jacquelot, Les Droits Sociaux Fondamentaux dans les Pays d’Europe Centrale et Orientale
[Fundamental Social Rights in the Countries of Central and Eastern Europe], in LES DROITS SOCIAUX
FONDAMENTAUX: ENTRE DROITS NATIONAUX ET DROIT EUROPEEN [FUNDAMENTAL SOCIAL RIGHTS: BE-TWEEN NATIONAL RIGHTS AND EUROPEAN LAW] 149, 149 (Laurence Gay et al. eds., 2007).
28. See generally TONY JUDT, POSTWAR: A HISTORY OF EUROPE SINCE 1945 (2005) (discussingdifferent political and economic developments in post-WWII Europe).
29. See Jacobs, supra note 18, at 202.30. See 1946 CONST. pmbl. § 2 (Fr.) (stating that the Republic “proclaims, moreover, the . . .
political, economic and social principles which are particularly necessary in our times”); Art. 3(2)Costituzione [Cost.] [Constitution] (It.) (“It is the duty of the Republic to remove the economicand social obstacles which, by limiting de facto the liberty and equality of the citizens, prevent the
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political process (as in the United Kingdom) or where a tradition ofsocial partnership already existed (as in Scandinavia).
Although there are relevant differences in the degree of protectionthe right to strike enjoys in the legal systems of the EU member states, itis useful, for analytical purposes, to classify the various national regimesinto several regulatory models. Needless to say, many classifications ofthe European legislations are possible in the abstract,31 but for thepurpose of this Article, I will identify four models of the protection ofthe right to strike that can be ideally placed along a continuum frommore liberal to more restrictive. To evaluate the nature of each model Iconsider several specific criteria. The first element is whether the rightto strike is recognized as a fundamental constitutional right rather thanas a statutory entitlement or a simple immunity from common lawrules. The second factor is whether the right to strike is an individual ora collective right to be exercised only by trade unions. The thirdelement concerns the procedures that must be followed to exercise theright to strike, as well as the limitations that apply to the right to strikeand the substantive conditions that justify it. The final element con-cerns the consequences connected with the exercise of the right tostrike, i.e., the implications of the strike on the individual employmentcontract.
A. The French and Italian Model
France and Italy offer one model of regulation, characterized by anenhanced protection of the right to strike. The Preamble to the FrenchConstitution of 1946 (which is recalled by the Preamble to the Constitu-tion of 1958) recognizes “the right to strike . . . in the framework of thelaws that regulate it.”32 In almost identical words, Article 40 of the 1948Italian Constitution affirms that “the right to strike is exercised in theframework of the laws that regulate it.”33 In both legal systems, the rightto strike has a solid constitutional foundation and can be counted as afundamental right of the individual to be exercised collectively (and
full development of the human person and the effective participation of all workers to thepolitical, economic and social organization of the country.”).
31. See Arabella Stewart, A Comparative Perspective on the Right to Strike, in THE RIGHT TO STRIKE:A COMPARATIVE PERSPECTIVE, supra note 21, at 5. See also WIEBKE WARNEK, STRIKE RULES IN THE EU 27AND BEYOND: A COMPARATIVE OVERVIEW (2007).
not as a right of the trade unions).34 Moreover, in both France andItaly, the constitutional provisions on the right to strike have not beenimplemented through ordinary legislation (except in the field ofpublic services);35 domestic courts have therefore assumed the task ofgiving direct application to these constitutional clauses and of definingthe scope and the limits of the right to strike.
As such, France’s Cour de Cassation (Supreme Court) has strictlyenforced the constitutional guarantee of the right to strike, denyingthat it can be restricted by a collective agreement and an obligation ofindustrial peace.36 According to the case law of the French labor courts,a strike must express a professional claim (including in the form of asolidarity action), and therefore purely political strikes should beregarded as unlawful. Nevertheless, the Cour de Cassation has acknowl-edged the legitimacy of strikes that have a “macro-social goal,”37 defacto sanctioning the lawfulness of strikes that “aim at influencing thesocial and economic policy of the government which has a directimpact on working conditions.”38
A very wide understanding of the meaning of the right to strike hasalso been adopted in Italy by the Corte di Cassazione (Supreme Court).39
The Court affirmed that the motivation for a strike is immaterial todeciding its legitimacy and recognized the admissibility of all forms ofprotests considered by the workers themselves as the most effective toachieve their desired goal, such as the sympathy strike, the articulatestrike, and the politico-economic strike.40 Meanwhile, the Corte Costitu-zionale (Constitutional Court) has derived from Article 40 of the ItalianConstitution the legitimacy of the political strike, unless done with thegoal of overthrowing the constitutional order.41 Being a fundamentalindividual right, the right to strike can be freely exercised—without anya priori need to comply with mediation or other procedural require-
34. MARC MOREAU, LA GREVE [STRIKE] (1998). See also GINO GIUGNI, DIRITTO SINDACALE [TRADE
UNION LAW] 214 (2003).35. See infra text accompanying note 52.36. Cour de cassation [Cass.] soc., June 7, 1995, Bull. civ. V, No. 180 (Fr.).37. JEAN-EMMANUEL RAY, DROIT DU TRAVAIL, DROIT VIVANT [RIGHT TO WORK, LIVING RIGHT] 606
(16th ed. 2007).38. Loredana Carta et al., France, in THE RIGHT TO STRIKE: A COMPARATIVE PERSPECTIVE, supra
note 21, at 27, 41.39. Cass., 30 gennaio 1980 [Jan. 30, 1980], n.711, Giur. it. 1980, I, 1, 1022 (It.).40. Niccolo Delli Colli et al., Italy, in THE RIGHT TO STRIKE: A COMPARATIVE PERSPECTIVE, supra
note 21, at 65, 71.41. Corte Cost., 19 dicembre 1974 n.290 [Dec. 19, 1974], Racc. uff. corte cost. 1974 (It.);
ments and without any a posteriori consequences on individual employ-ment contracts. In addition, since the 1970 enactment of the Workers’Statute,42 which protects employees’ rights in the workplace,43 Italianlaw “guarantees striking workers and employees who take part in tradeunion activities the absence of any kind of repercussions [from theemployer] other than the loss of pay.”44
In light of its constitutional status, the right to strike in Italy can berestricted only to uphold equivalent constitutional values.45 To ensurea proper balancing of the right to strike with other essential personalrights, the Italian Parliament in 1990 enacted a framework statute46
regulating the right to strike in the sector of essential public services,such as health care, education, administration of justice, police, publictransportation, etc.47 The statute represents a far-reaching attempt todevise a comprehensive regulation for industrial conflicts in publicservices, with a view to protecting the rights of the users and ensuring areasonable “conciliation of the exercise of the right to strike with theenjoyment of the [other] constitutional rights of the individual.”48 Thestatute requires trade unions to give due notice of their willingness tostrike and to indicate the duration of the suspension from work and itsform.49 During a strike, workers must in any case ensure minimalservices, as defined through collective agreements or in the tradeunions’ self-regulatory codes.50 The statute finally empowers a newlyestablished Guarantee Committee to review the self-regulatory codes oftrade unions, ensure that the legislative procedures are respected, andsanction unlawful strikes.51
42. Legge 20 marzo 1970 [Law of Mar. 20, 1970], n. 300(1) (It.).43. For an introductory assessment to the Workers’ Statute, see GIUGNI, supra note 34, at 95.44. Delli Colli et al., supra note 40, at 75.45. The same is true for France. However, unlike Italy, France does not have a legislative
framework balancing of the right to strike with other constitutional interests. As a consequence,this endeavor is undertaken by French courts through ordinary adjudication. See BertrandMathieu & Michel Verpeaux, La Garantie des Droits et Libertes [The Guarantee of Rights and Freedoms],in LE CONSEIL CONSTITUTIONNEL [THE CONSTITUTIONAL COUNCIL] 91, 106-107 (Michel Verpeaux &Maryvonne Bonnard eds, 2007).
46. Legge 12 giugno 1990 [Law of June 12, 1990], n.146 (It.).47. See GIOVANNI ORLANDINI, SCIOPERO E SERVIZI PUBBLICI ESSENZIALI NEL PROCESSO
D’INTEGRAZIONE EUROPEA [STRIKES AND ESSENTIAL PUBLIC SERVICES IN THE PROCESS OF EUROPEAN
INTEGRATION] (2003).48. Legge 12 giugno 1990 [Law of June 12, 1990], n.146, art. 1(2) (It.).49. Id. art. 2(1).50. Id. art. 2(2).51. Id. art. 12.
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B. The Nordic Model
A second model of state regulation of the right to strike emergesfrom the legal tradition of the Nordic countries. In both Finland and inSweden, the right to strike is solidly grounded in the state constitu-tion.52 At the same time, both systems largely delegate the function ofregulating industrial conflicts to social partners (i.e., labor unions andemployer associations) through collective agreements, reflecting thehistorical ability of the main union confederations to centralize collec-tive bargaining.53 In the Swedish legal system, Article 2(17) of theConstitution affirms that “a trade union or an employer or employers’association shall be entitled to take industrial action unless otherwiseprovided in an act of law or under an agreement.”54 The right to go onstrike is thus centralized in the trade unions. The spectrum of actionwhich is regarded as permissible is, however, very broad and encom-passes secondary actions, as well as boycotts and blockades.55 At thesame time, collective agreements usually provide for peace obligations,which prohibit strikes unless the objective of the industrial action fallsoutside the scope of the collective agreement. According to the 1976Codetermination Act,56 unions must notify their decision to stopworking at least seven working days before the strike, in order to ensurethe possibility of a mediation procedure.57
Similarly, in Finland, the right for unions to strike is derived from thefreedom of association and to conduct collective bargaining enshrinedin Article 13 of the Constitution.58 Under Finnish law, workers andemployers are even entitled to take secondary action and politicalstrikes, and the right to strike has been interpreted by courts as being“permitted for a wide range of reasons and in a wide variety of forms.”59
Just as in Sweden, however, collective agreements include peace obliga-tions, which prohibit industrial action during the timeframe in which a
52. For a broader assessment of the constitutional protection of social rights in the Nordiccountries focusing mostly on positive social rights, see WELFARE STATE AND CONSTITUTIONALISM—NORDIC PERSPECTIVES (Martin Scheinin ed., 2001).
53. See Torgeir Aarvaag Stokke, Conflict Regulation in the Nordic Countries, 8 TRANSFER: EUR.REV. LAB. & RES. 670, 670 (2002).
54. REGERINGSFORMEN [RF] [CONSTITUTION] 2:17 (Swed.).55. See WARNEK, supra note 31, at 68.56. LAG OM MEDBESTAMMANDE I ARBETSLIVET [ACT ON INVOLVEMENT IN WORKING LIFE] (Med-
bestammandelagen [Employment Act] 1976:580) (Swed.).57. See Stokke, supra note 53, at 676.58. SUOMEN PERUSTUSLAKI [CONSTITUTION OF FINLAND] § 13 (Fin.).59. WARNEK, supra note 31, at 28.
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collective contract is in force, except when the strike concerns an issuethat is not regulated in the collective agreement.60 Moreover, Finland’slegislation and the agreements between national trade unions andemployers’ associations require “anyone intending to commence astrike . . . to give written notice—stating the reasons for the strike, itsstarting time[,] and the extent of the stoppage—to the opposed partyand to the Office of the National Conciliation Officers at least [four-teen] days beforehand.”61 In the Nordic countries, therefore, a solidprotection of the right to strike is coupled with wide room for collectiveautonomy, based on the assumption that social partners are capable ofadopting a responsible and cooperative stand in the resolution ofindustrial disputes.62
C. The German and Polish Model
A third model of regulation of the right to strike exists in countrieslike Germany and Poland. The German system is characterized by thefact that the right to strike does not enjoy any formal constitutionalprotection.63 Article 9(3) of Germany’s Basic Law (i.e., its constitution)recognizes the freedom of association to safeguard and improve work-ing and economic conditions.64 In this context, it has been up to thehighest domestic courts to derive from this provision a protection ofthe right to strike.65 By 1955, the Bundesarbeitsgericht (Federal LaborCourt) recognized a right to strike in the German legal system as anessential component of the right to collective bargaining for employersand employees.66 Nevertheless, in Germany, the right to strike hasnever been interpreted as an individual right but rather as a tradeunion’s right.67 “Only those associations which are allowed to concludecollective agreements have the right to call a strike.”68 In addition, in
60. See generally JARI HELLSTEN, FROM INTERNAL MARKET REGULATION TO EUROPEAN LABOUR LAW
(2007).61. See WARNEK, supra note 31, at 29.62. See generally NIKLAS BRUUN ET AL., THE NORDIC LABOUR RELATIONS MODEL (1992).63. See Franziska Klaß et al., Germany, in THE RIGHT TO STRIKE: A COMPARATIVE PERSPECTIVE,
supra note 21, at 53, 54.64. GRUNDGESETZ FUR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW],
May 23, 1949, BGBl. I art. 9(3) (Ger.).65. Klaß et al., supra note 63, at 55.66. THOMAS BLANKE ET AL., KOLLEKTIVES ARBEITSRECHT [COLLECTIVE LABOR], VOLUME II,
236-237 (1975).67. See Olaf Deinert, Collective Action in Germany: A Union-Based System, in COLLECTIVE ACTION
AND FUNDAMENTAL FREEDOMS IN EUROPE: STRIKING THE BALANCE, supra note 6, at 53.68. Klaß et al., supra note 63, at 56.
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Germany, the right to strike has traditionally been surrounded “withnumerous limitations, such as the peace obligation during the term ofa collective agreement and a prohibition on striking for conflicts ofrights, as distinct from conflicts of interests.”69 The German system, infact, takes a strictly contractual view of industrial conflict, legitimizingonly those strikes that aim to enhance the bargaining position of theemployees (and prohibiting political or solidarity strikes).
The most characteristic feature of the German regulatory model,however, is represented by the so-called principle of ultima ratio. Thisprinciple represents the application in the field of labor law of thegeneral constitutional principle of Verhaltnismaßigkeit, or proportional-ity.70 According to this principle, “a strike is only legal if it is necessaryand the ultimate measure to solve the industrial conflict.”71 As aconsequence, trade unions do not enjoy an unconditional right topursue collective action, even when, in their view, a strike would be themost effective tool to strengthen their bargaining position. “In keepingwith the principle of last resort, all possibilities of a peaceful negotia-tion for settlement must have been exhausted” before a trade unioncan go on strike.72 Labor courts are therefore empowered to assess theproportionality of the industrial action undertaken by the trade unionsand can sanction illegal strikes by requiring offending trade unions topay damages. Historically, industrial relations between employees’unions and employers’ associations have been very cooperative inGermany, and this has kept industrial action to a minimum.73 Yet bypermitting strikes only when they are proportionate, German lawdesigns a rather restrictive model of regulation of the right to strike,which ensures wide protection for other constitutional values, such asthe right to property and freedom of commerce.74
A regulation of strike akin to the German one also exists in Poland.In the Polish system, the right to strike is formally enshrined as a tradeunion’s prerogative in Article 59(3) of the Constitution, which affirmsthat “trade unions shall have the right to organize workers’ strikes or
69. Jacobs, supra note 18, at 212.70. On the principle of proportionality in German law generally, see Dieter Grimm,
Proportionality in Canadian and German Constitutional Jurisprudence, 57 U. TORONTO L.J. 383 (2007).71. Klaß et al., supra note 63, at 56.72. WARNEK, supra note 31, at 33.73. See Klaß et al., supra note 63, at 54.74. The existence of the principle of proportionality in the German system is what makes the
German model more restrictive than the Nordic one. See Stokke, supra note 53, at 683 (explainingthat “principles concerning proportionality do not play any important role in the Nordiccountries”).
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other forms of protest subject to limitations specified by statute.”75 Thedetailed regulation of the permitted limits of industrial action is thenprovided in the 1991 Act on the Settlement of Collective LaborDisputes.76 As in Germany, however, in Poland industrial action is onlypermitted for disputes over interests, rather than rights: as such,“[s]trikes of political or more generally socio-economic nature are notincluded in th[e statutory] definition.”77 The law, in addition, sets upan obligation for trade unions to engage in negotiations and mediationprocedures with employers before going on strike.78 Finally, underPolish law, the “strike is treated by the legislator (as well as in jurispru-dence . . . ) as a last resort measure, only to be organized when all otherpossibilities to solve the conflict have failed.”79 According to the 1991Act, indeed, the choice of trade unions to go on strike must be theultima ratio.80 Hence, the Polish legal regulation of the right to strikealso appears to be based on a strict “proportionality rule: when takingthe decisions to call a strike, the party representing employee interestsshall ensure that demands are commensurate with the losses that thestrike entails, not only in relation to the parties in dispute but also tothird parties.”81
D. The British Model
The most restrictive regulation of the right to strike, however, isprovided by the United Kingdom’s model. Traditionally, under Englishcommon law, the voluntary interruption of work by employees did notenjoy any protection and was, in fact, punished by courts as a tort and abreach of contract.82 In the early years of the twentieth century, and
75. Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 [Constitution of April 2,1997] r. art. 59, sec. 3 (Pol.).
76. Ustawa z dnia 23 maja 1991 r. o rozwiazywaniu sporow zbiorowych [Act of May 23, 1991on the Settlement of Collective Labor Disputes] (Dz. U. z dnia 26 czerwca 1991 r.) [OfficialGazette of June 26, 1991] (Pol.).
77. Joanna Unterschutz & Krzysztof Wozniewski, Industrial Relation within the Polish LegalSystem—Why the CJEU Judgments Have Little Effect on Poland, in RECONCILING FUNDAMENTAL SOCIAL
RIGHTS AND ECONOMIC FREEDOMS AFTER VIKING, LAVAL, AND RUFFERT 159, 167 (Andreas Bucker &Wiebke Warnek eds., 2011).
78. See WARNEK, supra note 31, at 56.79. Unterschutz & Wozniewski, supra note 77, at 168.80. Ustawa z dnia 23 maja 1991 [Act of May 23, 1991] art. 17(3).81. Unterschutz & Wozniewski, supra note 77, at 169.82. See Taff Vale Ry. Co. v. Amalgamated Soc’y of Ry. Servants, [1901] A.C. 426 (H.L.) 445
(appeal taken from Eng.) (holding trade unions liable under the common law for damage causedby industrial action).
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again after WWII, the United Kingdom enacted several statutes to allowworkers to undertake industrial action.83 However, “the statutory provi-sions which permit the organization of industrial action and participa-tion in such action are framed in terms of immunities from the tortiousand criminal liability that would otherwise attach.”84 As such, it can beargued that “there is no fundamental right to strike” in the UnitedKingdom.85 In the British legal system, the strike is rather a freedom“regulated by statute and common law.”86 The legislative framework forthe exercise of the freedom to strike has been the object of severalsubsequent reforms, especially during the 1980s, under the pressurebrought to bear by the Conservative Governments. Currently, it issynthesized in Part V of the Trade Unions and Labour Relations(Consolidation) Act of 1992 (TULRCA).87
According to the TULRCA, an “act done by a person in contempla-tion or furtherance of a trade dispute is not actionable in tort on theground only—(a) that it induces another person to break a contract orinterferes or induces another person to interfere with its perfor-mance.”88 The definition of a “trade dispute” for the purposes ofTULRCA is to be found in the so-called “golden formula,” i.e., section244.89 No industrial action is permitted if its goal is to ensure aclosed-shop policy90 or to impose union recognition.91 Furthermore,
83. See Jacobs, supra note 18, at 212.84. Ruth Dukes, The Right to Strike Under U.K. Law: Not Much More than a Slogan?, 39 INDUS. L.J.
82, 82 (2010).85. WARNEK, supra note 31, at 70.86. David Barrett et al., The United Kingdom, in THE RIGHT TO STRIKE: A COMPARATIVE
PERSPECTIVE, supra note 21, at 97.87. Trade Unions and Labour Relations (Consolidation) Act, 1992, c. 52 (U.K.) [hereinafter
TULRCA].88. Id. § 219(1).89. Id. § 244 (stating that “[i]n this Part a ‘trade dispute’ means a dispute between workers
and their employer which relates wholly or mainly to one or more of the following—(a) terms andconditions of employment, or the physical conditions in which any workers are required to work;(b) engagement or non-engagement, or termination or suspension of employment or the dutiesof employment, of one or more workers; (c) allocation of work or the duties of employmentbetween workers or groups of workers; (d) matters of discipline; (e) a worker’s membership ornon-membership of a trade union; (f) facilities for officials of trade unions; and (g) machinery fornegotiation or consultation, and other procedures, relating to any of the above matters, includingthe recognition by employers or employers’ associations of the right of a trade union to representworkers in such negotiation or consultation or in the carrying out of such procedures”).
90. Id. § 222.91. Id. § 225.
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the law prohibits secondary strikes92 and political strikes: indeed, only“strikes which involve a trade dispute between a trade union and therelevant employer are protected and the accepted motivation tends tobe restricted to economic reasons.”93 The TULRCA, then, sets out avery detailed procedure which trade unions must follow before takingindustrial action: unions must take a ballot to verify the support of theworkers in favor of the strike,94 notify the employer (not later than theseventh day before the opening day of the ballot) that the unionsintend to hold the ballot,95 and provide the employer with a list of thecategories of employees to which the ballot will be proposed.96 As soonas is reasonably practicable after the holding of the ballot, the tradeunion must take such steps as are reasonably necessary to ensure thatall persons entitled to vote in the ballot and the employer are informedof the results.97 A ballot in relation to industrial action ceases to beeffective after four weeks.98
Besides the existence of strict procedures limiting and conditioningthe exercise of the right to strike, British law has traditionally alsoprovided very limited protection to workers engaging in industrialaction.99 Until recently, the jurisprudential stand was that “[a]ny formof industrial action by a worker is a breach of contract.”100 Only in 1999was the TULRCA modified by the Employment Relations Act (ERA)101
to provide a remedy against unfair dismissal for employees who tookprotected industrial action. Accordingly, an employee must be re-garded as “unfairly dismissed if—(a) the reason (or, if more than one,the principal reason) for the dismissal is that the employee tookprotected industrial action”102 and if the dismissal took place within aprotected period of eight weeks (later increased to twelve weeks by theEmployment Relations Act of 2004).103 At the same time, the guaranteeagainst unfair dismissal does not operate in favor of workers who take
92. Id. § 224(1).93. Barrett et al., supra note 86, at 101.94. TULRCA § 226.95. Id. § 226A.96. Id.97. Id. §§ 231-231A.98. Id. § 234.99. See Barrett et al., supra note 86, at 102-03.100. Miles v. Wakefield Metro. Dist. Council, [1987] A.C. 539 (H.L.) 559 (appeal taken from
Eng.) (opinion of Templeman, L.).101. Employment Relations Act, 1999, c. 26 (U.K.) [hereinafter ERA].102. TULRCA § 238A(1) (introduced by ERA § 16, sch. 5).103. Employment Relations Act, 2004, c. 24, § 26(3) (U.K.).
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unofficial action.104 Moreover, under British law, “even where employ-ees are found to have been unfairly dismissed, they cannot be rein-stated against the wishes of the employer, and so the only remedy iscompensation.”105 As a consequence, the U.K. legal system provides arather hostile environment for workers willing to go on strike and cancertainly be described as the most restrictive model of regulation of theright to strike Europe-wide.106
In conclusion, a rapid overview of the regulation of the right to strikein the European legal systems reveals that there exist “marked differ-ences between the specific regulations on strikes existing in the various[EU] States.”107 Many EU member states such as France, Italy, Spain,and Portugal ensure the highest possible protection of the right tostrike, enshrining it in their constitutions. In some states, social part-ners have no role in the regulation of the right to strike while inothers—notably the Nordic countries—collective bargaining repre-sents a core component of the legal framework in which industrialaction can be taken. Countries such as Germany and Poland are insteadendowed with a legislative framework for protecting the right to strike,which empowers labor courts to exercise a pervasive proportionalityanalysis to verify the lawfulness of collective action. Finally, the UnitedKingdom has an extremely restrictive legislation, which refuses torecognize the strike as a right and treats it rather as a statutory freedomsubject to strict substantive and procedural requirements. Above thispluralism of state laws operates, however, an increasingly importantsupranational law.
III. THE EUROPEAN COURT OF JUSTICE: CHALLENGING THE PROTECTION OF
THE RIGHT TO STRIKE IN EUROPE?
A. The Right to Strike in EU Law: Background
The question of whether European supranational law protects socialrights, and specifically the right to strike, has long beset labor lawyers108
104. TULRCA § 237.105. Barrett et al., supra note 86, at 104.106. See Tonia Novitz, Collective Action in the United Kingdom, in COLLECTIVE ACTION AND
FUNDAMENTAL FREEDOMS IN EUROPE: STRIKING THE BALANCE, supra note 6, at 173.107. Tiziano Treu, Regulation of Strikes and the European Social Model, 8 TRANSFER: EUR. REV. OF
LAB. & RES. 608, 614 (2002).108. See LAMMY BETTEN, THE RIGHT TO STRIKE IN COMMUNITY LAW (1985). See also TONIA
NOVITZ, INTERNATIONAL AND EUROPEAN PROTECTION OF THE RIGHT TO STRIKE (2003).
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and constitutional scholars.109 The project of European integrationhad been inspired since its foundation by the goal of enhancing theeconomic and social conditions of the European peoples.110 Yet anumber of legal constraints and institutional weaknesses seemed toprevent a full recognition of the right to strike in the EU legal order. Tostart, the founding treaties of the EC did not include any provisionregarding the right to strike.111 Rather when the 1997 Treaty ofAmsterdam112 expanded the competences of the EC into the field ofsocial policy, a provision was inserted in the founding treaties—Article137(5) of the EC Treaty113 now renumbered by the Treaty of Lisbon114
as Article 153(5) of the EU Functioning Treaty (TFEU)115—to excludethe application of the EC’s new competences from “the right ofassociation, the right to strike[,] or the right to impose lock-outs.”116
Secondly, in 1989, the EC proclaimed a Community Charter of Funda-mental Social Rights of Workers (CCFSRW), which, inter alia, protecteda right to resort to collective action.117 The CCFSRW, however, was notsigned by all the (then) twelve member states, since the United
109. See Antonio Baldassarre, Diritti Sociali [Social Rights], in XII ENCICLOPEDIA GIURIDICA
[ENCYCLOPEDIA OF LAW] 1 (1989).110. It is well known that in the post-WWII period, the political elites of the six EC founding
member states were powerfully committed toward the protection of social rights, as evidenced bythe strong recognition that labor rights enjoyed in the national constitutions adopted at that time.In the view of the member states, otherwise, the creation of a free common market under the aegisof the EC was conceived as an instrument for the economic and social progress of the Europeansocieties, which in the mid-long run would have benefitted workers with better wages and workingconditions. See Treaty Establishing the European Economic Community pmbl., Mar. 25, 1957, 298U.N.T.S. 11 (affirming “as the essential objective of [the member states’] efforts the constantimprovement of the living and working conditions of their peoples”).
111. CATHERINE BARNARD, EC EMPLOYMENT LAW 747 (3d ed. 2006).112. Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establish-
ing the European Communities and Certain Related Acts, Oct. 2, 1997, 1997 O.J. (C 340) 1[hereinafter Treaty of Amsterdam].
113. Consolidated Version of the Treaty Establishing the European Community art. 137(5),Dec. 24, 2002, 2002 O.J. (C 325) 33, 93-94 [hereinafter EC Treaty].
114. Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishingthe European Communities, Dec. 13, 2007, 2007 O.J. (C 306) 1 [hereinafter Treaty of Lisbon].
115. Consolidated Version of the Treaty on the Functioning of the European Union art.153(5), March 3, 2010, 2010 O.J. (C 83) 47, 116 [hereinafter TFEU].
116. Id.117. See Community Charter of the Fundamental Social Rights of Workers ¶ 13, Dec. 9,
1989, available at http://www.aedh.eu/plugins/fckeditor/userfiles/file/Conventions%20internationales/Community_Charter_of_the_Fundamental_Social_Rights_of_Workers.pdf [hereinaf-ter CCFSRW].
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Kingdom abstained from any commitment to this instrument.118 TheCCFSRW, moreover, lacked any binding force, being intended as apolitical declaration to be implemented by the member states accord-ing to the principle of subsidiarity. Lastly, the ECJ showed great“judicial circumspect[ion]”119 in protecting the right to strike. Al-though the ECJ acknowledged that the EC institutions’ staff enjoyed aright to form trade unions and to act for the protection of its inter-ests,120 for a long time it did not officially endorse the opinion ofAdvocate General Jacobs in Albany International121 that “the right totake collective action in order to protect occupational interests . . .is also protected by [EC] law.”122
At the same time, “the lack of a fundamental social right in [EC]sources [was] not totally compensated for by [the] reference[s] to theECHR”123 and the European Social Charter (ESC)124 contained in theEU treaties.125 Indeed, major obstacles toward the protection of a rightto strike also seemed to exist in the legal framework of the Council ofEurope.126 On the one hand, the 1950 ECHR only enshrined a cata-logue of civil and political liberties, with almost no attention for social
118. See Stephen J. Silvia, The Social Charter of the European Community: A Defeat for EuropeanLabor, 44 INDUS. & LAB. REL. REV. 626, 638 (1991). Note that the TFEU, supra note 115, art. 151 (exEC Treaty, supra note 113, art. 136), as amended by the Treaty of Amsterdam, supra note 112, nowmakes an express reference to the CCFSRW, supra note 117, as an inspiration for the EU in theexercise of its competence in the sphere of social policy.
119. NOVITZ, supra note 108, at 245.120. See Case 175/73, Union Syndicale v. Council, 1974 E.C.R. 917 (holding that EC officials
have the right to form organizations of their own choosing and that these associations are free todo anything lawful to protect the interests of their employees); Case 18/74, Syndicat General duPersonnel des Organismes Europeens v. Comm’n, 1974 E.C.R. 933 (same).
121. Case C-67/96, Albany Int’l BV v. Stichting Bedrijfspensioenfonds Textielindustrie, 1999E.C.R. I-5751 (holding that collective agreements fall outside the scope of application of the ECcompetition rules).
122. Id. ¶ 159 (Jacobs, Advocate Gen., joined opinion).123. Silvana Sciarra, From Strasbourg to Amsterdam: Prospects for the Convergence of European Social
Rights Policy, in THE EU AND HUMAN RIGHTS 483, 484 (Philip Alston ed., 1999).124. European Social Charter, Oct. 18, 1961, E.T.S. 35, available at http://www.unhcr.org/
refworld/docid/3ae6b3784.html [hereinafter ESC].125. As it is well known, EC Treaty, supra note 113, art. 6—as introduced by the Treaty of
Maastricht, Consolidated Version of the Treaty on European Union, Dec. 24, 2002, 2002 O.J.(C 325) 5—included a reference to the ECHR. In addition, the TFEU, supra note 115, art. 151 (exEC Treaty, supra note 113, art. 136), as amended by the Treaty of Amsterdam, supra note 112,makes an express reference to the ESC as an inspiration for the EU social policy competences.
126. See Stefan Clauwaert, Transnational Primary and Secondary Collective Action: An Overview ofInternational, European and National Legislation, 8 TRANSFER: EUR. REV. OF LAB. & RES. 624, 627-28(2002).
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and economic rights. Article 11 of the ECHR affirms that “[e]veryonehas the right to freedom of peaceful assembly and to freedom ofassociation with others, including the right to form and to join tradeunions for the protection of his interests.”127 Yet the ECtHR denied,until recently,128 that Article 11 could be interpreted as protecting aright to strike.129 The ECtHR instead repeatedly held that Article 11imposed a duty on the contracting parties to set up domestic mecha-nisms to enable trade unions to represent their members130 but thatthis did not include a right to collective bargaining131 or collectiveaction.132
On the other hand, the ESC—enacted in 1961 and revised in1996—included an explicit provision, Article 6(4), protecting “theright of workers and employers to collective action in case of conflictsof interest, including the right to strike.”133 The ESC, however, did notinclude any effective mechanism to enforce this right.134 Complianceby the signatory states is ensured through periodic reviews and only in1995 was an optional Protocol adopted to allow trade unions andemployers’ organizations to bring a complaint before the European
127. ECHR, supra note 11, art. 11(1).128. See infra Section V.129. M. Forde, The European Convention on Human Rights and Labor Law, 31 AM. J. COMP. L. 301
(1983).130. See Nat’l Union of Belgian Police v. Belgium, App. No. 4464/70, 1 Eur. H.R. Rep. 578
(1979) (holding that ECHR art. 11 attributes to trade unions a right to be heard but not a right tobe consulted).
131. See Swedish Engine Drivers’ Union v. Sweden, App. No. 5614/72, 1 Eur. H.R. Rep. 617(1979) (holding that ECHR art. 11 does not attribute to trade unions a right to conclude collectiveagreements); Wilson v. United Kingdom, App. No. 30668/96 (2002) (holding that ECHR art. 11does not include a right to collective bargaining but that the state has a positive obligation tosecure enjoyments of rights under Article 11).
132. See Schmidt v. Sweden, App. No. 5589/72, 1 Eur. H.R. Rep. 632 (1979) (upholding aSwedish restriction of the right to strike on the understanding that the strike is an importantmeans by which union members can protect their interests but that there are also other venues);Unison v. United Kingdom, App. No. 53574/99, [2002] I.R.L.R. 497 (Eur. Ct. H.R.) (upholding aBritish restriction of the right to strike as justified under ECHR art. 11).
133. ESC, supra note 124, art. 6(4).134. Under the 1961 ESC, contracting parties were required exclusively to submit reports on
the extent of their compliance with the ESC to a Committee of Independent Experts nominatedby the Council of Europe’s Committee of Ministers. For a description of the original supervisorysystem of the ESC, see Alexandre Berenstein, The System of Supervision of the European Social Charter,in THE FUTURE OF EUROPEAN SOCIAL POLICY 41 (Lammy Betten et al. eds., 1989).
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Committee of Social Rights (ECSR).135 Compared to the supervision ofthe ECtHR, review by the ECSR appears extremely weak, as it is“hampered by State control.”136 Hence, neither the ECHR nor the ESCworked as an effective bulwark for the protection of the right to strikeat the European level from which the EU institutions could drawinspiration.
Nevertheless, in the last decade, a number of legal and jurispruden-tial developments have reshaped the framework for the protection ofthe right to strike at the supranational level, highlighting a growinginfluence of EU law in the regulation of industrial action. To beginwith, in 2000 the EU institutions proclaimed an EU Charter of Funda-mental Rights (Charter of Rights).137 The Charter’s goal was to restatethe case law of the ECJ in the field of fundamental rights. In fact,however, the Charter included a number of innovative provisions andquite remarkably merged a set both of civil and political rights and ofsocial and economic rights. Hence, Charter of Rights Article 28 of theCharter of Rights (located in Chapter IV, entitled “Solidarity”) codifiesa right of collective bargaining138 and action and reads: “Workers andemployers, or their respective organisations, have, in accordance withUnion law and national laws and practices, the right to negotiate andconclude collective agreements at the appropriate levels and, in casesof conflicts of interest, to take collective action to defend their inter-ests, including strike action.”139
Until the entry into force of the Treaty of Lisbon,140 the Charter ofRights was not vested with binding value.141 Yet drawing, inter alia, onthe Charter of Rights, the Grand Chamber of the ECJ in two jointdecisions delivered on December 3, 2007—International Transport Work-ers’ Federation v. Viking142 and Laval un Partneri Ltd. v. Svenska Byggnadsar-
135. On the new supervisory mechanism, see Robin R. Churchill & Urfan Khaliq, TheCollective Complaints System of the European Social Charter: An Effective Mechanism for EnsuringCompliance with Economic and Social Rights?, 15 EUR. J. INT’L L. 417 (2004).
136. NOVITZ, supra note 108, at 241.137. Charter of Fundamental Rights of the European Union, Dec. 18, 2000, 2000 O.J. (364) 1
[hereinafter Charter of Rights].138. On the Charter of Rights and the protection of labor rights, see Bernard Ryan, The
Charter and Collective Labour Law, in ECONOMIC AND SOCIAL RIGHTS UNDER THE EU CHARTER OF
FUNDAMENTAL RIGHTS—A LEGAL PERSPECTIVE 67 (Tamara K. Hervey & Jeff Kenner eds., 2003).139. Charter of Rights, supra note 137, tit. IV art. 28.140. Treaty of Lisbon, supra note 114.141. See infra Section VI.142. Case C-438/05, Int’l Transp. Workers’ Fed’n v. Viking Line ABP, 2007 E.C.R. I-10779.
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betareforbundets143—held that the right to strike is a fundamental rightof the EU constitutional order.144 In these decisions, however, the ECJdesigned a standard for the protection of the right to strike that differsfrom that existing in a number of EU member states.145
B. The Viking Case
In Viking, the ECJ was confronted with a preliminary reference fromthe Court of Appeal for England and Wales. The case in the mainproceeding concerned a Finnish company, Viking Line, which oper-ated ferry services between Helsinki, Finland and Tallinn, Estonia.Viking was running its business at a loss and wished to relocate its placeof establishment to Estonia in order to benefit from lower wages.Viking’s plan to reflag its vessels was met with opposition by the FinnishSeamen’s Union (FSU) and its international partner, the London-based International Transport Workers’ Federation (ITWF). To pre-vent the relocation, FSU threatened to take industrial action againstViking, and ITWF requested that its Estonian affiliates refuse to enterinto negotiations with Viking. Viking brought a case before a U.K.tribunal to enjoin FSU and ITWF from striking. In its complaint, Vikingargued that the industrial action taken by the FSU, with the support ofITWF, was preventing Viking from relocating its vessels to Estonia andwas thus interfering with its freedom of movement under EU law. TheCourt of Appeals therefore asked the ECJ whether the collectiveactions by FSU and ITWF fell outside the scope of EU law or, if not,whether they were justified, that is, whether they constituted an unwar-ranted restriction of the free movement rules enshrined in Article 43 ofthe EC Treaty (now Article 49 of the TFEU).146 In his opinion,Advocate General Maduro acknowledged that the case presented theECJ with an issue of “great sociopolitical sensitivity . . . [touching] onthe relationship between social rights and the rights to freedom of
143. Case C-341/05, Laval un Partneri Ltd. v. Svenska Byggnadsarbetareforbundets adv. 1,Byggettan, 2007 E.C.R. I-11767.
144. For a comment on the decisions, see, e.g., Alicia Hinarejos, Laval and Viking: The Right toCollective Action versus EU Fundamental Freedoms, 8 HUM. RTS. L.R. 714, 714 (2008); Judy Fudge,Constitutionalizing Labour Rights in Europe, in THE LEGAL PROTECTION OF HUMAN RIGHTS 244 (TomCampbell & Keith Ewing eds., forthcoming 2012).
145. See generally A. Davies, One Step Forward, Two Steps Back? The Viking and Laval Cases in theECJ, 37 INDUS. L.J. 126 (2008); Norbert Reich, Free Movement v. Social Rights in an EnlargedUnion—the Laval and Viking Cases Before the ECJ, 9 GERMAN L.J. 125 (2008).
146. EC Treaty, supra note 113, art. 43 (now TFEU, supra note 115, art. 49).
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movement.”147
The ECJ clearly answered the first question of the referring judge bystating that collective action by trade unions “falls, in principle, withinthe scope of Article 43 [of the] EC [Treaty],”148 and it consequentlyrejected a number of observations that had been raised by the mainparties to the proceedings and by the intervening governments. First,the ECJ discarded the Danish government’s argument that Article137(5) of the EC Treaty excluded the competence of the EU in thisfield. The ECJ stated that “the fact that Article 137 [of the] EC [Treaty]does not apply to the right to strike or to the right to impose lock-outs isnot such as to exclude collective action . . . from the application ofArticle 43 [of the] EC [Treaty].”149 Secondly, the ECJ refused to applyby analogy the Albany International doctrine, underlining how Albanyconcerned the application of competition rules whereas Viking con-cerned freedom of movement.150 Most importantly, however, the ECJrejected the idea that industrial action fell outside the scope of EU lawbecause the right to strike was a fundamental right. In a remarkableparagraph, the ECJ affirmed instead that
[T]he right to take collective action, including the right tostrike, is recognised both by various international instrumentswhich the Member States have signed or cooperated in, such asthe [ESC]—to which, moreover, express reference is made inArticle of 136 the EC [Treaty]—and Convention No. 87 concern-ing Freedom of Association and Protection of the Right toOrganise, adopted on [] July [9,] 1948 by the InternationalLabour Organisation—and by instruments developed by thoseMember States at [the EC] level or in the context of the [EU],such as the [CCFSRW] . . . and the [Charter of Rights].151
The ECJ thus held that “the right to strike, must . . . be recognised as afundamental right which forms an integral part of the general prin-ciples of [EC] law the observance of which the Court ensures.”152
Having recognized for the first time in its jurisprudence that theright to strike is part of the constitutional principles of the EU legal
order, however, the ECJ underlined how the exercise of that right maynonetheless be subject to limitations to ensure the protection of otherfundamental EU freedoms. Hence, the ECJ moved to examine whetherthe collective action by the FSU and ITWF represented a restriction ofthe right of free movement, and whether it could be regarded asjustified. According to the ECJ, it could not be disputed that “collectiveaction such as that envisaged by FSU ha[d] the effect of making lessattractive, or even pointless . . . Viking’s exercise of its right to freedomof establishment” and constituted a “restriction on freedom of establish-ment within the meaning of Article 43 [of the] EC [Treaty].”153 Toassess whether the restriction of Viking’s free movement right wasjustified, the ECJ engaged in a proportionality analysis of the industrialaction by the FSU and ITWF. Advocate General Maduro had empha-sized how such analysis required a balancing of competing interests,arguing that, “[a]lthough the [EC Treaty] establishes the commonmarket, it does not turn a blind eye to the workers who are adverselyaffected by its negative traits. On the contrary, the European economicorder is firmly anchored in a social contract.”154 Echoing his words, theECJ noticed that “the activities of the [EC] are to include not only an‘internal market characterised by the abolition, as between MemberStates, of obstacles to the free movement of goods, persons, servicesand capital’, but also ‘a policy in the social sphere.’”155
Yet in drawing its balancing test, the ECJ affirmed that the industrialaction by the FSU and ITWF would only be justified if it pursued theprotection of workers and if it represented an ultima ratio for the tradeunions. The ECJ, in particular, invited the state court to review156
whether
[T]he jobs or conditions of employment of the FSU’s membersliable to be adversely affected by the reflagging of the [vessel][we]re in fact jeopardised or under serious threat[,] . . .whether the collective action initiated by FSU [wa]s suitable forensuring the achievement of the objective pursued[,] and
153. Id. ¶ 74.154. Id. ¶ 59 (opinion of Maduro, Advocate Gen.).155. Id. ¶ 78 (judgment) (quoting EC Treaty, supra note 113, arts. 3(1)(c), (j)).156. It may be noted that the Court of Appeal for England and Wales which had referred the
preliminary question to the ECJ never decided the case because, after the decision of the ECJ, theparties decided to settle the dispute.
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[whether it did] not go beyond what [wa]s necessary to attainthat objective.157
Moreover, the ECJ affirmed that it was for the national court toexamine
[W]hether, under the national rules and collective agreementlaw applicable to that action, FSU did not have other means atits disposal which were less restrictive of freedom of establish-ment in order to bring to a successful conclusion the collectivenegotiations entered into with Viking, and, on the other,whether that trade union had exhausted those means beforeinitiating such action.158
Hence, the ECJ concluded that
[C]ollective action such as that at issue in the main proceed-ings, which seeks to induce an undertaking whose registeredoffice is in a given Member State to enter into a collective workagreement with a trade union established in that State and toapply the terms set out in that agreement to the employees of asubsidiary of that undertaking established in another MemberState, constitutes a restriction within the meaning of [Article 43of the EC Treaty]. That restriction may, in principle, be justifiedby an overriding reason of public interest, such as the protec-tion of workers, provided that it is established that the restric-tion is suitable for ensuring the attainment of the legitimateobjective pursued and does not go beyond what is necessary toachieve that objective.159
C. The Laval Case
The issue of the right to strike played a central role in another casedecided by the ECJ just days after Viking: the Laval case.160 In Laval, theSwedish Labor Court (Arbetsdomstolen) had raised a preliminary ques-tion before the ECJ in the context of the proceedings between Laval, acompany incorporated under Latvian law, and three Swedish trade
unions operating in the building sector. Pursuant to the EU provisionson the freedom to provide services, Laval concluded a contract with aSwedish developer to construct a school in the city of Vaxholm,Sweden. To complete the works, Laval posted a number of Latvianworkers to Sweden. These workers were members of the Latvianbuilding sector’s trade union, and Laval was bound by the conditionsset in the Latvian collective agreement for the building sector. Soonafter beginning work in Sweden, Laval was asked by the Swedish tradeunions to conclude the Swedish collective agreement for the buildingsector, which required Laval to pay a higher wage to its Latvian workers.Refusal by Laval to enter into an agreement triggered industrial actionby the Swedish unions, through a blockade and a sympathy strike,which de facto prevented Laval from continuing its construction works.Laval therefore brought a case before the Swedish Labor Court toobtain, first, a declaration that the collective action by the Swedishunions affecting Laval’s worksite was unlawful; second, an order thatsuch action should cease; and, third, an order that the trade unions paycompensation for the loss suffered by Laval. In its reference, the LaborCourt asked the ECJ whether the industrial action by the trade unionsin the case at hand could be regarded as compatible with the freedomto provide services enshrined in Article 49 of the EC Treaty (nowArticle 56 of the TFEU).161 As such, Laval raised a problem analogousto that of Viking, requiring the ECJ “to weigh the exercise by tradeunions of their right to resort to collective action to defend workers’interests . . . against the exercise, by an undertaking established in the[European] Community, of its freedom to provide services, a fundamen-tal freedom guaranteed by the EC [Treaty].”162
After assessing in detail the legal regime for the transnationalposting of workers provided by the EU Posted Workers Directive163 andits implementation through collective agreements in Sweden,164 theECJ turned to the question which is of interest for this Article: whetherthe industrial action taken by the Swedish unions was compatible withArticle 49 of the EC Treaty on freedom to provide services. To reply to
161. EC Treaty, supra note 113, art. 49 (now TFEU, supra note 115, art. 56).162. Laval, 2007 E.C.R. at I-11772, I-11774 (opinion of Mengozzi, Advocate Gen.) ¶ 3.163. Directive 96/71 of the European Parliament and of the Council of 16 December 1996
Concerning the Posting of Workers in the Framework of the Provision of Services, 1997 O.J. (L 18)1 (EC) [hereinafter Posted Workers Directive].
164. On the issues relating to the interpretation of the Posted Workers Directive raised byLaval, see Claire Kilpatrick, Laval’s Regulatory Conundrum: Collective Standard-Setting and the Court’sNew Approach to Posted Workers, 34 EUR. L. REV. 844 (2009).
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this question, the ECJ first rejected the arguments advanced as amicicuriae by the Swedish and Danish governments, that collective actionfell outside the scope of EU law, since it constituted a fundamentalright. Using the same language employed in Viking, the ECJ
[R]ecalled that the right to take collective action is recognisedboth by various international instruments which the MemberStates have signed or cooperated in, such as the [ESC]—towhich, moreover, express reference is made in Article 136 [ofthe] EC [Treaty]—and Convention No[.] 87 of the Interna-tional Labour Organisation concerning Freedom of Associa-tion and Protection of the Right to Organise of 9 July 1948—and by instruments developed by those Member States at [EC]level or in the context of the [EU], such as the [CCFSRW . . . ]and the [Charter of Rights].”165
As in Viking, however, the ECJ remarked that “[a]lthough the right totake collective action must therefore be recognised as a fundamentalright which forms an integral part of the general principles of [EC] lawthe observance of which the Court ensures, the exercise of that rightmay nonetheless be subject to certain restrictions.”166
The ECJ clarified that “the fundamental nature of the right to takecollective action [wa]s not such as to render [EU] law inapplicable tosuch action, taken against an undertaking established in anotherMember State which posts workers in the framework of the transna-tional provision of services.”167 Hence, the ECJ began its analyticalreview of whether the industrial action at hand constituted a restrictionon the freedom to provide services, and, if so, whether it could bejustified. According to the ECJ, it was not hard to acknowledge that thestrike by the Swedish trade unions was “liable to make it less attractive,or more difficult, for [Laval] to carry out construction work in Sweden,and therefore constitute[d] a restriction on the freedom to provideservice.”168 The ECJ then assessed whether the restriction was propor-tionate on the understanding that,
[S]ince the [EC] has thus not only an economic but also a socialpurpose, the rights under the provisions of the []EC [Treaty]
165. Laval, 2007 E.C.R. at I-11884.166. Id.167. Id. at I-11885.168. Id. at I-11886.
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on the free movement of goods, persons, services and capitalmust be balanced against the objectives pursued by socialpolicy, which include, as is clear from the first paragraph ofArticle 136 [of the] []EC [Treaty], inter alia, improved livingand working conditions, so as to make possible their harmonisa-tion while improvement is being maintained, proper socialprotection and dialogue between management and labour.169
In light of the social objectives pursued by the EU, the ECJ stated that“in principle, blockading action by a trade union of the host MemberState which is aimed at ensuring that workers posted in the frameworkof a transnational provision of services have their terms and conditionsof employment fixed at a certain level, falls within the objective ofprotecting workers.”170
However, the ECJ held that
[A]s regards the specific obligations, linked to signature of thecollective agreement for the building sector, which the tradeunions seek to impose on undertakings established in otherMember States by way of collective action such as that at issue inthe case in the main proceedings, the obstacle which thatcollective action forms c[ould] not be justified with regard tosuch an objective.171
In his opinion, Advocate General Mengozzi had suggested drawing adistinction in the assessment of the action of the Swedish trade unions,i.e., declaring the strike proportional to the objectives of protectingworkers and combating social dumping “in so far as it sought to imposethe rate of pay provided for by the [Swedish] collective agreement”172
while declaring the strike as going “beyond what is necessary to ensurethe protection of workers and to prevent social dumping”173 insofar asit sought to impose on Laval all the terms and conditions of thecollective agreement for the construction sector. The ECJ did notfollow Advocate General Mengozzi’s reasoning. Instead, the ECJ statedthat the collective action at issue could not be justified even if itpursued an increase of salaries since the context for negotiations on
169. Id. at I-11888.170. Id.171. Id. at I-11889.172. Id. (opinion of Mengozzi, Advocate Gen.).173. Id. at I-118836.
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pay in Sweden was “characterised by a lack of provisions, of any kind,which are sufficiently precise and accessible that they do not render itimpossible or excessively difficult in practice for such an undertakingto determine the obligations with which it is required to comply asregards minimum pay.”174 Therefore, the ECJ concluded that a tradeunion’s collective action in the form of a blockade “to force a providerof services established in another Member State to enter into negotia-tions with it on the rates of pay for posted workers and to sign acollective agreement the terms of which lay down, as regards some ofthose matters, more favourable conditions than those resulting fromthe relevant legislative provisions”175 was incompatible with Article 49[of the] []EC [Treaty].176
D. The Impact of the Case Law of the European Court of Justice
The decisions of the ECJ in Viking and Laval represent an importantstep forward in the protection of the right to strike at the supranationallevel in Europe and underline the increasing impact that EU lawexercises on the regulation of social rights. For the first time, the ECJrecognized the right to strike as a fundamental right and ruled that theright for workers to take industrial action is to be protected as a generalconstitutional principle of EU law. Nevertheless, the ECJ did not holdthat the right to strike is absolute. On the contrary, the ECJ affirmedthat its exercise can be subject to certain restrictions and, most impor-tantly, it held that the right to strike must be exercised in conformitywith the principle of proportionality. The ECJ subjected the tradeunions’ right to strike to a review of the suitability, necessity, and ultimaratio of the industrial action as well as empowered state courts to “verifywhether the union has exhausted all other avenues under national lawbefore the industrial action is found appropriate.”177 Taking intoaccount the limitations that surround this judicial recognition of theright to strike, many labor lawyers have criticized the decisions of theECJ. As Tonia Novitz argues:
174. Laval, 2007 E.C.R. at I-11890.175. Id.176. In response to the preliminary ruling of the ECJ, the Swedish Labor Court awarded
Laval compensation for damages totaling €50,000 plus costs of €200,000. See K. Apps, DamagesClaims Against Trade Unions After Viking and Laval, 34 EUR. L. REV. 141 (2009).
177. Catherine Barnard, Viking and Laval: an Introduction, 10 CAMBRIDGE Y.B. EUR. LEGAL
STUD. 463, 483 (2008).
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[I]n neither Viking nor Laval did the [ECJ] formulate a right tocollective action in a manner likely to provide effective legalprotection of its exercise. Indeed it could be said that otheraspects of the Viking and Laval judgments render judicialrecognition of such a right negligible in terms of its practicaleffects.178
In light of the comparative framework developed in the previousSection, it seems possible to argue that several criticisms of the ECJ’sdecisions in Viking and Laval “are to some extent overstated.”179 TheECJ certainly did not embrace a position as labor-friendly as thatexisting in the legal systems of the Scandinavian countries,180 andmuch less did it adopt the broad constitutional reading that countrieslike Italy or France accord to the right to strike.181 However, the ECJ’sdecision to recognize a right to strike only insofar as its exercisecomplies with the principle of proportionality is not without basis indomestic law. Indeed, this solution reflects the rule in force in theindustrial relations systems of countries like Germany and Poland. Asmentioned above,182 in Germany the right to strike is permitted only asan ultima ratio, and courts routinely subject industrial action by thetrade unions to a strict proportionality test.183 From this point of view,therefore, it would appear that the ECJ introduced at the EU level aprotection for the right to strike which lies somewhere in the middlebetween the “vanguard” and “laggard” models for the regulation ofindustrial action identified in Section II.184 The standard for theprotection of the right to strike developed by the ECJ in Viking and
178. Tonia Novitz, A Human Right Analysis of the Viking and Laval Judgments, 10 CAMBRIDGE
Y.B. EUR. LEGAL STUD. 541, 542 (2008).179. Robert O’Donoghue & Bruce Carr, Dealing with Viking and Laval: From Theory to Practice,
11 CAMBRIDGE Y.B. EUR. LEGAL STUD. 123, 150 (2009).180. See Mia Ronnmer, Free Movement of Services versus National Labour Law and Nordic Industrial
Relations Systems: Understanding the Laval Case from a Swedish and Nordic Perspective, 10 CAMBRIDGE Y.B.EUR. LEGAL STUD. 493 (2008).
181. See Edoardo Ales et al., Collective Action in Italy: Conceptualizing the Right to Strike, inRECONCILING FUNDAMENTAL SOCIAL RIGHTS AND ECONOMIC FREEDOMS AFTER VIKING, LAVAL AND
RUFFERT 119 (Andreas Bucker & Wiebke Warnek eds., 2011).182. See supra Section II.C.183. See supra text accompanying notes 70-74.184. I draw the expressions “vanguard” and “laggard” from Ann Althouse, Vanguard States,
Laggard States: Federalism and Constitutional Rights, 152 U. PA. L. REV. 1745 (2004), who uses itdescribe the most-protective and least-protective, respectively, regimes for the protection offundamental rights at the state level in the U.S. federal system of government.
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Laval is less protective than, say, the Swedish standard.185 However, it isas protective as the German standard.186 And, perhaps, more protectivethan the British standard:187 technically speaking, no fundamentalright to strike exists under U.K. law, although, of course, U.K. courts“have never subjected industrial action to a proportionality test consid-ering whether the harm caused to the employer is proportionate to theunion’s objectives in taking industrial action.”188
Whatever the appropriateness of these considerations on the compat-ibility between the constitutional standards of the EU and the memberstates,189 it is nonetheless clear that Viking and Laval embody a majorchallenge to the domestic systems for the protection of the right tostrike.190 The recognition at the supranational level of a right to strikein the conditions set forth in Viking and Laval puts state regulators ofindustrial action under pressure and creates a number of tensionsbetween national and EU law. These tensions are particularly evidentfor the EU countries that ensure a heightened and advanced system for
185. See Niklas Bruun et al., Consequences and Policy Perspectives in the Nordic Countries as a Resultof Certain Important Decisions of the Court of Justice of the EU, in RECONCILING FUNDAMENTAL SOCIAL
RIGHTS AND ECONOMIC FREEDOMS AFTER VIKING, LAVAL AND RUFFERT, supra note 181, at 19.186. This of course does not mean that there is a complete and general correspondence
between the German labor standards and EU law. To the contrary, see Eva Kocher, FundamentalSocial Rights in Community Law and in the German Constitution—Equivalent Rights?, 24 INT’L J. COMP.LAB. L. & INDUS. REL. 385 (2008) (explaining that there are divergences between EU law andGerman constitutional law on the interpretation of the negative right of association). See also CaseC-271/08, Comm’n v. Germany, 2010 E.C.R I-07091 (holding that Germany had violated EUpublic procurement law because German local authorities had entered into a collective agree-ment with the relevant workers’ unions pursuant to the German law on industrial relations andselected pension providers for their workforce without opening the selection of the pensionproviders to competitive tender in which other EU firms could participate).
187. See Rebecca Lisa Zahn, I Casi Viking e Laval: Tra Problemi di Allargamento e Soluzioni PocoFortunate [The Viking and Laval Cases: Between Problems of Enlargement and Unlucky Solutions], in DIECI
CASI SUI DIRITTI IN EUROPA [TEN CASES ON RIGHTS IN EUROPE] 225, 228 (Marta Cartabia ed., 2011).188. Barnard, supra note 177, at 489.189. On this issue, see Nicole Lindstrom, Service Liberalization in the Enlarged EU: A Race to the
Bottom or the Emergence of Transnational Political Conflict? 48 J. COMMON MKT. STUD. 1307 (2010)(outlining the position of the member states before the ECJ in the Viking and Laval cases andunderlining the difference in approach between the more “labor-friendly” position of Westerncountries and the more “market-friendly” position of the new EU member states of Central andEastern Europe).
190. See Silvana Sciarra, Viking and Laval: Collective Labour Rights and Market Freedoms in theEnlarged EU, 10 CAMBRIDGE Y.B. EUR. LEGAL STUD. 563 (2007–8).
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the protection of the right to strike,191 although they also emerge inother member states.192 The EU standard for the protection of theright to strike does not displace national standards tout court. Indeed,the ECJ’s right-to-strike rules only apply in cases of transnationalindustrial action, i.e., cases where the conflict between unions andemployers extends to more than one member state and calls intoquestion the EU free movement rules. However, as interstate com-merce expands in the EU, industrial disputes with a cross-borderdimension increase. In this broadening field, the interplay between EUlaw and domestic law threatens “to undermine the effectiveness withwhich labour standards, whether originating in law or in collectiveagreement, can be applied at the national level.”193
For descriptive purposes, I suggest defining the challenge thatemerges from the overlap and interplay between national and suprana-tional law in the field of industrial action as a challenge of ineffective-ness.194 Elsewhere, I have argued that the interactions between aplurality of fundamental rights standards generate complex constitu-tional dynamics in the European multilevel architecture.195 The samepattern emerges here. For a number of years, in the absence of bindingor enforceable standards for the protection of the right to strike at thesupranational level in Europe, the EU member states were free toregulate the right to strike as they thought appropriate. In the lastdecade, however, the autonomy of the member states has come underincreased pressure due to the impact of EU law over national law.196
191. See Niklas Bruun, The Challenge of Europeanisation and Globalisation in the Field of LabourRelations: the Nordic Case, in SOCIAL LAW AND POLICY IN AN EVOLVING EUROPEAN UNION 103 (Jo Shawed., 2000).
192. See Barnard, supra note 177, at 489 (arguing that “[t]he application of the proportional-ity test [designed by the ECJ in Viking and Laval] has the possibility of profoundly changing Britishstrike law”).
193. Simon Deakin, Regulatory Competition After Laval, 10 CAMBRIDGE Y.B. EUR. LEGAL STUD.(2007–8), 581, 605.
194. See Fabbrini, supra note 15.195. See Federico Fabbrini, Voting Rights for Non-Citizens: The European Multilevel and the U.S.
Federal Constitutional Systems Compared, 7 EUR. CONST. L. REV. 392 (2011) (detailing the challengesthat emerge from the interaction between national and supranational law in the field of votingrights). See also Federico Fabbrini, The European Court of Human Rights, the EU Charter of FundamentalRights and the Right to Abortion: Roe v. Wade on the Other Side of the Atlantic?, 18 COLUM. J. EUR. L. 1(2011) (detailing the challenges that emerge from the interaction between national and suprana-tional law in the field of abortion).
196. For an assessment of the impact of EU fundamental rights in the national legal cultures,see MIRIAM AZIZ, THE IMPACT OF EUROPEAN RIGHTS ON NATIONAL LEGAL CULTURES (2004).
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Following the enactment of the Charter of Rights,197 the ECJ in Vikingand Laval recognized the existence of a fundamental right to strike inthe EU constitutional order. Yet by framing the exercise of the right toindustrial action as a possible interference with the principles of freemarket, “Laval and Viking draw on a legacy of jurisprudence whichviews with suspicion collective action and rights, appreciating ratherthe exercise by employers of their economic freedoms.”198 As a conse-quence, the ECJ’s “express recognition to the right to strike as afundamental human right d[id] not lead to enhanced protection ofthat right.”199 The ECJ, in fact, designed a balancing test between freemovement and social rights which ensures protection of the right tostrike only when industrial action is suitable, necessary, and strictlyproportional to the achievement of the workers’ desired goal.
This jurisprudence places the regulation of the right to strike in theEU member states under pressure. As has been convincingly argued,
[T]he ECJ’s case law recognizing a new fundamental socialright, may, paradoxically, lead to new restrictions on the rightto strike in Member States guaranteeing a high level of protec-tion of that right. Thus the ECJ case law constitutes a challengeto national labour law systems and its outcome may well be tolimit collective autonomy rather than strengthen it.200
By setting a ceiling of protection for collective labor rights in industrialdisputes with a cross-border dimension, the ECJ’s case law has calledinto question the effectiveness of right-to-strike protections of many EUmember states. To the extent to which the tensions between state andsupranational laws stem from the difficult balancing act between freemarket principles and social rights guarantees in a federalism-basedsystem of governance, the European experience does not howeverseem to be unique. Indeed, exploring in a comparative perspective theUnited States’ federal experience can provide useful points of refer-ence to explain the dynamics currently at play in Europe and possiblelessons to assess how the European legal regime may evolve in thefuture.
197. Charter of Rights, supra note 137.198. Novitz, supra note 178, at 561.199. Barnard, supra note 177, at 486.200. Sophie Robin-Olivier, Normative Interactions and the Development of Labour Law: A European
IV. THE RIGHT TO STRIKE IN THE U.S. FEDERAL EXPERIENCE
A. Methodological Considerations
The previous Section analyzed the increasing impact that suprana-tional law exercises over the protection of the right to strike in the EUmember states and the complex constitutional challenge that thisinterplay generates on the effectiveness of labor rights. The goal of thisSection is to introduce a comparative analysis and to explore the extentto which dynamics analogous to those currently taking place in Europecan also be detected in the U.S. federal experience. As CatharineBarnard has argued,
Superficially, at least, the [United States] is a good comparatorfor the EU. Broadly speaking, both have similar sized econo-mies, both are based on a federal or quasi-federal structure andboth recognise that, in certain circumstances, “federal” lawneeds to control state activity where the activity interferes withinterstate commerce and thus the unity of the Union or thesingle market.201
However, as Ian Eliasoph has recently remarked with surprise, acomparative examination of the U.S. experience “has been relativelyabsent from the vibrant ‘constitutional’ debates in the [EU] over issuesof federalism, the balancing of social and economic right, and theproper role of the [ECJ].”202
A number of arguments are usually put forward against the feasibilityand usefulness of a comparison between Europe and the United Statesin the field of social rights. These arguments commonly stress theexceptionalism of the U.S. constitutional system for the protection ofsocial rights and underline the existence of “a clear dividing line”203
between the European social model and the limited guarantee thatsocial and economic rights enjoy in the United States. Cass Sunsteinhas posited three main explanations for these differences.204 First, the
201. Catherine Barnard, Restricting Restrictions: Lessons for the EU from the U.S.?, 68 CAMBRIDGE
L.J. 575, 577-78 (2009).202. Ian H. Eliasoph, A “Switch in Time” for the European Community? Lochner Discourse and the
Recalibration of Economic and Social Rights in Europe, 14 COLUM. J. EUR. L. 467, 469 (2008).203. George Katrougalos, European “Social States” and the USA: An Ocean Apart?, 4 EUR. CONST.
L. REV. 225, 225 (2008).204. CASS SUNSTEIN, THE SECOND BILL OF RIGHTS: FDR’S UNFINISHED REVOLUTION AND WHY WE
NEED IT MORE THAN EVER 105 (2004).
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U.S. Constitution dates back to the eighteenth century, and thereforelacks the social and economic guarantees that were largely a creation ofthe twentieth century. Second, the United States has a distinctivelylibertarian and individualist culture that prizes the right to be free fromgovernment intrusion. Third, the U.S. Constitution is enforced bycourts and there has been much reluctance to legislatively codify acatalogue of social rights whose enforcement the courts would not beable to properly handle. According to Sunstein, however, none of thesejustifications is entirely satisfactory. Instead, his explanation for why theUnited States is not endowed with a strong system for the protection ofsocial rights centers on the judicial transformations that took place inthe U.S. Supreme Court during the 1970s. Following the appointmentof conservative justices by the Republican administrations, the case lawof the federal courts in the field of social rights was chilled, and thisprevented the codification of a second Bill of Rights in the UnitedStates.205
This Article does not seek to engage in this debate. Indeed, it isplausible to argue that significant differences exist in the constitutionalprotection of social rights between the United States and the individualEuropean states. What I suggest, however, is that these differences maybe less pronounced when we compare the United States with theEuropean system as a whole. Most comparative constitutional and laborlawyers have explored the differences in the protection of social andlabor rights that exist between the United States and the individual EUmember states.206 The picture seems to change significantly if oneinstead considers the European constitutional architecture in its en-tirety as a multilevel, quasi-federal arrangement.207 Indeed, it has beenargued, that “the legal order of the [EU] seems closer to the Americanarchetype than to the European average.”208 The “tensions over whetherthe central government or the states . . . are the most suitable jurisdic-tions for dealing with the relationship between employers and unions”
205. Id. at 168.206. See, e.g., Dieter Grimm, The Protective Function of the State, in EUROPEAN AND US CONSTITU-
TIONALISM 137 (George Nolte ed., 2005); Avi Ben-Bassat & Momi Dahan, Social Rights in theConstitution and in Practice, 35 J. COMP. ECONOMICS 1 (2007).
207. For the definition of the European system in terms of a multilevel, federal architecture,see Ingolf Pernice, Multilevel Constitutionalism in the European Union, 27 EUR. L. REV. 511 (2002). Seealso ROBERT SCHUTZE, FROM DUAL TO COOPERATIVE FEDERALISM: THE CHANGING STRUCTURE OF
EUROPEAN LAW (2009).208. Katrougalos, supra note 203, at 226.
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has been at play for long time in the U.S. federal system,209 despitebeing a rather new phenomenon in Europe. In fact, as one U.S. scholarhas remarked, “many of the constitutional debates in Europe have avery ‘familiar ring’ to American ears.”210 There seem, therefore, somevalue in examining “possible federal dynamics within the context of the[EU] to the extent that it shows a relationship with labour law, orbroader, social policy”211 in a comparative perspective with the U.S.federal experience.
In addition, there is another reason that pleads in favor of compar-ing the European regime for the protection of the right to strike withthe U.S. system. A major difficulty in comparing the constitutionalprotection of social rights in the United States and Europe is that theU.S. Constitution “has one of the thinnest systems of social provisionamong mature and economically prosperous democracies,”212 com-pletely lacking a catalogue of positive social rights, i.e., legal entitle-ments that require positive action by the state. The right to strike is asocial right: indeed, “[t]he case usually made for the right to strike hasa socio-economic character.”213 Nevertheless, the right to strike pres-ents features that are rather typical of negative rights because it primar-ily protects workers and trade unions against unlawful restraints fromthe government. Needless to say, a major challenge to the effectiveexercise of the right to strike comes from private actors (i.e., employ-ers) and therefore a meaningful protection of the right to strike alsorequires positive government action, through legislative means, toensure that the management does not retaliate against workers whenthey exercise their rights. All this, however, is true also for many otherfirst generation negative rights. Even the right to property, whichepitomizes the idea of laissez-faire and negative liberty, depends heavilyon law and government intervention for protection against privateattack.214 The need for government intervention, therefore, does notcontradict the notion that the right to strike may be conceptualized as anegative right. This being the case, it is possible to examine how the
209. Greg Patmore, The Origins of Federal Industrial Relations Systems: Australia, Canada and theUSA, 51 J. INDUS. REL. 151 (2009).
210. Eliasoph, supra note 202, at 469-70.211. Frank Hendrickx, Federal Dimensions of European Labour Law, in FEDERALISM AND LABOUR
LAW: COMPARATIVE PERSPECTIVES (Othmar Vanachter & Martin Vranken eds., 2004), 101212. MARK TUSHNET, WEAK COURTS, STRONG RIGHTS. JUDICIAL REVIEW AND SOCIAL WELFARE
RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW 228 (2008).213. NOVITZ, supra note 108, at 49.214. See SUNSTEIN, supra note 204, at 20.
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right to strike has been protected in the U.S. system while avoiding thedifficulties posed by the lack of positive social rights provisions in theU.S. Constitution.
In light of the above, I now turn to an historical examination of theU.S. experience in the protection of the right to strike, and explore thesimilarities and differences that exist between the U.S. federal systemand the European multilevel architecture in this matter. This compari-son does neither imply that the two systems are identical nor suggestthat they will inevitably evolve in the same way. As has been correctlyargued, the value of a comparative study “is to be derived not so muchfrom the possibility of finding foreign laws and institutions that we canadopt [but] rather . . . from the new perspectives on our own systemthat we can gain from such a study.”215 A comparison of the U.S. federalsystem can operate as a useful mirror for understanding the tensionsbetween the various levels of government regulation that exist inEurope today.216 The evolving U.S. experience can also offer severalmodels and anti-models for the protection of the right to strike thatEurope may want to take into account for the future.217 Of course,many of the events described herein occurred in the United States in aremote time and this recommends caution in drawing lessons forEurope from the U.S. experience.218 Still, despite all the differencesbetween the two systems in the historical, political and institutionalcontext, the U.S. experience in balancing federalism concerns, freemarket rules and social rights guarantees provides “guideposts that areperilous [for Europe] to ignore.”219
B. The Right to Strike Before the New Deal
In the United States, as in most European countries, early pressuresin favor of the recognition of the right for workers to form trade unionsand take industrial action to defend their interests emerged during the
215. See Benjamin Aaron, Labor Relations Law in the United States from a Comparative Perspective,39 WASH. & LEE L. REV. 1247, 1265 (1982).
216. On the role that comparative constitutional law can play in facilitating the understand-ing of one’s own legal system, see generally Vicki Jackson, Narrative of Federalism: Of Continuities andComparative Constitutional Experience, 51 DUKE L.J. 223 (2001).
217. On the U.S. experience during the so-called Lochner era as an “anti-model” of compara-tive constitutional law, see Sujit Choudhry, The Lochner Era and Comparative Constitutionalism, 2INT’L J. CON. L. 1, 3 (2004).
218. See generally Ernest A. Young, Protecting Member State Autonomy in the European Union: SomeCautionary Tales from American Federalism, 77 N.Y.U.L. REV. 1612 (2002).
219. Eliasoph, supra note 202, at 507.
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last decades of the nineteenth century.220 At that time, the U.S. federalgovernment was understood as lacking substantive powers to regulatethe field of industrial relations, and, as such, the questions of unions’rights were addressed exclusively by the individual states in the exerciseof their general welfare powers.221 Under state common law, supremecourts in many U.S. states came to recognize a right for workers to jointrade unions and legalized peaceful primary strikes for higher wages orbetter working conditions.222 Through piecemeal adjudication, moststates adopted the rule that strikes were legal unless conducted byunlawful means or for unlawful objectives, and they excluded govern-ment retaliation against workers going on strike.223 Nevertheless, statesdid not enact legislation to protect striking workers from retaliation byemployers: in fact, under the common law, striking workers could befired for breach of contract and were subject to liability in tort.224
Moreover, many states adopted a restrictive interpretation of whatlawful strikes meant, and, although holdings varied widely from state tostate, some state courts prohibited as unlawful all industrial action thatdid not lead to immediate benefits for the workers.225
The protection that labor began to enjoy at the state level through-out the Progressive Era, however, was put under pressure by the federalcourts.226 To start, the U.S. Supreme Court interpreted the FederalAntitrust Act (Sherman Act)227 as broadly prohibiting collective actionby trade unions.228 In Loewe v. Lawlor,229 the Supreme Court ruled thatconcerted action by union members in the pursuit of their commoninterest constituted an unlawful combination in violation of the anti-trust rules and an interference with “the liberty of a trader to engage inbusiness.”230 Furthermore, in a series of decisions epitomized by Loch-
220. See generally CHRISTOPHER TOMLINS, THE STATE AND THE UNIONS (1985).221. See GERALD GUNTHER & KATHLEEN SULLIVAN, CONSTITUTIONAL LAW 159-60 (13th ed.
1997).222. See LUDWIG TELLER, LABOR DISPUTES AND COLLECTIVE BARGAINING, 1, 249 (1940).223. I am grateful to Jim Pope for making this point clear to me.224. See generally WILLIAM GOULD IV, A PRIMER ON AMERICAN LABOR LAW 9 (1993).225. See TELLER, supra note 222, at 267.226. See William Graebner, Federalism in the Progressive Era: A Structural Interpretation of Reform,
64 J. AM. HIST. 331, 331 (1977).227. 26 Stat. 209 (1890) (codified as amended at (15 U.S.C. §§ 1-7 (2006)).228. On the relationship between anti-trust and labor law, see generally Elinor Hoffmann,
Labor and Antitrust Policy: Drawing a Line of Demarcation, 50 BROOK. L. REV. 1 (1983).229. 208 U.S. 274 (1908).230. Id. at 293.
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ner v. New York,231 the Supreme Court held that the Constitution’sFourteenth Amendment guarantee that an individual not be deprivedof liberty or property without “due process of law”232 included afreedom to enter into private contracts without any government restric-tion.233 Under this substantive reading of the Due Process Clause,federal courts enforced a laissez-faire theory of economics and struckdown as unconstitutional a host of state and federal legislations aimingat improving the social and working conditions of employees and therelations between labor and management.234
Ironically, in 1923—at the height of the Lochner era—the SupremeCourt held that the Fourteenth Amendment’s Due Process Clauseprotected a constitutional right to strike.235 In the case of Charles WolffPacking Co. v. Court of Industrial Relations,236 the Supreme Court invali-dated a Kansas law that banned strikes in essential industries andestablished an industrial court to solve labor-management disputes,arguing that the state statute deprived workers and unions of “propertyand liberty of contract without due process of law.”237 However, in the1926 Dorchy v. Kansas238 decision, Justice Brandeis, writing for theCourt, affirmed that “neither the common law, nor the FourteenthAmendment, confers the absolute right to strike.”239 The Court thenupheld the conviction of a union official who had organized a strike,
231. 198 U.S. 45 (1905) (striking down a New York statute limiting the hours of work inbakeries). For a thorough historical examination of Lochner, see generally Sidney Tarrow, Lochnerv. New York: A Political Analysis, 5 LAB. HIST. 277 (1964).
232. On the Due Process Clause of the Fourteenth Amendment, see JOHN ORTH, DUE
PROCESS OF LAW: A BRIEF HISTORY (2003) and WILLIAM NELSON, THE FOURTEENTH AMENDMENT: FROM
POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988).233. On the so-called Lochner era of the U.S. Supreme Court, see generally Cass Sunstein,
Lochner’s Legacy, 87 COLUM. L. REV. 873 (1987).234. See, e.g., Coppage v. Kansas, 236 U.S. 1 (1915) (striking down as a violation of freedom of
contract a Kansas statute that prohibited employers from requiring employees to refrain fromjoining trade unions as a condition of employment); Adair v. United States, 208 U.S. 161 (1908)(striking down as a violation of the commerce clause a federal statute prohibiting railwayemployers from discriminating against employees because they joined a trade union).
235. See James Grey Pope, Contract Race and the Freedom of Labor in the Constitutional Law of“Involuntary Servitude,” 119 YALE L.J. 1474, 1542 (2009) [hereinafter Pope, Contract Race].
236. 262 U.S. 522 (1923).237. Id. at 544. As Vicki Jackson brought to my attention, it may be worth noticing that in the
case, the challenge against the state statute was brought by an employer. The U.S. Supreme Court,however, in holding the Kansas statute unconstitutional, placed weight on its restriction of labor’sability to resort to strike or work stoppages, implying that such restrictions were incompatible withthe Due Process Clause of the Fourteenth Amendment. Id. at 539.
238. 272 U.S. 306 (1926).239. Id. at 311.
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holding that “[t]he right to carry on business—be it called liberty orproperty—has value [and t]o interfere with this right without just causeis unlawful.”240 By and large, therefore, from the late 1890s until themid-1930s, the U.S. Supreme Court “developed and applied doctrinesthat insulated the market place from constraints imposed by legisla-tures or collective action.”241
C. The Right to Strike During the New Deal
By the mid-1930s, however, the Lochner-era doctrines were no longertenable.242 Although the U.S. Congress had already intervened duringthe early decades of the twentieth century in the regulation of laborrelations in interstate industries,243 the Great Depression had high-lighted a need for much broader federal intervention in the economy.Pushed into power by a sweeping electoral victory, Franklin D. Roos-evelt and his administration began a New Deal for the United States,enacting major pieces of social legislation.244 According to the Admin-istration, the resolution of the tensions between management andlabor was a key ingredient for economic stabilization, and to this end,the legal rights of the unions had to be strengthened in order to ensurea workable system of collective bargaining.245 In 1932, Congress en-acted the Norris-La Guardia Act,246 “which eliminated federal courtjurisdiction to enforce yellow dog contracts (agreements not to join aunion),”247 and in 1933, Congress passed the National IndustrialRecovery Act (NIRA),248 which protected unions’ rights to concludecollective agreements. In Schechter Poultry Corp. v. United States,249 how-ever, the Supreme Court invalidated the NIRA as an unconstitutionalexercise of federal power, precipitating one of the most severe constitu-
240. Id.241. Eliasoph, supra note 202, at 471.242. See generally JEFF SHESOL, SUPREME POWER: FRANKLIN ROOSEVELT VS. THE SUPREME COURT
(2010).243. See Clayton Act, 38 Stat. 739 (1914) (codified as amended at 15 U.S.C. § 17 (2006); 29
244. See SUNSTEIN, supra note 204, at 35.245. See Holly McCammon, Legal Limits on Labour Militancy: U.S. Labour Law and the Right to
Strike Since the New Deal, 37 SOC. PROB. 206, 209-10 (1990).246. 47 Stat. 70 (1932) (codified at 29 U.S.C. §§ 101-115 (2006).247. Pope, Contract Race, supra note 235, at 1552.248. 48 Stat. 195 (1933) (held unconstitutional by Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935)).249. 295 U.S. 495 (1935).
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tional crises in U.S. history. As is well known, President Rooseveltthreatened to change the composition of the Supreme Court through a“court-packing plan”250 and, in response, Congress enacted a newstatute, the National Labor Relations Act (NLRA, also known as theWagner Act),251 which largely resembled the NIRA. Eventually, in 1937the Supreme Court made what is popularly called the “switch in time”and upheld the constitutionality of the NLRA,252 definitively sanction-ing the constitutionality of the New Deal legislation.253
The NLRA—also called the Wagner Act after its sponsor, SenatorRobert Wagner—recognized a federal right for employees to organizetrade unions and to engage in industrial action and prohibited employ-ers from taking anti-union activities. As clarified in its opening provi-sion, the NLRA found its legal basis in the Commerce Clause of theU.S. Constitution and was inspired by the goal of “promoting the flowof commerce by removing certain recognized sources of industrialstrife and unrest, by encouraging practices fundamental to the friendlyadjustment of industrial disputes arising out of differences as to wages,hours, or other working conditions, and by restoring equality ofbargaining power between employers and employees.”254 Section 7(a)of the Act provided that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargaincollectively through representatives of their own choosing, and toengage in other concerted activities for the purpose of collectivebargaining or other mutual aid or protection.”255 Moreover, Section 13affirmed that “[n]othing in this subchapter, except as specificallyprovided for herein, shall be construed so as either to interfere with orimpede or diminish in any way the right to strike.”256 Finally, the NLRAset up a National Labor Relations Board (NLRB)257 empowered to actas a mediator in industrial disputes, to investigate unfair labor prac-tices, and to certify representative unions for the purpose of collectivebargaining in interstate industries.
As an exercise of Congress’ power to regulate interstate commerce,
250. See RICHARD POLENBERG, THE ERA OF FRANKLIN DELANO ROOSEVELT 1932-1945: A BRIEF
HISTORY WITH DOCUMENTS 169 (2000). See also SHESOL, supra note 242, at 276.251. 49 Stat. 452 (1935) (codified as amended at 29 U.S.C. §§ 151-169 (2006)).252. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).253. See also New Negro Alliance v. Sanitary Grocery Co. 303 U.S. 552 (1938) (upholding the
the NLRA only applied to private firms operating in the nationwidemarket and excluded many employers and workers from coverage,including government employers, agricultural laborers, and domesticworkers.258 In the years immediately following the NLRA’s enactment,however, many states adopted state labor relations acts. State laws wereoften modeled after the NLRA and extended the protection of therights of labor organizations to intra-state industries.259 Nevertheless, anumber of states passed legislation that “place[d] restrictions onunions and on employees as well as on employers.”260 For almost twodecades after the NLRA’s enactment, the field of industrial relationswas understood as a policy area under concurrent control by thefederal government and the states.261 Despite the “trend toward na-tional integration,”262 state law co-existed with the national legislationand continued to regulate important features of labor-managementrelations, including strikes.263 Over time, however, the application ofstate law different from federal law created “some kind of inconsis-tency”264 and in the 1959 case of Building Trade Council v. Garmon,265
the Supreme Court “held that Congress impliedly intended to exclu-sively occupy the field of collective labor relations and therefore thestates [were] preempted from enacting laws attempting to regulateconduct which is ‘actually or arguably protected or prohibited’ by theNLRA.”266
D. The Right to Strike After the New Deal
The recognition of field pre-emption by federal law over state law inthe area of industrial relations produced important consequences forthe protection of the right to strike. This principle neatly separated theregulation of strikes for workers covered by the NLRA, falling under
258. 29 U.S.C. § 152 (2006).259. See Archibald Cox, Federalism in the Law of Labor Relations, 67 HARV. L. REV. 1297, 1307
(1954).260. Mason Doan, State Labor Relations Acts, 56 Q.J. ECON. 507, 507 (1942).261. See Cox, supra note 259, at 1307.262. Paul Hays, Federalism and Labor Relations in the United States, 102 U. PA. L. REV. 959, 959
(1954).263. See HARRY MILLIS & EMILY CLARK BROWN, FROM THE WAGNER ACT TO TAFT-HARTLEY 316
(1954).264. Cox, supra note 259, at 1312.265. 359 U.S. 236 (1959).266. Barbara Fick, Federalism and Labour Law: The American Experience, in FEDERALISM AND
LABOUR LAW: COMPARATIVE PERSPECTIVES 73, 80-81 (Othmar Vanachter & Martin Vranken eds.,2004).
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the exclusive purview of federal law, from the regulation of strikes forworkers not covered by the NLRA, which was left to the states. Inaddition, it excluded that in the field of federal law, state law could gobeyond the federal minimum, de facto transforming the NLRA intoboth a floor and a ceiling for the protection of the right to strike at thefederal level. In the mid-long run, this arrangement did not provepositive for the protection of labor rights in the United States. As hasbeen argued, “[d]espite the crucial importance of the right to strike tothe structure of the NLRA, over the sixty-plus years of the Act’sexistence it has been steadily undercut by congressional amendmentsand judicial decisions.”267 In 1947, Congress enacted the Labor-Management Relations Act (Taft-Hartley Act),268 which limited thepowers of the labor unions by prohibiting secondary boycotts andmaking it an unfair labor practice for unions to restrain or coerceemployees in the exercise of their individual rights to self-organiza-tion.269 Then, in 1959, Congress enacted the Labor-Management Re-porting and Disclosure Act (Landrum-Griffin Act),270 which amendedthe NLRA to “further limit[] the right to strike.”271
The most significant restrictions to the protection of the right tostrike, however, came from the case law of the Supreme Court. AsJames Gray Pope has explained, five decisions were especially fatal forthe protection of U.S. workers’ right to strike.272 In the 1938 case ofNLRB v. Mackay Radio & Telegraph Co.,273 the Supreme Court ruled thatemployers enjoyed the right to permanently replace strikers. In Consoli-dated Edison Co. v. NLRB,274 the Court stated that the NLRB had nopower to deter unfair labor practice and could only remedy harms inproceedings brought before it by private parties. In NLRB v. FansteelMetallurgical,275 the Supreme Court held that workers did not have aright of self-defense against employers who committed unfair labor
267. Julius Getman & Ray Marshall, The Continuing Assault on the Right to Strike, 79 TEX. L. REV.703, 704 (2001).
268. Pub. L. No. 80-120, 61 Stat. 136 (1947) (codified as amended in scattered sections of 29U.S.C.).
269. 29 U.S.C. § 158(b)(1)(a) (2006).270. Pub. L. No. 86-257, 73 Stat. 519 (1959) (codified as amended in scattered sections of 29
U.S.C.).271. Getman & Marshall, supra note 267, at 718.272. James Grey Pope, How American Workers Lost the Right to Strike and Other Tales, 103 MICH.
L. REV. 518, 518 (2004) [hereinafter Pope, How American Workers Lost].273. 304 U.S. 333, 345-46 (1938).274. 305 U.S. 197, 235-36 (1938).275. 306 U.S. 240, 257-58 (1939).
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practice. Then, in 1965, in Textile Workers Union v. Darlington,276 theSupreme Court ruled that management could lawfully close operatinga factory in retaliation against workers who choose to unionize. Finally,in Lechmere, Inc. v. NLRB,277 the Court affirmed that employers couldenforce trespass against union organizers, stopping them from access-ing their property. By elevating “the state common-law rights of employ-ers over the federal statutory rights of workers”278 these decisionsconfirm that, although
U.S. labor law since the New Deal has undeniably empoweredU.S. workers by guaranteeing them the right to strike[,] . . .the manner in which the law has been interpreted and appliedhas constrained that right and the power it implies . . . regulat-ing workers’ collective action in ways designed to protect thecontinuity of production.279
The protection of the right to strike within the various states—foremployees not covered by the federal NLRA—reveals a more diversepicture. Because the federal courts never accepted the idea that theU.S. Constitution included a minimum level of protection for the rightto strike280 with which states were bound to comply,281 the several stateshave remained free to enact diverse regulations. The core focus of statelegislations has been the regulation of the right to strike for publicemployees.282 A majority of states passed legislation that “forbid[s]government employees to strike. In most states whose statutes are silent
276. 380 U.S. 263, 268-70 (1965).277. 502 U.S. 527, 537 (1992).278. Pope, How American Workers Lost, supra note 272, at 519.279. McCammon, supra note 245, at 223.280. This position has been persuasively advanced by several academics. See James Grey Pope,
The Right to Strike Under the United States Constitution (Rutgers School of Law, Newark, ResearchPapers Series No. 66, 2007) [hereinafter Pope, Right to Strike] (surveying the arguments in favor ofa constitutional protection of the right to strike to be enforced against the states via the ThirteenthAmendment’s Involuntary Servitude Clause, the Fourteenth Amendment’s Due Process Clause,and the First Amendment’s principle of freedom of association). See also Archibald Cox, Strikes,Picketing and the Constitution, 4 VAND. L. REV. 574, 574 (1951).
281. See U.A.W. Local 232 v. Wisconsin Labor Relations Board, 336 U.S. 245, 251 (1949)(holding that the Thirteenth Amendment did not prohibit the state of Wisconsin from outlawingintermittent unannounced strike). See also Lyng v. Auto Workers, 485 U.S. 360, 364-68 (1988)(holding that the First Amendment did not prohibit a federal statutory provision denying foodstamps to the families of workers on strike).
282. See Craig Olson, Strikes, Strike Penalties and Arbitration in Six States, 39 INDUS. & LAB. REL.REV. 539 (1986).
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on the subject, the courts have ruled that strikes by governmentemployees are illegal.”283 At the same time, some states legalized strikesfor public employees. In 1985, for instance, in County Sanitation Districtv. Los Angeles County Employee Association,284 the Supreme Court ofCalifornia “overturned the state’s common law ban on public employ-ees strike[s]”285 as incompatible with the state constitution. The recentevents that occurred in the state of Ohio—where a contentious totalban on strikes by public employees was passed by the state legislature inMarch 2011286 and repealed by a popular referendum in November2011287—make it clear that major controversies still surround the reg-ulation of the right to strike for public employees in many U.S. states.
In conclusion, the U.S. experience in the protection of the right tostrike reveals an evolving pattern. The regulation of industrial actionoriginally fell under the general welfare powers of the states. For thefirst three decades of the twentieth century, however, the free marketjurisprudence of the federal courts represented a major challenge toan effective protection of labor unions’ rights. Ironically, in WolffPacking,288 the Supreme Court quashed a strike ban as incompatiblewith the Fourteenth Amendment and today that decision “remainsavailable as authority for the proposition that there is a constitutionalright to strike [in the United States].”289 The NLRA recognized theright to strike as fundamental to the process of collective bargainingand—with the goal of securing the “free flow of goods in [interstate]commerce”290—introduced a heightened federal protection of indus-trial action. However, the protection of the right to strike at the federallevel was significantly watered-down by congressional amendments andjudicial rulings over time. Steadily, “[s]tate common law rights ofproperty and contract were elevated above federal statutory rights ofself-organization and collective action through Lochner-era notions ofeconomic due process and interstate commerce.”291 At the same time,the Supreme Court interpreted federal law as preempting the field of
283. Benjamin Aaron, Unfair Labor Practice and the Right to Strike in the Public Sector: Has theNational Labor Relations Act Been a Good Model?, 38 STAN. L. REV. 1097, 1109 (1986).
284. 38 Cal. 3d 564 (1985), cert. denied, 474 U.S. 995 (1985).285. Pope, Right to Strike, supra note 280, at 25, 28.286. S. 5, 129th Gen. Assemb., 2010–2012 Sess. (Ohio 2011).287. See Sabrina Tavernise, Ohio Turns Back a Law Limiting Unions’ Rights, N.Y. TIMES, Nov. 8,
2011, at A1.288. Wolff Packing Company v. Court of Industrial Relations, 262 U.S. 522 (1923).289. Pope, Contract Race, supra note 235, at 1544.290. 29 U.S.C. § 151 (2006).291. Pope, How American Workers Lost, supra note 272, at 551.
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industrial relations and left states competent only to regulate strikes bypublic employees and other workers not covered by the NLRA. Thus,nowadays, the right to strike enjoys a limited protection at the federallevel that states can neither lower nor increase.
V. THE EUROPEAN COURT OF HUMAN RIGHTS: TRANSFORMING THE
PROTECTION OF THE RIGHT TO STRIKE IN EUROPE?
A. The Right to Strike in ECHR Law: Developments
The above analysis of the U.S. federal experience reveals a numberof interesting points of analogy with the events currently taking place inEurope. The U.S. constitutional architecture has been characterizedfor many decades by tensions between state and federal law in the fieldof social policy, and although the U.S. Supreme Court formally acknowl-edged the existence of a constitutional right to strike, its jurisprudencehas been rather hostile to an effective protection of industrial action.This state of affairs presents “striking parallels”292 with the dynamicsthat Europe is experiencing nowadays due to the challenge posed byViking and Laval on the effective protection of the right to strike at thestate level. At the same time, major differences still remain between thehistorical experience of the United States and that of contemporaryEurope. During the New Deal, the U.S. Congress, in the exercise of itscommerce powers, enacted a major piece of federal legislation—theNLRA, otherwise known as the Wagner Act—which created a coherentframework for the protection of the right to strike for employers andemployees operating in the national market. Over time, of course, theWagner Act was weakened by judicial interpretations and congressionalamendments. Nevertheless, at the time of its enactment, the WagnerAct represented an effective way to address the challenge posed byjudicial review of social rights under free movement rules.293
In this Section, I suggest that a number of recent developments inthe legal systems of the EU and the ECHR may provide a possibleresponse to the challenge of ineffectiveness in the protection of theright to strike raised by the ECJ’s case law. However, the transforma-tions that are taking place in Europe seem to follow a path differentthan that of the United States. Rather than being based on legislativeaction, changes in the regulation of the right to strike in Europe may
292. Danny Nicol, Europe’s Lochner Moment, 2011 PUB. L. 308, 329.293. See also Gilles Trudeau, La Greve au Canada et aux Etats-Unis: d’un Passe Glorieux a un
Avenir Incertain [The Strike in Canada and the United States: from a Glorious Past to an Uncertain Future],38 REVUE JURIDIQUE THEMIS [THEMIS LEGAL REVIEW] 1 (2004).
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derive primarily from an innovative jurisprudence of the ECtHR. Infact, on November 12, 2008, in the case of Demir and Baykara v.Turkey,294 the Grand Chamber of the ECtHR delivered a landmarkdecision recognizing that Article 11 of the ECHR protects a right tocollective bargaining. This ruling opened the way for the recognition ofan ECHR-protected right to strike in the ECtHR’s April 21, 2009decision Enerji Yapi-Yol Sen v. Turkey.295 The potential influence of thesetwo decisions is amplified by the entry into force of the Treaty ofLisbon296 on December 1, 2009. Pursuant to the new Article 6 of theTreaty on European Union (TEU),297 the EU shall accede to the ECHRand the negotiations to accomplish this goal are already at quite anadvanced stage. Once accession is completed, the EU will be subject toa review by the ECtHR for compliance with the ECHR. It is hard toanticipate whether the ECtHR will necessarily hold decisions like Vikingand Laval to be incompatible with Article 11 ECHR. Yet, it is worth-while to consider the potential impact of the new right to strikejurisprudence of the ECtHR on the constitutional dynamics at play inthe EU.
B. The Demir and Baykara Case
The ECtHR’s case of Demir and Baykara originated from an applica-tion against Turkey lodged by two Turkish nationals who were mem-bers of Tum Bel Sen, a trade union representing civil servants.298 In theearly 1990s, the trade union entered into a collective agreement with alocal municipality. The agreement was, however, challenged in courtand was soon annulled and declared unenforceable by the Yargıtay, theTurkish Supreme Court. According to the Turkish Supreme Court, anordinary statute governing collective agreements and the right to strikecould not apply to relations between civil servants and a public adminis-tration. The Court further pointed out that the legislation in force atthe time when the trade union was founded did not allow civil servantsto form trade unions. Having exhausted the domestic venues of re-
294. Demir and Baykara v. Turkey [GC], App. No. 34503/97, 2008 Eur. Ct. H.R. (Dec. 11,2008), at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i�001-89558.
295. Enerji Yapi-Yol Sen v. Turkey, App. No. 68959/01 (Eur. Ct. H.R. Apr. 21, 2009), availableat http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i�001-92266 (French only).
296. Treaty of Lisbon, supra note 114.297. Consolidated Version of the Treaty on European Union art. 6, 2010 O.J. (C 83) 1
[hereinafter TEU].298. Demir and Baykara [GC], App. No. 34503/97, ¶¶ 1, 8, 15-16, 2008 Eur. Ct. H.R. (Dec. 11,
2008).
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dress, Mr. Demir and Mrs. Baykara brought proceedings before theECtHR, complaining that Turkey had denied them, first, the right toform trade unions and, second, the right to engage in collectivebargaining and enter into collective agreements in violation of Article11 of the ECHR.299 On November 21, 2006, the Second Section of theECtHR unanimously held that there had been a violation of Article11.300 The decision, however, was appealed by Turkey and thereforecame before the ECtHR’s Grand Chamber.
The Grand Chamber began its ruling by surveying the evolvingTurkish legal framework for the regulation of collective bargainingrights for trade unions in the private and public sectors and mappingthe relevant international and European legal instruments protectingfreedom of organization and the right to collective bargaining for civilservants.301 In a remarkable openness toward judicial cross-fertiliza-tion,302 the ECtHR then clarified that “the methodology”303 that itwould adopt to examine the merits of the complaints submitted underArticle 11 of the ECHR would be to interpret the ECHR in light ofother international human rights texts and the relevant practice of thecontracting parties. The ECtHR observed that “the common interna-tional or domestic law standards of European States reflect a reality thatthe Court cannot disregard”304 and underlined how “in searching forcommon ground among the norms of international law [the Court]has never distinguished between sources of law according to whetheror not they have been signed or ratified by the respondent State.”305
The ECtHR thus synthesized its approach, stating that
[I]n defining the meaning of terms and notions in the text ofthe [ECHR], [the ECtHR] can and must take into accountelements of international law other than the [ECHR], theinterpretation of such elements by competent organs, and thepractice of European States reflecting their common val-ues. . . .
299. Id. ¶ 3.300. Demir and Baykara v. Turkey, App. No. 34503/97, (Eur. Ct. H.R. Nov. 21, 2006), at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i�001-78101.301. Demir and Baykara [GC], App. No. 34503/97, ¶¶ 34-36, 2008 Eur. Ct. H.R. (Dec. 11,
2008).302. See Robin-Olivier, supra note 200, at 384.303. Demir and Baykara [GC], App. No. 34503/97, ¶ 60, 2008 Eur. Ct. H.R. (Dec. 11, 2008).304. Id. ¶ 76.305. Id. ¶ 78.
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In this context, it is not necessary for the respondent State tohave ratified the entire collection of instruments that areapplicable in respect of the precise subject matter of the caseconcerned. It will be sufficient . . . that the relevant interna-tional instruments denote a continuous evolution in the normsand principles applied in international law or in the domesticlaw of the majority of member States of the Council of Europeand show, in a precise area, that there is common ground inmodern societies.306
Having explained its methodology, the ECtHR moved to the firstquestion: whether the Turkish prohibition for civil servants to formtrade unions was compatible with Article 11 of the ECHR. The ECtHRnoted that Article 11(2) of the ECHR allowed the restriction of theright to assemble and form trade unions for “members of the armedforces, of the police or of the administration of the State”307 butunderlined how this provision had “to be construed strictly.”308 TheECtHR, in particular, argued that municipal civil servants who are notengaged in the administration of the state, should not “be subjected . . .to a limitation of their right to organise”309 and observed that “theseconsiderations find support in the majority of the relevant interna-tional instruments and in the practice of European States,”310 includ-ing Article 5 of the ESC,311 which guarantees the right of workers toform trade unions and does not allow restrictions of this right inrespect of members of the administration of the State. Having acknowl-edged that the applicants, as civil servants and therefore “‘members ofthe administration of the State,’” could not “be excluded from thescope of Article 11 [of the ECHR],”312 the ECtHR assessed whether therestriction imposed by Turkey on the applicants in the present casecould still be justified under Article 11(2) if it were “‘prescribed by law,’pursued one or more legitimate aims[,] and ‘necessary in a democraticsociety’ for the achievement of those [legitimate] aims.”313 The ECtHRnoted that the first two tiers of the proportionality analysis were
306. Id. ¶ 85-86 (citations omitted).307. ECHR, supra note 11, art. 11(2).308. Demir and Baykara [GC], App. No. 34503/97, ¶¶ 97, 119, 2008 Eur. Ct. H.R. (Dec. 11,
2008).309. Id. ¶ 97.310. Id. ¶ 98.311. ESC, supra note 124, art. 5.312. Demir and Baykara [GC], App. No. 34503/97, ¶ 107.313. Id. ¶ 117.
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satisfied since the Turkish interference with the civil servants’ right toform a trade union “was in accordance with the domestic law . . .[and] was intended to prevent disorder.”314 However, the ECtHRdenied that the restriction could be regarded as necessary in a demo-cratic society and—quoting the previous decision of the ECtHR Sec-ond Section—affirmed that
“[I]t ha[d] not been shown before it that the absolute prohibi-tion on forming trade unions imposed on civil servants . . .by Turkish law, as it applied at the material time, met a ‘pressingsocial need.’ The mere fact that the ‘legislation did not providefor such a possibility’ is not sufficient to warrant as radical ameasure as the dissolution of a trade union.”315
The ECtHR thus concluded that there had been “a violation of Article11 of the [ECHR] on account of the failure to recognise the right of theapplicants, as municipal civil servants, to form a trade union.”316
The ECtHR then moved to the second question raised by theapplicants, regarding the compatibility with Article 11 of the ECHR ofthe decision by the Turkish Court of Cassation to annul the collectiveagreement signed by the Tum Bel Sen trade union with the localmunicipality. The ECtHR reassessed its previous case law on thesubstance of the right of association protected by Article 11. TheECtHR recalled that its jurisprudence had so far identified in Article 11the “following essential elements of the right of association . . . : theright to form and join a trade union, the prohibition of closed-shopagreements[,] and the right for a trade union to seek to persuade theemployer to hear what it has to say on behalf of its members.”317 In tunewith a dynamic interpretation of the ECHR, however, the ECtHRaffirmed that
This list is not finite. On the contrary, it is subject to evolutiondepending on particular developments in labour relations. Inthis connection it is appropriate to remember that the [ECHR]is a living instrument which must be interpreted in the light ofpresent-day conditions, and in accordance with developments
in international law, so as to reflect the increasingly highstandard being required in the area of the protection of humanrights . . . .318
The ECtHR surveyed a number of international instruments concern-ing labor standards and emphasized how the right to bargain collec-tively had gained increasing protection under the International LaborOrganization, Article 6(2) of the ESC as well as through the relevantEU and domestic law and practice. In light of these developments, theECtHR considered “that its [case law] to the effect that the right tobargain collectively and to enter into collective agreements does notconstitute an inherent element of Article 11 should be reconsid-ered”319 and, with a milestone statement, affirmed that
[H]aving regard to the developments in labour law, bothinternational and national, and to the practice of ContractingStates in such matters, the right to bargain collectively with theemployer has, in principle, become one of the essential ele-ments of the “right to form and to join trade unions for theprotection of [one’s] interests” set forth in Article 11 of the[ECHR] . . . .320
In light of the foregoing path-breaking conclusion, the ECtHRmoved to examine whether the interference with the applicants’ trade-union freedom resulting from the annulment of the collective agree-ment by the Turkish Court of Cassation could be regarded as justifiedunder Article 11(2) of the ECHR. The ECtHR thus undertook a newproportionality analysis of the action of the Turkish judicial institu-tions, to assess whether the restrictions they had imposed on theapplicants’ rights were prescribed by law, pursued a legitimate aim, andwere necessary in a democratic society. The ECtHR accepted that, atthe material time, “the interference was prescribed by law, as inter-preted by the . . . Court of Cassation”321 and acknowledged that itpursued a legitimate aim, i.e., “the prevention of disorder.”322 Neverthe-less, the ECtHR rejected Turkey’s arguments that the restriction wasnecessary in a democratic society. The ECtHR noted that “at the
material time a number of elements showed that the refusal to acceptthat the applicants, as municipal civil servants, enjoyed the right tobargain collectively and thus to persuade the authority to enter into acollective agreement, did not correspond to a ‘pressing social need.’”323
First, “the right for civil servants to be able, in principle, to bargaincollectively, was [already] recognised by international law instruments,both universal and regional.”324 Secondly, Turkey had ratified “theprincipal instrument protecting, internationally, the right for workersto bargain collectively and enter into collective agreements”325 and wasbound to implement these agreements within its legal system. As such,the ECtHR found that “the impugned interference, namely the annul-ment ex tunc of the collective agreement entered into by the applicants’union following collective bargaining with the authority was not ‘neces-sary in a democratic society,’ within the meaning of Article 11(2) of the[ECHR]”326 and concluded that there had been “a violation of Article11 of the [ECHR] on this point also, in respect of both the applicants’trade union and the applicants themselves.”327
The Grand Chamber’s decision in Demir and Baykara represents amajor turning point in the case law of the ECtHR on the right toindustrial action. Although, technically the decision addresses only theextent to which Article 11 of the ECHR protects a right for civil servantsto form trade unions and to engage in collective bargaining, the rulinganticipates the need for protection of the right to strike under theECHR. As is self-evident for labor lawyers, indeed, the right to collectivebargaining and the right to collective action constitute two faces of thesame coin: trade unions are endowed with real bargaining power onlyto the extent to which they can resort to industrial action to back uptheir claims. As such, the protection of a right to collective bargainingby necessity implies a protection of a right to strike. Not surprisingly,therefore, just a few months after the ground-breaking Demir andBaykara decision, the Third Section of the ECtHR ruled, in EnerjiYapi-Yol Sen v. Turkey, that Article 11 of the ECHR protected a right tostrike.328
323. Id. ¶ 164.324. Id. ¶ 165 (citation omitted).325. Id. ¶ 166 (referring to ILO, Right to Organise and Collective Bargaining Convention (No. 98)
(adopted July 1, 1949)).326. Id. ¶ 169.327. Id. ¶ 170.328. Enerji Yapi-Yol Sen v. Turkey, App. No. 68959/01, ¶ 32 (Eur. Ct. H.R. Apr. 21, 2009),
available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i�001-92266 (French only).
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C. The Enerji Case
Enerji concerned a Turkish trade union representing civil servantsworking in the fields of land registration, energy, infrastructure ser-vices, and motorway construction.329 In 1996, the trade union ex-pressed its intention to go on strike. In reaction, the Turkish govern-ment enacted Circular No. 1996/21,330 “which, inter alia, prohibitedpublic-sector employees from taking part in [the] national one-daystrike.”331 Ignoring the prohibition of the ministerial circular, a num-ber of workers of the Enerji Yapi-Yol Sen union went on strike and weresubjected to disciplinary sanctions. Unable to obtain redress in thedomestic courts, the Enerji Yapi-Yol Sen union brought a case beforethe ECtHR claiming that the conduct of the Turkish authorities—specifically Circular No. 1996/21—had breached its right to tradeunion freedom.332
The ECtHR opened its opinion by referring to the Grand Chamber’sdecision in Demir and Baykara and then addressed the question whetherthe Turkish government’s action amounted to an interference with theapplicant’s rights under Article 11 of the ECHR. The ECtHR recalledthat the ECHR requires legislation to allow trade unions—in a way thatdoes not contravene Article 11—to fight to protect their members’interests333 and affirmed, with another ground-breaking statement,that strikes, which allow unions to make their voices heard, constitutean important aspect of the protection of union members’ interests.334
To support its statement, the ECtHR noted that the right to strike isrecognized by the supervisory bodies of the International LabourOrganisation as an inseparable corollary of the right of association.335
Furthermore, the Court also recalled that the ESC protects the right to
23, 2010) (Turk.), available at http://www.nakpagumruk.com/HaberDetay.aspx?IDHaber�96.331. Press Release, European Court of Human Rights, Chamber Judgment: Enerji Yapi-Yol
Sen v. Turkey (Apr. 21, 2009), available at http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i�003-2712212-2963054.
332. Enerji Yapi-Yol Sen, App. No. 68959/01, ¶ 17 (Eur. Ct. H.R. Apr. 21, 2009).333. Id. ¶ 24 (“Or ce qu’exige la Convention, c’est que la legislation permette aux syndicats,
selon les modalites non contraires a l’article 11, de lutter pour la defense des interets de leursmembres.”) (citation omitted).
334. Id. (“La greve, qui permet a un syndicat de faire entendre sa voix, constitue un aspectimportant pour les membres d’un syndicat dans la protection de leurs interets.”) (citationomitted).
335. Id. (“La Cour note egalement que le droit de greve est reconnu par les organes decontrole de l’Organisation internationale du travail (OIT) comme le corollaire indissociable du
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strike as a means of ensuring the effective exercise of the right tocollective bargaining.336
Having decided that the right to strike enjoyed protection underArticle 11 of the ECHR, the ECtHR moved to review whether theinterference with the applicant’s right by the Turkish governmentcould be regarded as justified under Article 11(2) of the ECHR. In thisregard, the ECtHR acknowledged that Circular No. 1996/21 wasenacted in the exercise of a normative power that constituted a legalbasis for the interference.337 However, while the ECtHR expresseddoubts that Turkey—by prohibiting the right to strike—was pursuing alegitimate end, but the Court found it unnecessary to address thequestion.338 Instead, the ECtHR found that Turkey’s prohibition couldnot pass muster under the last, stricter part of its proportionality testbecause the measure could not be regarded as necessary in a demo-cratic society. The ECtHR recognized that the right to strike is notabsolute and may be subject to certain conditions and restrictions; assuch, the principle of freedom of association may be compatible with astrike ban for civil servants exercising essential state functions.339
However, the ECtHR also affirmed that, while certain categories of civilservants may be prohibited from going on strike, such a ban cannot bebroadly extended to all public servants or to employees of state-runcompanies.340 According to the ECtHR, a lawful restriction of the rightto strike should define as clearly and narrowly as possible the categoriesof officials to which it applies. In the Court’s view, Circular No. 1996/21had been drafted in general terms that completely deprived all publicservants of the right to strike without appropriately balancing this
droit d’association syndicale . . . .”) (referring to ILO, Freedom of Association and Protection of theRight to Organise Convention (No. 87) (adopted July 9, 1948)) (citation omitted).
336. Id. (“[La Cour] rappelle que la Charte sociale europeenne reconnaıt aussi le droit degreve comme un moyen d’assurer l’exercice effectif du droit de negociation collective.”).
337. Id. ¶ 27 (“[La Cour] considere qu’en l’espece la circulaire no 1996/21 prise dansl’exercice d’un pouvoir normatif constituait la base legale de l’ingerence litigieuse.”).
338. Id. ¶ 28 (“La Cour doute que l’ingerence dans la presente affaire poursuivait un butlegitime au sens de l’article 11 § 2 de la Convention. Toutefois, elle juge inutile de trancher laquestion eu egard a la conclusion a laquelle elle parvient sous l’angle de la necessite d’une telleingerence.”) (citations omitted).
339. Id. ¶ 32 (“La Cour reconnait que le droit de greve n’a pas de caractere absolu. Il peutetre soumis a certaines conditions et faire l’objet de certaines restrictions. Ainsi, le principe de laliberte syndicale peut etre compatible avec l’interdiction du droit de greve des fonctionnairesexercant des fonctions d’autorite au nom de l’Etat.”).
340. Id. (“Toutefois, si l’interdiction du droit de greve peut concerner certaines categoriesde fonctionnaires, elle ne peut pas s’etendre aux fonctionnaires en general, comme en l’espece,ou aux travailleurs publics des entreprises commerciales ou industrielles de l’Etat.”).
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against the imperative needs of Article 11(2) of the ECHR.341 TheCourt thus found that the Circular did not correspond to a pressingsocial need and that there had been disproportionate interference withthe applicant-union’s Article 11 rights;342 and therefore condemnedTurkey for violating the ECHR.343
D. The Possible Impact of the Case Law of the EuropeanCourt of Human Rights
Demir and Baykara and Enerji transformed the protection of the rightto strike in the ECHR system. In the former, the ECtHR ruled for thefirst time that Article 11 of the ECHR protects a right for workers toengage in collective bargaining and, in the follow-up case, it held thatArticle 11 also protects a right to take collective action. As has beenargued, the decisions “breathe[d] life into [the] hitherto moribundArticle 11”344 and opened a new page in the jurisprudence of theECtHR in the field of social and economic rights.345 As previouslyexplained,346 the ECtHR had traditionally interpreted Article 11 ofECHR “in a restrictive conservative manner, limiting its content andscope in the area of trade union rights.”347 By resorting to a dynamicinterpretation of the ECHR and drawing inspiration from the legalinstruments in force both in international law and EU law and from theevolving practice of the contracting parties, the ECtHR abandoned itsprevious case law and concluded that the rights to collective bargainingand to collective action are now an essential component of the right toassemble and to form trade unions enshrined in Article 11 of the
341. Id. (“Ainsi, les restrictions legales au droit de greve devraient definir aussi clairement etetroitement que possible les categories de fonctionnaires concernees. De l’avis de la Cour, enl’espece, la circulaire litigieuse etait redigee en des termes generaux qui interdisaient de maniereabsolue a tous les fonctionnaires le droit de greve, sans proceder a une mise en balance desimperatifs des fins enumerees au paragraphe 2 de l’article 11 de la Convention.”).
342. Id. ¶ 33 (“Ainsi, la Cour . . . conclut que l’adoption de cette circulaire et son applicationne correspondaient pas a un ‘besoin social imperieux’ et qu’il y a eu une atteinte disproportion-nee a la jouissance effective par le syndicat requerant des droits consacres a l’article 11 de laConvention.”).
343. Id. ¶ 34 (“[I]l y a eu violation de l’article 11 . . . .”).344. Charles Barrow, Demir and Baykara v. Turkey: Breathing Life into Article 11, 4 EUR. HUM.
RTS. L. REV. 419, 422 (2010).345. On the recent achievements of the ECtHR in the field of social and economic rights, see
Ellie Palmer, Protecting Socio-Economic Rights Trough the European Convention on Human Rights: Trendsand Developments in the European Convention on Human Rights, 2 ERASMUS L. REV. 397 (2009).
346. See supra text accompanying note 131.347. Barrow, supra note 344, at 421.
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ECHR.348
Furthermore, in defining the scope of protection of these rights, theECtHR adopted a labor friendly approach. In Enerji, in particular, theECtHR recognized that the right to strike, albeit not absolute, may berestricted by state governments only to pursue a legitimate end if it isnecessary in a democratic society. In the ECtHR’s view, therefore, apresumption of legality attaches to industrial action and it is up to thegovernment to demonstrate the proportionality of the interferencewith the worker’s right to strike. From this point of view, it may not beexaggerated to claim that the implications of the decisions of theECtHR could be “dramatic.”349 On one hand, Demir and Baykara andEnerji are likely “to have a significant effect on domestic law”350 espe-cially in those countries that are currently endowed with a very restric-tive regulation of the right to strike.351 On the other hand, the twodecisions “naturally raise[] the question about the relationship be-tween the [ECJ] and the [ECtHR’s case law] concerning the right tocollective action.”352 Indeed, the ECJ and the ECtHR have reachedquite different conclusions in their decisions, reflecting alternativeunderstandings of the meaning of the right to strike, of the scope of itsprotection and of the limits to its exercise. However, precisely thesetransformations that occurred in the case law of the ECtHR may leadthe ECJ to review its Viking and Laval jurisprudence on the right tostrike.
The ECJ already recognizes the case law of the ECtHR as a guiding
348. See also Graziella Romeo, Civil Rights v. Social Rights Nella Giurisprudenza della CorteEuropea dei Diritti dell’Uomo: C’e un Giudice a Strasburgo per i Diritti Sociali? [Civil Rights v. SocialRights in the Jurisprudence of the European Court of Human Rights: Is there a Tribunal in Strasbourg forSocial Rights?], in LO STRUMENTO COSTITUZIONALE DELL’ORDINE PUBBLICO EUROPEO [THE CONSTITU-TIONAL TOOL FOR THE EUROPEAN PUBLIC ORDER] 487, 487 (Luca Mezzetti & Andrea Morrone eds.,2011).
349. Keith Ewing & John Hendy, The Dramatic Implications of Demir and Baykara, 39 INDUS.L.J. 2 (2010).
350. Id. at 38.351. The impact of the decision of the ECtHR may begin to be particularly significant in the
United Kingdom. See, e.g., Nat’l Union of Rail, Mar. & Transp. Workers v. Serco (London &Birmingham Ry. v. Assoc. Soc’y of Locomotive Eng’rs and Firemen), [2011] EWCA (Civ.) 226(Eng.). For an assessment of how this recent case took into account the new case law of theECtHR, see Ruth Dukes, The Right to Strike Under U.K. Law: Something More Than a Slogan?, 40 INDUS.L.J. 302 (2011).
352. Jari Hellsten, Trade Unions Rights Under the ECHR, in REFORMS OF THE EUROPEAN SOCIAL
CHARTER 75, 80 (Niko Johanson & Matti Mikkola eds., 2011).
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source in its human rights jurisprudence.353 The impact of the deci-sions of the ECtHR on the legal system of the EU, in addition, wouldincrease after the entry into force of the Accession agreement of theEU to the ECHR.354 At the moment “the EU is not yet . . . a party to theECHR and therefore [is] not answerable directly to the ECtHR.”355
Nevertheless, once the EU becomes a party to the ECHR, it seems likelythat the ECtHR will review the action of the EU institutions, includingthe ECJ, for compatibility with the ECHR. By the same token, theECtHR may regard the standard for the protection of the right to strikedeveloped by the ECJ in Viking and Laval as falling short of the Enerjibenchmark.356 As some have argued, therefore, control by the ECtHRmay force the ECJ into “aligning itself to the [ECtHR] line.”357 If thiswere to happen, it seems clear that the transformations that have takenplace in the ECHR legal order could play a fundamental role inaddressing the challenge of ineffectiveness produced by the tensionsbetween domestic laws and EU law in the field of strike law. Indeed, asKeith Ewing and John Hendy have sharply observed, Demir and Baykaraand Enerji “provide the best opportunity to clean up the mess left by theECJ in the Viking and Laval cases”358 by strengthening labor rightsvis-a-vis economic rules of free market and competition.
However, several caveats are due when anticipating the potentialtransformative effect of the ECtHR case law on the protection of theright to strike in the EU legal order.359 In particular, Enerji held thatTurkey (a non-EU member state) was in violation of the ECHR becauseits legislation set up a total strike ban for public employees, hencedepriving the applicants tout court of their rights under Article 11 of theECHR. Nevertheless, Viking and Laval established a much less restric-tive regime for the exercise of the right to industrial action. Workerswere entrusted with a fundamental right to strike but this right was
353. See generally Sionaidh Douglas-Scott, A Tale of Two Courts: Luxembourg, Strasbourg, and theGrowing European Human Rights Acquis, 43 COMMON MKT. L. REV. 629 (2006).
354. See generally Jean-Paul Jacque, The Accession of the European Union to the European Conven-tion on Human Rights and Fundamental Freedoms, 48 COMMON MKT. L. REV. 995 (2011).
355. Ewing & Hendy, supra note 349, at 40.356. See Phil Syrpis, The Treaty of Lisbon: Much Ado . . . But About What?, 37 INDUS. L.J. 219, 233
(2008) (advancing this possibility even before the new decisions of the ECtHR on Article 11 of theECHR).
357. Hellsten, supra note 352, at 81358. Ewing & Hendy, supra note 349, at 48.359. See Filip Dorssemont, How the European Court of Human Rights Gave Us Enerji to Cope with
Laval and Viking, in BEFORE AND AFTER THE ECONOMIC CRISIS: WHAT IMPLICATIONS FOR THE
“EUROPEAN SOCIAL MODEL?” 217 (Marie-Ange Moreau ed., 2011).
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subject to a proportionality analysis, with the goal of balancing itsexercise together with other fundamental rights (e.g., freedom ofmovement). As such, it is not self-evident that the Viking and Lavalstandard is necessarily incompatible with Article 11 of the ECHR. At thesame time, in Enerji, the ECtHR acknowledged that the right to strike isnot absolute—not to mention the traditional margin of appreciationthat the ECtHR recognizes to the contracting parties in the applicationof the ECHR. A final issue to consider, then, is that the ECtHRclassically rules on the “vertical” obligations stemming from the ECHR:in Enerji, the ECtHR held that a state could not disproportionatelyrestrict Article 11 of the ECHR. It is uncertain, however, how Article 11would operate in a “horizontal” situation, i.e., one in which a privateparty claims that its labor rights have been restricted by another privateparty (e.g., a company) that also claims to be exercising its fundamen-tal rights (e.g., to pursue an economic activity).360
In conclusion—in Demir and Baykara and later in Enerji—the ECtHRhas allowed the right to bargain collectively and to take industrialaction to become one of the essential elements of the right to form andjoin a trade union for the protection of one’s interests enshrined inArticle 11 of the ECHR. These decisions represent a landmark judicialdevelopment in the framework of the ECHR, with potentially far-reaching consequences for the EU. As Sophie Robin-Olivier has ar-gued, “as a result of the continuous extension of the rights granted tounions under Article 11 of the [ECHR], in stark contrast to the . . .developments taking place in the EU, the ECtHR has appeared as themajor actor in the development of European labour law, from a tradeunion perspective.”361 The jurisprudence of the ECtHR—and theaccession of the EU to the ECHR—may put strong pressure on the ECJto revisit its case law on the right to strike with beneficial effects on thechallenges, which currently characterize the European multilevel re-gime. Yet as I have tried to emphasize, a number of caveats need to betaken into account before concluding too rapidly that the ECJ willinevitably follow (willy-nilly) the approach of the ECtHR. Indeed, itmay be that the transformations taking place at the ECHR level may notsuffice to address the challenge of ineffectiveness discussed in Section
360. For a distinction between “vertical” situations (i.e., situations in which supranationalrules apply between private parties and the government) versus “horizontal” situations (i.e.,situations in which supranational rules apply between private parties) with regard to EU law, seeArthur Hartkamp, The Effect of the EC Treaty in Private Law: On Direct and Indirect Horizontal Effects ofPrimary Community Law, 3 EUR. REV. PRIV. L. 5273 (2010).
361. Robin-Olivier, supra note 200, at 394.
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II. From this point of view, perhaps, other transformations within theEU legal order are needed. The next Section will discuss one of these.
VI. A WAGNER ACT FOR THE EU?
The previous Section analyzed several recent transformations takingplace in the case law of the ECtHR and has emphasized their impor-tance for the protection of the right to strike in Europe. At the sametime, Section V warned about the ability of these judicial developmentsto offer a fully satisfactory answer to the challenge of ineffectivenessthat emerges from the interaction between domestic and supranationallaw in the field of labor rights. This Section, therefore, investigates whatadditional reforms could be undertaken in the EU legal order toensure a long-term solution to the tensions between social rights andfree market that currently characterizes the European multilevel archi-tecture. In particular, whereas the recent case law of the ECtHRpromises an uncertain judicial response to the critical balance betweenmarket integration and national social rights struck by the ECJ in Vikingand Laval, this Section explores ways in which a legislative response tothese dynamics may prove to be more enduring and successful. Indoing this, I walk a path which was traced years ago by Joseph H.H.Weiler and Sybilla Fries, albeit in a more general context.362 In awell-known study about the competences of the EU institutions in thefield of human rights, the two authors emphasized how
[I]t is not only the [ECJ], as one of the institutions of the [EC],that has a duty to ensure the observance of fundamental rightsin the field of [EC] law, but . . . such duty rests, inherently, onall Institutions of the [EC] exercising their competences withinthe field of [EC] law.363
As such, I will not focus here on the role of the Charter of Rights,though with the entry into force of the Treaty of Lisbon, the Charterhas acquired binding value.364 A major factor seems indeed to weakenthe Charter’s transformative capacity as a legal instrument in the field
362. See Joseph H.H. Weiler & Sybilla Fries, A Human Rights Policy for the European Communityand Union: The Question of Competences, in THE EU AND HUMAN RIGHTS 147 (Philip Alston ed., 1999).
363. Id. at 157.364. For an examination of the impact of the Treaty of Lisbon in the field of social rights, see
generally Stefano Giubboni, I Diritti Sociali nell’Unione Europea dopo il Trattato di Lisbona [SocialRights in the European Union after the Treaty of Lisbon], 4 LA RIVISTA DELLE POLITICHE SOCIALI
[THE JOURNAL OF SOCIAL POLICY] 447 (2011).
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of strike law. This has not so much to do with Protocol 30 on theapplication of the Charter of Rights in Poland and the United King-dom.365 It is well known that the Treaty of Lisbon introduced into EUprimary law a special protocol—Protocol 30—with the goal of exclud-ing “the ability of the [ECJ], or any court or tribunal of Poland or of theUnited Kingdom, to find that the laws, regulations or administrativeprovisions, practices[,] or action[s] of Poland or of the United King-dom are inconsistent with the fundamental rights, freedoms[,] andprinciples that [the Charter] reaffirms.”366 This applies “in particularand for the avoidance of doubt” with the regard to the social rightscodified in Title IV of the Charter of Rights (in which Article 28—onthe rights to collective bargaining and collective action—is in-cluded).367
Scholars debate the real meaning of Protocol 30: whereas some haveargued that this Protocol “is totally useless [since] it can not prohibitlawyers from requesting the application of the rights codified in the[Charter of Rights],”368 others have emphasized that the Protocol may“contain a genuine opt-out”369 in the area of social rights. Beyond thedebate on the nature of the Protocol, however, there seems to beanother fundamental weakness related to the Charter. The Charter—despite not being legally binding—was already taken into account bythe ECJ in Viking and Laval so it is not clear whether—and, if so,how—the Protocol’s change of status would now compel the ECJ toreconsider its prior case law.370
In this Section, I explore another path and argue that the mosteffective way of protecting the right to strike in Europe is through theadoption of an EU regulation.371 This regulation, to be enacted accord-
365. Protocol 30 on the Application of the Charter of Fundamental Rights of the EuropeanUnion to Poland and to the United Kingdom, Dec. 17, 2007, 2007 O.J. (C 306) 156 [hereinafterProtocol 30].
366. Id.367. Charter of Rights, supra note 137, art. 28.368. JACQUES ZILLER, IL NUOVO TRATTATO EUROPEO [THE NEW EUROPEAN TREATY] 178 (2008).369. Catherine Barnard, The “Opt-Out” for the UK and Poland from the Charter of Fundamental
Rights: Triumph of Rhetoric over Reality?, in THE LISBON TREATY: EU CONSTITUTIONALISM WITHOUT A
CONSTITUTIONAL TREATY? 49 (Stefan Griller & Jacques Ziller eds., 2010).370. See Syrpis, supra note 356, at 232.371. The argument in favor of EC intervention in the field of strike law finds some noble
ancestors in writings dating to the 1970s, although at that time EC action was largely conceived as aform of harmonization between national laws. See Antoine Jacobs, Toward Community Action onStrike Law?, 15 COMMON MKT. L. REV. 133 (1978). My proposal does not pursue the goal of
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ing to the ordinary EU law-making process,372 should clearly state thatindustrial action in labor-management disputes having a cross-borderdimension is protected by EU law and possibly define the means oflawful collective action and the procedure to be followed by unionsbefore going on strike. To substantiate my claim, I draw some lessonsfrom the U.S. experience in the field of strike law. As argued above,373
the constitutional experience of the U.S. during the Lochner era pro-vides an anti-model for Europe.374 However, the New Deal also offerssome positive lessons.375 In particular, I explain how the adoption of an“EU Wagner Act”—may be a possible solution if Europe wants to avoida “race to the bottom” in the protection of social rights.376 In this light,I also analyze the Commission’s recent proposal for a regulation on theexercise of the right to strike in the context of the single market andunderline both its strengths and weaknesses. Needless to say, theproposal for an “EU Wagner Act” is controversial and raises a numberof questions about its legal and political feasibility. Additionally, thesame U.S. example warns us from putting too much faith in thecapacity of a legislative measure such as a Wagner Act to address thetensions between social rights and a free market in a federal system. Yetdespite all this, I am convinced that it is valuable to discuss thepossibility of a regulation for the protection of the right to strike in theEU by taking into account the U.S. constitutional experience.377
harmonizing national laws but of establishing a supranational standard for the protection of theright to strike to be applied in transnational situations.
372. As such, the Article will not dwell on the option of modifying the EU Founding Treaties,i.e., the primary/constitutional law of the EU, as has been suggested by the European TradeUnion Council (ETUC) which advocated the enactment of an EU Social Progress Protocol as anamendment to the EU Treaties, protecting, inter alia, the right to strike in the EU. ETUC Proposalfor a “Social Progress” Protocol, Mar. 18, 2009, http://www.etuc.org/a/5175.
373. See supra Section IV.B.374. See Eliasoph, supra note 202, at 467. See also Nicol, supra note 292, at 308.375. In this Article I explore how the United States can provide useful guideposts for Europe
in tackling the challenges of balancing free market and labor protection in a federalism-basedsystem of government. It may sound obvious, but it is worth clarifying, that this does not imply thatthe United States has a perfect system nor that there are no ways in which the United States canlearn from Europe in the realm of protecting social rights. This, in itself, could be the object of anentirely new article. See, e.g., Katrougalos, supra note 203, at 225.
376. Catherine Barnard, Regulating Competitive Federalism in the European Union? The Case of ECSocial Policy, in SOCIAL LAW AND POLICY IN AN EVOLVING EUROPEAN UNION 49, 57 (Jo Shaw ed. 2000).
377. In undertaking this comparative exercise I am fully aware of Professor Kahn-Freund’swarnings about too facilely advising the “transplant” of legal solutions from one legal system toanother in the field of labor law. Otto Kahn-Freund, On Uses and Misuses of Comparative Law, 37MOD. L. REV. 1, 1 (1974). Yet I am convinced (and I will try to demonstrate) that the strong
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A. European Challenges and American Lessons
The challenge that Europe is facing in the protection of the right tostrike is the consequence of the increasing impact of EU free marketrules over the national regulations of industrial relations. As MiguelPoiares Maduro has argued, “European economic integration . . .has generated pressures towards deregulation and challenged socialstandards and welfare.”378 Decisions such as Viking and Laval have beenlauded from a free market perspective379 but criticized from a labor lawperspective for the repercussions they produce at the national level andfor their interference with fundamental features of collective labor lawand industrial relations of the states. However, in this context it seemsmisplaced to complain that the EU is violating “prerogatives of Mem-ber States”380 and to recall the “good old days” in which nation stateswere sovereign in regulating their industrial relations systems withoutany EU interference.381 The current tensions within the Europeanmultilevel arrangement oblige a reconsideration of the strategy neededto take social rights seriously. The issue today is not the existence of atransnational common market in which goods, services, and capital arefree to move unhindered. Rather, the problem is that the creation of aEurope-wide continental market “has not been compensated for bysocial policies arising at the [EU] level.”382 The case of the right tostrike demonstrates how national responses are no longer conceivablein a multilevel architecture in which a transnational court can umpireconflicts between federal free movement rules and state labor lawguarantees.
institutional similarities between the European and United States constitutional arrangements—both based on federalism—makes the use of comparative sources appropriate and reliable inadvancing reforms de jure condendo.
378. Miguel Poiares Maduro, Striking the Elusive Balance Between Economic Freedom and SocialRights in the EU, in THE EU AND HUMAN RIGHTS 449, 464 (Philip Alston ed., 1999).
379. See, e.g., FRANK BENYON, DIRECT INVESTMENT, NATIONAL CHAMPIONS AND THE EU TREATY
FREEDOMS (2010).380. Stein Evju, Revisiting the Posted Workers Directive: Conflict of Laws and Laws in Contrast, 12
CAMBRIDGE Y.B. EUR. LEGAL STUD. 151, 176 (2010).381. In Fabbrini, supra note 15, I defined as “sovereigntist” the position of scholars who
oppose the developments in the protection of fundamental rights at supranational level and claimthat the member states should remain sovereign in deciding how to protect fundamental rights. Inmy work, I criticized the position of the sovereigntists as failing to understand the changingEuropean reality and to appreciate the importance of a shift of paradigm in devising appropriateresponses to the challenges of protecting fundamental rights in multilevel, federalism-basedarrangements.
382. Maduro, supra note 378, at 464.
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This is where the genius of the New Deal emerges. In the UnitedStates, the challenge of combining a continental market in whichcommerce could freely flow with the need to protect social rights (aneed that the Great Depression had made ever more pressing) wasensured through a massive transfer of competences to the federalgovernment. Bruce Ackerman has famously described the New Deal asa turning point in U.S. constitutional history: a constitutional momenteven in the absence of constitutional amendments.383 It is from theNew Deal “that we date the modern interventionist national govern-ment, with its comprehensive labor and welfare policies, its extendedweb of national regulatory measures covering vital economic sectorsformerly outside the scope of federal controls.”384
As explained above,385 a major piece in the New Deal puzzle was theNLRA, popularly called the Wagner Act. The Wagner Act set up a solidtemplate for the regulation of labor-management relations, gave alegislative recognition to the right to strike for workers engaged ininterstate commerce, and grounded the protection of collective actiondirectly in federal law. By setting up at the federal level a protectionthat was no longer possible at the state level, the Wagner Act repre-sented the most effective response to the challenge of combining freemarkets and social rights in the U.S. federal system. I have alreadyemphasized how the Wagner Act was slowly weakened by judicialinterpretation and legislative amendments.386 Yet this should not blindus from appreciating that, at the time of its enactment, “in some waysthe Wagner Act amounted to a workers’ bill of rights.”387
Although it may “seem odd to draw on the U.S. model to save the
383. See BRUCE ACKERMAN, WE THE PEOPLE: VOL. 2: TRANSFORMATIONS (1998).384. Harry Scheiber, State Law and “Industrial Policy” in American Development, 1790–1987, 75
CAL. L. REV. 415, 433 (1987).385. See supra Section IV.C.386. One of the major contemporary weaknesses of the NLRA, or Wagner Act, stems from
the malfunctions of the NLRB. Because of its increased politicization, the NLRB has diminishedits capacity to effectively solve labor-management disputes. In addition, because NLRB membersare nominated by the President with the consent of the Senate, political opposition to presidentialnominees has often lead the NLRB to lack the quorum needed to decided cases. See New ProcessSteel v. NLRB, 130 S. Ct. 2635 (2010) (holding that the NLRB needs three members out of five tobe able to deliver decision in labor-management disputes). See also William B. Gould IV, Cripplingthe Right to Organize, N.Y. TIMES, Dec. 17, 2011, at A25 (explaining how from January 1, 2012, theNLRB will only have two members on duty, being effectively incapacitated to work, unless politicalopposition to President Obama’s nominees stops).
387. SUNSTEIN, supra note 204, at 51.
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European social model from [its current] challenges,”388 I argue thatthe EU should endow itself with its own Wagner Act. This could bedone with the enactment of a regulation that clearly establishes theprima facie lawfulness of industrial action taken by unions and workersto protect their economic interests. The regulation would be appli-cable in all cross-border situations (i.e., when industrial action takesplace at the transnational level), leaving the member states free toregulate collective action in purely internal situations (i.e., whenindustrial action has no implication on the functioning of the internalmarket). To secure clarity and adequately balance free movement rulesand social protections, the regulation could specify the reasons andforms that legitimize industrial action and the possible procedure to befollowed by trade unions before going on strike. Although this solutionmay represent a step backward for countries that ensure a broadconstitutional right to strike and show a tolerant attitude to conflict,the compromise may still be acceptable. Indeed, a regulation ofpermitted industrial action would free the right to strike from the priorjudicial assessment of its proportionality and ultima ratio, which iscurrently required under the Viking and Laval standard.389
Additionally, as Claire Kilpatrick has explained in relation to thePosted Workers Directive,390 the adoption of EU legislative measuresdealing with the internal market and the protection of social rights mayhave several advantages.391 First, legislation offers a structure. Second,it gives valuable detail and certainty about what is lawful or not. Third,it allows for adaptation. Fourth, it provides a vehicle for the consolida-tion and codification of the case law of the ECJ. At the same time,however, legislation allows for reaction to the ECJ jurisprudence,providing an opportunity to “steer future interpretative developmentsin the area at issue by signaling to the [ECJ] the views of other
388. Barnard, supra note 201, at 606.389. Since the purpose of the regulation would be to enhance the current EU standard of
protection for the right to strike, the prospective EU Wagner Act could not reduce itself to asimple codification of the existing case law of the ECJ. See Fritz Scharpf, The Double Asymmetry ofEuropean Integration, Or: Why the EU Cannot Be a Social Market Economy (Max Planck Institute for theStudy of Societies, Working Paper No. 12, 2009). To ensure more protection of the right to strikethan the one emerging from the Viking and Laval line of cases, the EU regulation under discussionhere should include several substantive guarantees and procedural mechanisms to ensure them(e.g., an independent authority modeled on the NLRB charged to verify on a case by case basis thelawfulness of industrial actions).
390. Posted Workers Directive, supra note 163.391. Claire Kilpatrick, Internal Market Architecture and the Accommodation of Labour Rights: As
Good as it Gets?, 2 (EUI Department of Law, Working Paper No. 04, 2011).
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institutions as expressed in legislative output. . . . Or it may representan attempt to curb or curtail aspects of [ECJ] jurisprudence consideredundesirable by one or more of the other institutions.”392 Last but notleast, legislation has a democratic imprimatur. Evidence, indeed, revealsthat the ECJ takes legislative output seriously393 and that it rarelychallenges a statutory intervention of the EU legislature even when thelatter differs from the ECJ’s previous case law. From this point of view,an EU law regulating the exercise of the right to strike in transnationaldisputes in a way which is more protective for labor than the Viking andLaval standard would oblige the ECJ to reconsider its case law. Preciselythis effect was produced by the Wagner Act, which—despite its merelystatutory and non-constitutional nature—forced the Supreme Court toreconsider its previous jurisprudence on the extension of federalpowers and economic due process, thus opening a new page in thehistory of U.S. constitutional law.394
B. The Legal Basis Question
All this leads us to think about the possible legal basis for thisregulation.395 From a constitutional law point of view, it would seemthat the most appropriate basis for an EU measure regulating the rightto strike would be Article 28 of the Charter of Rights.396 The provision,in fact, recognizes a right to collective bargaining and collective action“in accordance with EU law.”397 This provision “per se may form theimpetus for the introduction of new legislation,”398 exactly as happens
392. Id. at 2-3.393. Id. at 11.394. The change in the jurisprudence of the Supreme Court was of course also favored by the
strong political pressures of the Roosevelt Administration, epitomized by the so-called “court-packing plan.” See POLENBERG, supra note 250, at 169.
395. Because the EU (like the United States) is a limited-powers organization, it can exerciseonly the competences that have been conferred to it by the founding treaties. See Jacques Ziller,The Constitutionalization of the European Union: Comparative Perspectives, 55 LOY. L. REV. 413, 431(2009). As a consequence, any legislative measure adopted by the EU needs to have a legal basis(i.e., a grant of powers to the EU in the field) in either the TEU, supra note 297, the TFEU, supranote 115, or the Charter of Rights, supra note 137. In this subsection I consider, as alternative legalbases for an “EU Wagner Act,” the Charter of Rights, the social policy chapter of the TFEU, andthe internal market chapter of the TFEU. For a discussion of another possible legal basis in theTFEU’s so-called Necessary and Proper Clause—Article 352 of the TFEU—see infra Section VI.C.
396. Charter of Rights, supra note 137, art. 28.397. Id. (emphasis added).398. Marianne Gijzen, The Charter: A Milestone for Social Protection in Europe?, 8 MAASTRICHT J.
EUR. & COMP. L. 33, 42 (2001).
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in national systems where constitutional provisions recognizing a rightto strike have been the basis for state legislation in labor-managementrelations. However, it is well known that the Charter of Rights includesa general clause, Article 51(2), which states that the Charter “does notextend the field of application of Union law beyond the powers of theUnion or establish any new power or task for the Union, or modifypowers and tasks as defined in the Treaties.”399 A similar statement ismade in Article 6(1)(2) of the TEU, which affirms that “[t]he provi-sions of the [Charter of Rights] shall not extend in any way thecompetences of the [EU] as defined in the Treaties.”400 Furthermore,as mentioned above,401 the United Kingdom and Poland securedduring the negotiation of the Treaty of Lisbon the adoption of a specialProtocol No. 30402 which aims at excluding the application of theCharter of Rights—notably Title IV, which includes Article 28—in theUnited Kingdom and Poland. All these factors make it unlikely that theCharter can be used as a source of legislative action at the EU level.
From a labor law point of view, then, an adequate legal basis for theenactment of an EU act regulating the right to strike would be Article151 of the TFEU, which details the competences of the EU in the fieldof social policy and the commitment of the EU to ensure “proper socialprotection [and] dialogue between management and labour.”403 It iswell known, however, that a major textual obstacle prevents the EUinstitutions from resorting to the general EU competence in the fieldof social policy to protect a right to strike. According to the already-mentioned Article 153(5) of the TFEU, “[t]he provisions of this Articleshall not apply to pay, the right of association, the right to strike or theright to impose lock-outs.” It is ironic that a strong lobby in favor of thecodification of this provision in the EU treaties has come not only fromthe United Kingdom (the EU member state with the lowest standard ofprotection of industrial action) but also from countries such as theNordic states, with an enhanced national legislation for the protectionof the right to strike.404 These countries thought that, with this no-
399. Charter of Rights, supra note 137, art. 51(2).400. TEU, supra note 297, art. 6(1)(2).401. TFEU, supra note 115, art. 151. See also supra text accompanying notes 371-72, 375, 377.402. Protocol 30, supra note 365.403. TFEU, supra note 115, art. 151. For a commentary of the provision, see Franck Lecomte,
Embedding Employment Rights in Europe, 17 COLUM. J. EUR. L. 1 (2011).404. See Ronnie Eklund, A Swedish Perspective on Laval, in Free Business Movement and the Right to
Strike in the European Community: Two Views, 29 COMP. LAB. L. & POL’Y J. 551, 569 (2008). See alsoBrian Bercusson, The Trade Union Movement and the European Union: Judgment Day, 13 EUR. L.J. 279,
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competence clause in the EU treaties, they could insulate their domes-tic systems from the influence of EU law. In fact, Viking and Laval sweptaside this expectation, denying that former Article 137(5) of the ECTreaty405 could limit the application of the EU free movement ruleswhen action by trade unions interfered with freedom of establishmentor freedom to provide services. However, Article 153(5) of the TFEU406
remains on the books, with the single effect of preventing the EU fromregulating the right to strike in a more labor-friendly way under itssocial policy competences.
Not all is lost, however. The U.S. experience can once again suggest away of finding a legal basis in the EU treaties to adopt an EU regulationon the right to strike. The Wagner Act, in fact, was enacted by the U.S.Congress in the exercise of its commerce powers, i.e., under thegeneral power that the federal legislature has “[t]o regulate com-merce . . . among the several states.”407 As James Gray Pope has ex-plained,
This was the result of a conscious choice by the bill’s creator,Senator Robert Wagner of New York. Labor leaders and othershad urged the Senator to ground his bill not on Congress’scommerce power but on its human rights powers. . . . Philosophi-cally, Senator Wagner took a similar view of his bill. . . . ButSenator Wagner adhered to the commerce power as a constitu-tional justification.408
This was politically the wisest strategy to ensure that the statute wouldobtain sufficient support throughout the legislative process and laterstand review before the Supreme Court (which had already struckdown the NIRA as an unconstitutional exercise of congressionalpower).409 This choice, of course, had its drawbacks.410 However, theWagner Act ensured that labor rights would be better protected than
289 (2007); Umberto Carabelli, Il Contrasto tra le Liberta Economiche Fondamentali e i Diritti di Scioperoe di Contrattazione Collettiva nella Recente Giurisprudenza della Corte di Giustizia: il Sostrato Ideologico e leImplicazioni Giuridiche del Principio di Equivalenza Gerarchica [The Contrast Between FundamentalEconomic Freedoms and the Rights to Strike and of Collective Bargaining in the Recent Jurisprudence of theEuropean Court of Justice: the Ideological Foundation and Legal Implications of the Principle of HierarchicalEquivalence], 2 STUDI SULL’INTEGRAZIONE EUROPEA [STUDIES ON EUROPEAN INTEGRATION] 234 (2011).
405. EC Treaty, supra note 113, art. 135(5) (now TFEU, supra note 115, art. 153(5)).406. TFEU, supra note 115, art. 153(5).407. U.S. CONST. art. I, § 8, cl. 3.408. Pope, How American Workers Lost, supra note 272, at 524.409. POLENBERG, supra note 250, at 68.
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they were under the prior jurisprudence of the Supreme Court on theunderstanding that “[e]xperience has proved that protection by law ofthe right of employees to organize and bargain collectively safeguardscommerce from injury, impairment, or interruption”411 rather thandamages it.
The EU could follow the same path. A regulation on strike actioncould be based on the EU competence to regulate the internal mar-ket.412 The general provision of Article 26 of the TFEU413 and thespecific clauses on the free movement of goods, free movement ofservices, and freedom of establishment could supply a sufficient justifi-cation for the EU to legislate in this field. The example of the PostedWorkers Directive414 shows that it is possible to resort to a legal basis inthe EU treaties dealing with the internal market to also ensure theprotection of labor rights:415 indeed, as the Directive clarifies “promo-tion of the transnational provision of services requires a climate of faircompetition and measures guaranteeing respect for the rights ofworkers.”416 At the same time, it is well known that the issue of strikeaction loomed large during the debates leading to the adoption of theMonti Regulation417 on “the functioning of the internal market inrelation to the free movement of goods among the member states.”418
In its final version, under the pressure of the trade unions, the MontiRegulation excluded the field of industrial action from its discipline,stating that
This Regulation may not be interpreted as affecting in any waythe exercise of fundamental rights as recognised in Member
410. Pope, How American Workers Lost, supra note 272, at 524 (arguing that as a consequenceof the legal basis of the Wagner Act, “each exercise of the NLRB’s authority had to be justified notin terms of labor freedom, but as an effort to prevent disruptions to commerce”).
411. 29 U.S.C. § 151 (2006) (emphasis added).412. For an argument in favor of a broad reading of the EU internal market legislative power,
see Bruno De Witte, A Competence to Protect: The Pursuit of Non-Market Aims Through Internal MarketLegislation, in THE JUDICIARY, THE LEGISLATURE AND THE EU INTERNAL MARKET 25 (Phil Syrpis ed.,2012).
413. TFEU, supra note 115, art. 26.414. Posted Workers Directive, supra note 163.415. See Kilpatrick, supra note 391, at 4.416. Posted Workers Directive, supra note 163, Recital 5.417. See Clauwaert, supra note 126, at 629-30.418. Council Regulation 2679/98 of 7 December 1998 on the Functioning of the Internal
Market in Relation to the Free Movement of Goods among the Member States, Dec. 12, 1998, 1998O.J. (L 337) 8 (EC) [hereinafter Monti I Regulation].
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States, including the right or freedom to strike. These rightsmay also include the right or freedom to take other actionscovered by the specific industrial relations systems in MemberStates.419
The regulation under discussion here should instead follow a differentstrategy and directly set up a framework for the regulation of the rightto strike at the EU level.
C. The Commission’s Recent Proposal for a Regulation on the Exercise of theRight to Strike in the EU Single Market
The direction suggested in this Article seems to have been recentlyfollowed by the EU Commission, which, on March 21, 2012, broughtforward a proposal for a regulation “[o]n the exercise of the right totake collective action within the context of the freedom of establish-ment and the freedom to provide services.”420 The Commission’sproposal—which draws from the May 9, 2010 report by former Commis-sioner Mario Monti421 and is thus referred to as the (proposed) MontiII Regulation422—pursues the goal of “lay[ing] down the generalprinciples and rules applicable at Union level with respect to theexercise of the fundamental right to take collective action within thecontext of the freedom of establishment and the freedom to provideservices.”423 As the Commission stated in the explanatory memoran-dum accompanying its proposal, the regulation seeks to address the“tensions between the freedoms to provide services and of establish-ment, and the exercise of fundamental rights such as the right of
419. Id. art. 2.420. Proposal for a Council 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, COM (2012) 130 final (Mar.21, 2012) [hereinafter Monti II Regulation (proposed)].
421. MARIO MONTI, A NEW STRATEGY FOR THE SINGLE MARKET: REPORT TO THE PRESIDENT OF THE
EUROPEAN COMMISSION (2010), available at http://ec.europa.eu/internal_market/strategy/docs/monti_report_final_10_05_2010_en.pdf [hereinafter Monti Report].
422. On the basis of the Monti Report, supra note 421, the Commission advanced a series ofproposals for legislative action. Monti II Regulation (proposed), supra note 420. Per Proposal 30,“[i]n 2011, the Commission will adopt a legislative proposal aimed at improving the implementa-tion of the [Posted Workers Directive], which is likely to include or be supplemented by aclarification of the exercise of fundamental social rights within the context of the economicfreedoms of the single market.” Id. art. 2(1). The Commission then held a public consultation onits proposals, collecting the opinions of the social partners.
423. Monti II Regulation (proposed), supra note 420, art. 1(1).
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collective bargaining and the right to industrial action”424 exposed bythe ECJ’s decisions in Viking and Laval. According to the Commission,in fact, a regulatory intervention at the EU level would be, among thevarious policy options, “the most effective and efficient solution toaddress the specific objective [of] reducing tensions between nationalindustrial relation systems and the freedom to provide services.”425
From this point of view, henceforth, the ratio of the Commission’sproposal largely corresponds to the arguments previously advanced infavor of a Wagner Act-style legislative intervention at the EU level.
As a legal basis for its proposal, however, the Commission arguedthat the regulation should be based on Article 352 of the TFEU, whichstates that
If action by the Union should prove necessary, within theframework of the policies defined in the Treaties, to attain oneof the objectives set out in the Treaties, and the Treaties havenot provided the necessary powers, the Council, acting unani-mously on a proposal from the Commission and after obtainingthe consent of the European Parliament, shall adopt the appro-priate measures.426
Hence, whereas in the previous subsection, I suggested that the EUinstitutions could adopt the regulation on the basis of the internalmarket powers—which may be equated to the U.S. Constitution’sCommerce Clause427—the Commission proposed as a legal basis Art. 352of the TFEU,428 which may be seen as the EU’s equivalent ofthe United States’ Necessary and Proper Clause.429 It is noteworthy,however, that the Commission did not find an insurmountable obstaclein drafting its proposal in the existence of Article 153(5) of theTFEU.430 Rather, as the Commission clarified in its explanatory memo-randum,
Article 153(5) [of the] TFEU excludes the right to strike fromthe range of matters that can be regulated across the EU by way
424. Commission Explanatory Memorandum for Monti II Regulation (proposed), supra note420, at 8 [hereinafter Commission Explanatory Memorandum].
425. Id. at 9.426. TFEU, supra note 115, art. 352.427. U.S. CONST. art. I, § 8, cl. 3.428. TFEU, supra note 115, art. 352.429. U.S. CONST. art. I, § 8, cl. 18.430. TFEU, supra note 115, art. 153(5).
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of minimum standards through Directives. However, the [ECJ]rulings have clearly shown that the fact that Article 153 does notapply to the right to strike does not as such exclude collectiveaction from the scope of EU law.431
As such, the Commission’s proposal reflects the understanding that,after Viking and Laval, the goal to shield national industrial relationssystems from EU law, originally pursued by Article 153(5) of the TFEU,has become moot and that action at the EU level is hence nowpermitted to ensure greater protection of labor rights.
Nevertheless, from the point of view of content, the proposed MontiII Regulation does not seem to enshrine any ground-breaking provi-sion. After Article 1(2)’s somewhat cryptic statement that the proposedRegulation shall not, in purely internal situations,432 affect “the exer-cise of fundamental rights as recognised in the Member States, includ-ing the right or freedom to strike or to take other action covered by thespecific industrial relations systems in Member States in accordancewith national law and practices,”433 Article 2 of the proposed Monti IIRegulation states that “[t]he exercise of the freedom of establishmentand the freedom to provide services enshrined in the [TFEU] shallrespect the fundamental right to take collective action, including theright or freedom to strike, and conversely, the exercise of the fundamen-tal right to take collective action, including the right or freedom tostrike, shall respect these economic freedoms.”434 This provision, whichrepresents the central clause of the regulation, in fact simply restatesthe general principle of proportionality, which, in line with the practiceof the ECJ, is the standard tool for the reconciliation of different,conflicting constitutional interests. However, precisely because theECJ’s application of the principle of proportionality was at the core ofthe Viking and Laval rulings (and at the core of the criticism of thesedecisions), it is difficult to see how this provision of the proposed MontiII Regulation is likely to trigger a change in the case law of the ECJ and
431. Commission Explanatory Memorandum, supra note 424, at 11.432. Article 1(2) of the proposed Monti II Regulation, supra note 420—which largely
reproduces the content of Article 2 of the Monti I Regulation, supra note 418—does not refer topurely internal (i.e., intra-state) situations. However, given the proposed Monti II Regulation’sgeneral purpose of regulating the right to strike in interstate labor disputes, it must be concludedthat the provision of Article 1(2)—which proclaims the non-affectation of state right to strikeregimes—can only apply to intra-state labor-management disputes in which the EU freedom ofestablishment and to provide services are not at play.
433. Monti II Regulation (proposed), supra note 420, art. 1(2).434. Id. art. 2.
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allegedly enhance the social dimension of the EU. From a substantivepoint of view, therefore, it may be argued that the proposed Regulationlargely turns out to be a codification of the case law of the ECJ.
The most innovative part of the proposed regulation may instead layin the procedural provisions regulating the exercise of the right tostrike in the context of the single market. Article 3, in fact, allows theuse of alternative dispute resolution mechanisms in those “MemberStates, which, in accordance with their national law, tradition orpractice, provide for alternative, non-judicial mechanisms to resolvelabour disputes.”435 In addition, emphasizing the proactive role of thesocial partners at the EU level, the regulation establishes that
[M]anagement and labour at the European level may, actingwithin the scope of their rights, competences and roles estab-lished by the [TFEU], conclude agreements at Union level orestablish guidelines with respect to the modalities and proce-dures for mediation, conciliation or other mechanisms for theextrajudicial or out-of-court settlement of disputes . . . with across-border character.436
Recourse to alternative non-judicial dispute mechanisms, otherwise,“may not deprive interested parties from recourse to judicial remediesfor their disputes or conflicts”437 and shall be without prejudice to therole of national courts in labor disputes as well as to the role of theECJ.438 These procedural provisions, which are somehow reminiscentof the mechanisms regulating collective action in the Nordic coun-tries,439 could perhaps represent a possible means to improve theexisting EU legal framework on the right to strike. Nevertheless, it isunclear to what extent these procedures will be uniformly availablethroughout the EU until the social partners agree on a proper contrac-tual regime of alternative dispute resolutions in transnational labordisputes.440
435. Id. art. 3(1).436. Id. art. 3(2).437. Id. art. 3(3).438. Id. art. 3(4).439. See supra Section II.B.440. Article 3(1) of the proposed Regulation allows those member states which already have
mechanisms of alternative dispute resolutions to use them where the labor-management dispute istransnational in character. Monti II Regulation (proposed), supra note 20, art. 3(1). However, theproposed Regulation does not require those member states that do not yet have mechanisms of
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Ultimately, the Commission’s proposed Monti II Regulation may beregarded as consistent with this Article’s argument that action at theEU level is required to address the tensions between state social rightsguarantees and EU free movement rules. The Commission’s proposalcertainly raises a number of critical questions. First, is the legal basischosen for the regulation the most appropriate one or is it likely, givenArticle 352’s requirement of unanimous consent by the Council,441 toincrease the political difficulties for its adoption? Second, is the substan-tive provision of the proposed Regulation, which defines the condi-tions under which the right to strike can be exercised in transnationallabor disputes, likely to improve the existing EU standard for theprotection of the right to strike, or will it simply codify the ECJ’sproportionality-based case law as seen in Viking and Laval ? Third, arethe procedural provisions of the regulation, which introduce severalinnovative opportunities for the use of mechanisms of alternativedispute resolutions in labor-management conflicts, likely to innovatethe existing legal framework or will they be dependent on subsequentand uncertain action by the social partners? Despite these relevantconcerns, the Commission’s proposal appears to be a move in the rightdirection by recommending the enactment of an EU-level regulation asthe most adequate response to the challenge posed by Viking andLaval.442
alternative dispute resolutions to introduce them. Consequently, it seems that a certain asymmetryis likely to exist between the member states until social partners regulate the field with agreementsat the EU level.
441. TFEU, supra note 115, art. 352.442. The Commission’s proposal, because of its controversial content, has triggered for the
first time the activation of the so-called “yellow card procedure.” Pursuant to Article 6 of ProtocolNo. 2 on the application of the principles of subsidiarity and proportionality, 2010 O.J. (C 83) 206,every legislative proposal of the Commission (and of the other EU institutions) shall be submittedto the national parliaments, which are empowered to review the compatibility of the proposal withthe principle of subsidiarity. See TEU, supra note 297, art. 5 (stating that “in areas which do not fallwithin its exclusive competence, the Union shall act only if and in so far as the objectives of theproposed action cannot be sufficiently achieved by the Member States, either at central level or atregional and local level, but can rather, by reason of the scale or effects of the proposed action, bebetter achieved at Union level”). If at least one-third of the national parliaments advance areasoned opinion that the Commission’s proposal is incompatible with the principle of subsidiar-ity, the Commission must review its draft. This procedure is called “yellow card.” In the case of theCommission’s proposal for a regulation on the exercise of the right to strike in the single market,for the first time the conditions for the activation of the “yellow card procedure” were met.Nevertheless, an assessment of the opinions prepared by the national parliaments reveals thatnone of these effectively identified a problem of subsidiarity. Reasoned opinions addressed issuessuch as the legal basis, the content, the proportionality, and the political opportunity of the
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D. On the Difficulties of, and Need for, an EU Wagner Act
The ECJ’s decisions in Viking and Laval have demonstrated thatinsulating national industrial relations systems from the impact of EUlaw is no longer an option.443 The interaction between domestic andsupranational law is now such that any meaningful attempt to counter-balance the pressures emerging from EU free market rules must alsotake place at the EU level. As such, the enactment of an “EU WagnerAct” would acknowledge that only an EU legislative measure regulatingthe exercise of transnational industrial action can offer a satisfactoryanswer to the challenge of ineffectiveness posed by Viking and Laval.Arguments in favor of an EU social policy attempt to reintroducepolitical control over the economic sphere at the supranational level.Just like the U.S. federal government during the New Deal, “[t]he [EU]would become the relevant level for the establishment and protectionof social rights.”444 At the same time, the adoption by the EU’s politicalbranches of an act regulating the right to strike in cross-border situa-tions would also cast a form of social legitimacy in an area, which is nowde facto pre-empted by EU law.445 It seems
[I]ncontrovertible that the political institutions may adoptmeasures of human rights in all those fields which are controlledmaterially by [EC] law, either under exclusive or concurrentjurisdiction, and in which the object of the human rightslegislation would be either [EC] institutions or complementaryto [EC] laws and policies.446
Needless to say, the proposal for an “EU Wagner Act” regulating theright to strike meets with many difficulties. The topic is extremelycontroversial and the social partners find it difficult, even now, to agree
Commission’s proposal but did not find convincing arguments to challenge its compatibility withthe principle of subsidiarity. In fact—it has been argued in this Article—that, because of thetransnational dimension of the problem that the Commission’s proposal seeks to address, onlyaction at the EU level can be adequate and satisfactory.
443. See MIA RONNMAR, EU INDUSTRIAL RELATIONS V. NATIONAL INDUSTRIAL RELATIONS: COMPARA-TIVE AND INTERDISCIPLINARY PERSPECTIVES (2008).
444. Maduro, supra note 378, at 467.445. On the question of pre-emption in the context of the Viking and Laval jurisprudence,
see Deakin, supra note 193, at 608.446. Weiler & Fries, supra note 362, at 161 (emphasis added).
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on a common basis for action.447 The EU law-making process isburdensome and, at the moment, a consensus among the relevantinstitutional actors seems to be missing on the need to enact a similarregulation and, even more, on its possible content.448 While the EUParliament has traditionally played a key pro-labor role,449 strongdisagreement is likely to emerge within the EU Council—where alltwenty-seven EU member states are represented—between countriesthat may be willing to enhance the protection of the right to strike atthe supranational level and countries, such as the United Kingdom,which greatly fear any such development.450 If the proposed Monti II
447. For the opposing views of the social partners, see European Trade Union Confederation(ETUC), Report on Joint Work of the European Social Partners on the ECJ Rulings in the Viking, Laval,Ruffert and Luxembourg Cases, Mar. 19, 2010, available at http://www.etuc.org/IMG/pdf_Joint_report_ECJ_rulings_FINAL_logos_19.03.10.pdf.
448. See Kilpatrick, supra note 391, at 3.449. See Clauwaert, supra note 126, at 632 (reporting that the proposal advanced by
Rapporteur Ria Oomen-Ruijten of the EU Parliament’s Committee on Employment and SocialAffairs on January 14, 1997, to introduce regulation of transnational strikes at the EU level stated,inter alia, that “[t]he right to resort to collective action in the event of a conflict of interests shallinclude the right to strike at national and transnational level, in particular when trans-frontierworkers are affected by employment policies pursued by the undertaking where they areemployed”). See also Report of the Committee on Employment and Social Affairs on TransnationalTrade Union Rights in the European Union (Mar. 20, 1998), Doc. A4-0095/98, available athttp://www.europarl.europa.eu/sides/getDoc.do?pubRef�-//EP//NONSGML�REPORT�A4-1998-0095�0�DOC�PDF�V0//EN [hereinafter Oomen-Ruijten Report]. On July 2, 1998, theplenary of the Parliament approved a resolution on transnational trade union rights in the EU.European Parliament Resolution on Transnational Trade Union Rights, July 20, 1998, 1998 O.J.(C 226) 9, 13. “Parliament, based on the Oomen-Ruijten Report, considered it necessary that[ILO] Conventions Nos. 87 and 98 as well as the Council of Europe’s [ESC] be applied at [the EC]level. It also called for fundamental transnational trade unions rights to be enshrined in the[Treaty on European Union]. Pointing out that social consensus is an essential condition forlasting social and economic development, Parliament advocated that representative trade unionorganizations be involved in establishing union rights at the European level and enter intodialogue with the social partners with a view to creating appropriate instruments to avoidcollective labor disputes. Oomen-Ruijten Report, supra, at 4-10. More recently, on October 22,2008, the Parliament approved another resolution on challenges to collective agreements in theEU, stating that “fundamental social rights are not subordinate to economic rights in a hierarchyof fundamental freedoms; therefore[, the Parliament] ask[ed] for a re-assertion in primary law ofthe balance between fundamental rights and economic freedoms in order to help avoid a race tolower social standards.” European Parliament Resolution of 22 October 2008 on Challenges toCollective Agreements in the EU (2008/2085(INI)) ¶ 35, Jan. 21, 2010, 2010 O.J. (C 15 E) 50, 58.See also European Parliament Resolution on Challenges to Collective Agreements in the EU,Jan. 8, 2009, 2009 O.J. (C 3 E) 22.
450. On the defensive attitude of the United Kingdom against social rights regulationsoriginating in the EU, see Barnard, supra note 369.
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Regulation were to be adopted under Article 352 of TFEU451—asproposed by the Commission—this would require unanimity, so eachEU member state would be able to veto the Commission’s proposal.452
The possibility of resorting to qualified majority voting would be leftopen if instead the regulation was to be adopted under the internalmarket powers of the EU. Nevertheless, as long as Article 153(5) of theTFEU textually excludes the field of strike law from the application ofthe EU competences in the social sphere,453 it would seem that theenactment of legislation in this field, in the absence of a widespread orunanimous political consensus among the states, would be unlikelybecause of the following credible threat: states being outvoted in theCouncil could start judicial proceeding before the ECJ for ultra viresaction by the EU institutions.454
In addition, one should also not forget the warnings of the U.S.experience concerning the enactment of a federal overhaul in the fieldof industrial relations. The Wagner Act designed a coherent andeffective framework for the regulation of the right to strike for workersengaged in interstate commerce, but it did not prevent the subsequentlegislative and judicial developments that dealt a heavy blow to theprotection of the right to collective action in the U.S. An “EU WagnerAct” would not be immune from similar dynamics. Some of these riskscould perhaps be prevented by carefully drafting the EU regulation in
451. TFEU, supra note 115, art. 352.452. It may be noted that, on the same day on which the Commission published its proposed
Monti II Regulation, supra note 420, the French Ministry of Labor published a press release inwhich it criticized the formulation of Article 2 of the proposed Monti II Regulation for being notsufficiently protective of collective labor rights and announced that it would veto the Commis-sion’s proposal as it currently stands. Communique de Presse [Press Release], Ministere duTravail, de l’Empoli et de la Sante [Ministry of Labor, Employment and Health], Des Propositionsde la Commission Europeenne sur le Detachement des Travailleurs [On the European Commis-sion’s Proposals on the Posting of Workers] (Mar. 21, 2012), available at http://www.rpfrance.eu/Communique-de-presse-de-Xavier.html.
453. TFEU, supra note 115, art. 153(5).454. The existence of Article 153(5) of the TFEU in itself generates a major difference
between the legal situation of contemporary European and that of pre-1935 United States. Whenthe Wagner Act was adopted, of course, no express provision of the U.S. Constitution excludedthe competence of the federal government in the field of industrial action. Yet the distinctionbetween the two systems should not be overrated. When Congress enacted the Wagner Act in1935, the authoritative interpretation of the U.S. Constitution offered by the U.S. Supreme Courtin Schechter Poultry clearly excluded the federal government from resort to the Commerce Clause,U.S. CONST. art. I, § 8, cl. 3, to regulate industrial action. See Schechter Poultry Corp. v. UnitedStates, 295 U.S. 495 (1935) (invalidating NIRA as an unconstitutional exercise of federal powers inthe field of industrial relations).
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order to ensure specific labor protections (e.g., codifying a prohibitionfor employers to fire or permanently replace striking workers ordefining in a clear manner the room for permitted sympathy strikes,etc.). However, it is widely recognized that legislation is often the resultof political bargains and incompletely theorized agreements betweeninstitutional actors.455 As such, “the open texture of language and theobscure wording and complex architecture resulting from legislativecompromises facilitates the introduction of new meaning”456 throughjudicial interpretation. Nothing, then, prevents a subsequent EU legis-lature from amending, or even repealing, what the previous EU legisla-ture enacted. From this point of view, of course, the adoption of an “EUWagner Act” would inevitably lay on shaky foundations, its successbeing tied to friendly judicial constructions and continuing politicalsupport.
Despite all this, it is time for Europe to begin seriously discussing thefuture of its transnational system of industrial relations and of theprotection of the right to strike. The unprecedented financial crisisthat the EU is currently experiencing (and that many analogize to theGreat Depression in the United States) is making this debate all themore momentous. This Section has argued that a possible response tothe challenges currently affecting the regulation of collective actionmay come from an “EU Wagner Act”: an EU regulation setting acomprehensive legislative framework for the protection of transna-tional actions with a cross border dimension. I have sketched what thepossible legal basis and content of this regulation could be and thenanalyzed some of the strengths and weaknesses of the Commission’srecent and ambitious proposal for a regulation on the exercise of theright to strike in the context of the single market. My aim has not beento focus on the technicalities of the EU legislative intervention in thisfield. In my view, labor lawyers with their technical expertise canundertake this task much better. As a comparative constitutionallawyer, rather, my goal has been to demonstrate how the constitutionaldynamics of tensions taking place in the European multilevel architec-ture are typical of federal arrangements and, in order to be addressed,require a response at the supranational level. From this point of view,the Commission’s recent proposal, despite raising several relevantquestions in terms of content, appears to be moving in the right
455. I draw the expression “incompletely theorized agreements” from Cass Sunstein, Incom-pletely Theorized Agreements, 108 HARV. L. REV. 1733 (1995), who uses it, however, to identify apossible basis for judicial decision-making.
456. See Kilpatrick, supra note 391, at 18.
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direction. Adopting an EU legislative measure on the protection ofthe right to strike may be a legally daunting if not politically impos-sible task. Nevertheless, if Europe wants to tackle the tensions be-tween national and supranational laws in the field of industrial action,it may need a “EU Wagner Act.” If Europe wants to solve the clashbetween market integration and protection of social rights, it needs aNew Deal.
VII. CONCLUSION
The purpose of this Article has been to analyze the protection of theright to strike in Europe in a comparative perspective with the UnitedStates. The European architecture for the protection of fundamentalrights is increasingly described as a multilevel system in which nationaland supranational laws intertwine. The existence of a plurality ofsources and standards for the protection of fundamental rights gener-ates, however, complex constitutional dynamics. As I have argued, theemergence at the EU level of a judge-made standard for the protectionof the right to strike has created new challenges for those memberstates that ensure an enhanced protection of collective labor rights. Asexplained in Section II, the EU member states have traditionallyoffered different models for the regulation of industrial action: whilesome states have very protective labor law regimes, which recognize theright to strike as a constitutional right, others subject industrial actionto more limitations—either through social partners’ agreements orthrough a proportionality review—not to mention the United King-dom, where striking is regarded not even as a right but simply astatutory immunity from common law principles. Beyond this frag-mented picture, however, the impact of EU law in the field of strike lawis becoming increasingly significant. As I detailed in Section III, inViking and Laval, the ECJ recognized that the right to strike is afundamental right in the EU constitutional order. However, to upholdthe continuing functioning of the EU common market, the ECJ hassubjected the right to strike to severe restrictions that have challengedthe protection of the right to collective action as it exists in manymember states.
The interaction between national and EU law in the field of laborrelations has thus exposed several tensions. Yet this state of affairs is nota sui generis phenomenon. Rather, as I endeavored to explain in SectionIV, the tension between state and transnational laws is a recurrentfeature of multilevel, federalism-based constitutional systems. In theUnited States, indeed, striking a balance between state labor rights andfederal free market rules has also proved problematic for long time. In
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the early twentieth century, state social legislation was subject tojudicial review by the federal judiciary, and although the U.S. SupremeCourt recognized the existence of a constitutional right to strike, itdeprived this right of much meaning in order to ensure that interstatecommerce would not be impaired. The New Deal, however, profoundlychanged the status quo by acknowledging that if social rights were to betaken seriously vis-a-vis free market rules, this had to be done at thefederal level. The Wagner Act established a comprehensive system oflabor-management relations and codified a statutory right for workersto go on strike. The Wagner Act was later interpreted to pre-empt statelegislation, but in the field not covered by federal laws, states havemaintained very diverse regulatory regimes for industrial action. De-spite its slow weakening through legislative amendments and judicialconstructions, the Wagner Act still remains today the basic frameworkfor the regulation and the protection of the right to strike at the federallevel in the United States.
In light of the U.S. experience, in Section V I explored the implica-tions of the most recent transformations taking place in the case law ofthe ECHR. In the recent Demir and Baykara and Enerji decisions, theECtHR has acknowledged that Article 11 of the ECHR protects a rightto collective bargaining and collective action. These milestone deci-sions have opened a new perspective in the protection of strike actionat the European level and could have a major influence on the ECJ. Asthe Treaty of Lisbon has entered into force,457 the EU is now bound toaccede the ECHR and, once this happens, the ECJ (like the other EUinstitutions) will be subject to review by the ECtHR for compliance withECHR standards. As a consequence of these transformations, it couldbe envisaged that the ECJ will revise its Viking and Laval jurisprudenceand align itself to the new labor-protective case law of the ECtHR. Yet,as I cautioned, it is difficult to predict whether this shift will necessarilyoccur as several factors distinguish the context and the content of therulings of the two European supranational courts, and it may beperhaps possible for them to avoid an undesirable clash. If this is thecase, then other solutions to the challenge of ineffectiveness thatemerge from the interaction between state and EU law will be needed.To this end, in Section VI, I discussed the possibility for the EU to enacta legislative measure that democratically regulates the contours ofindustrial action at the supranational level in Europe.
As things currently stand in Europe, the exercise of collective action
457. Treaty of Lisbon, supra note 114.
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in industrial conflicts with a cross-border dimension is de facto sub-tracted from the regulations provided by the member states andsubjected to the judge-made standard developed by the ECJ in Vikingand Laval. In devising a framework for the right to strike at thesupranational level that complies with the EU free market principle,the ECJ has substantially pre-empted state regulations of industrialaction in transnational labor disputes. Since states cannot go beyondthe ceiling of protection of the right to strike provided at the EU level itappears that only a legislative reform at the supranational level wouldbe capable of striking a new balance between free market rules andsocial rights guarantees that is more protective of the right to collectiveaction. Hence, the proposal for an “EU Wagner Act.” As in the UnitedStates during the New Deal, when it was understood that only a majortransfer of policy powers to the federal government would counter-balance the laissez-faire trends inherent in the interstate commonmarket, Europe also needs to discuss endowing itself with an EUregulation protecting the right to strike in ways that are analogous tothose of the U.S. Wagner Act. Needless to say, this proposal is controver-sial and difficult to realize, not least due to the hurdle of Article 153(5)of the TFEU.458 Yet I have examined ways in which the EU might enactthis bill under its internal market competences and reported how theCommission recently advanced a proposal for a regulation on theexercise of the right to strike in the single market on the basis ofArticle 352 of the TFEU.459 Since the substantial regulation of transna-tional industrial action is now provided by the ECJ’s case law on freemovement, it would seem a fortiori that the democratic institutionsthat enjoy the legitimacy to adopt internal market legislation in the EUsystem of governance should be able to regulate the field.
Of course, an “EU Wagner Act” would not be a panacea. The sameexample of the U.S. Wagner Act warns us from placing too much faithin the capacity of a legislative act to provide a long-lasting protection ofthe right to collective action. At the same time, the lessons that Europeshould desperately seek to learn from the U.S. experience is that nosuccessful protection of labor rights can be ensured in a federalism-based constitutional arrangement as long as the tension between socialrights and free market corresponds with conflicts between, on the onehand, state laws and practice and, on the other, federal rules andprinciples. If social rights are to be taken seriously in Europe, this
458. TFEU, supra note 115, art. 153(5).459. Id. art. 352.
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requires a new foundation for the protection of social rights at theEU level along the lines drawn in the United States by the New Deal.The challenge of ineffectiveness characterizing the field of strike lawand emerging from the complex interaction between a plurality offundamental rights standards in Europe can be addressed only byenhancing the mechanisms for the protection of collective laboraction at the supranational level in Europe. State sovereigntism is nolonger an option. To quote Mauro Cappelletti and David Golay onceagain, it is clear that also in the field of the protection of labor rights“Europe’s best future, indeed perhaps the only future, lies in integra-tion.”460
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