At the time I did not notice this, but now I found a background paper to the proposal for a ‘Council Regulation on the exercise of the right to take collective action’.
This background paper is a mostly legal discussion of solving enforcement problems related to the Posted Workers Directive (96/71/EC). The opinion of the Commission staff that prepared this document supports option B, which is a proposal for binding rules on the ‘definition of posting and additional provisions aiming at reducing abuses and circumvention of the applicable working conditions.’ But the bit that caught my attention was:
A legislative initiative clarifying the exercise of the fundamental right to collective action within the context of the freedom of establishment and the freedom to provide services would have to be adopted on the basis of Article 352 TFEU. Such an initiative would not establish rules regarding the exercise of the right to strike. (my bold)
(Article 352 TFEU says:
(ex Article 308 TEC)
1. If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures. Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament.
2. Using the procedure for monitoring the subsidiarity principle referred to in Article 5(3) of the Treaty on European Union, the Commission shall draw national Parliaments’ attention to proposals based on this Article.
3. Measures based on this Article shall not entail harmonisation of Member States’ laws or regulations in cases where the Treaties exclude such harmonisation.
4. This Article cannot serve as a basis for attaining objectives pertaining to the common foreign and security policy and any acts adopted pursuant to this Article shall respect the limits set out in Article 40, second paragraph, of the Treaty on European Union.
I think the explicit intention here is not to establish rules regarding the right to strike. This relates to art. 352(3) above, on the harmonisation of legislation, but more explicitly to Article 153(5) TFEU, which explicitly excludes the right to strike from the provisions over which the Union has competence to legislate. On the other hand:
At EU level, the right to strike is enshrined in Article 28 of the Charter of Fundamental Rights of the European Union (139Kb PDF) (entitled ‘Right of collective bargaining and action’):
Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.
So in short, it seems that even within the context of a directive which is pan-European law, basically, the EU is not allowed to create the right to strike in that context, and as the proposal for the Council Regulation shows, there is a quite explicit intention to subordinate the right to strike to the freedom to provide services, through the three-stage tests national courts may apply. Of course, this is framed in legal-speak:
A fair balance between fundamental rights and fundamental freedoms will in the case of a conflict only be ensured ‘when the restriction by a fundamental right on a fundamental freedom is not permitted to go beyond what is appropriate, necessary and reasonable to realise that fundamental right. Conversely, however, nor may the restriction on a fundamental right by a fundamental freedom go beyond what is appropriate, necessary and reasonable to realise the fundamental freedom.’
We should probably wait and see what this all means, but with the likely growth of the use of ‘posted workers’ this is an issue national labour unions should have a keen interest in.