Tag Archives: Council Regulation

More background on the ‘attack to the right to strike’

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:

Article 352

(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.


Labour rights and the Eurocrisis

While some feel that processes like the European Social Dialog blur important distinctions between Labour and Capital, some feel that these dialog processes are important. And although there are many critical issues to address, the Social Dialog has led to important achievements, such as the Framework Agreement on Parental Leave.

Nonetheless, the economic integration of Europe and all that this includes has been seen by many as an essentially neo-liberal project, although there have been strong forces trying to preserve the social aspects of Europe. After all, many aspects of European integration have been about liberalizing markets – whether financial, labour or for goods and services. And as I wrote last year, regarding the Proposal for Regulation on the excercise of the right to take collective action within the context of the economic freedoms of the single market – COM(2012) 130:

Regarding the scope of the concept of ‘services’ and the growing use of posted workers in a wide variety of industries, it must be considered a dubious development that there might be soon an at least two-tier labour market (in terms of labour rights): those who are employed directly enjoy the labour laws of the country where they work (on the basis of the free movement of workers) and those that are either self-employed or categorized as posted workers, through outsourcing. The latter enjoy much less legal protection and substantive labour rights than the former.

As far as I know, this proposal has not yet been formally become law, but it is nonetheless mentioned as a legislative initiative for 2012.

But those things aside, now something else is happening, parallel to the EU-level developments which probably have proceeded at their own pace.

As the EU policy elite demands, countries like Spain, Greece and Ireland are implementing austerity policies to become competitive again. Elsewhere in my blog and on the net there are many sources that show these policies are deeply wrong and simply crush the populations in those countries. It is no wonder Spanish, Irish and Latvian migration abroad has increased very much recently. But these demands for austerity also affect labour rights – which emphasises the neo-liberal heritage of the European project: labour unions make labour more expensive, so they must be dealt with. Even though this is obviously not always true, especially taken in consideration labour productivity gains and issues of worker well-being, quality of work etc, still I have now found two clear examples of attempts to somehow remove the power of labour unions to resists policies/actions that affect their members.


The first has been quite widely in the news, and rightly so. As the BBC reports here, the Greek police has broken up a strike of metro workers by force, relying on an ’emergency law’ for ‘peace-time emergencies.’ The metro workers were on strike against a scheme that would reduce their wages by up to 25%.


The second has not been reported on so far in English speaking media (at least aside from the specialized media I link to, I think), but according to this news, there is a new law in Spain which allows companies to reduce the wages of its personnel by 15% to stay competitive. At the Stora Enso paper mill in Barcelona workers went on strike, because they don’t accept these measures.


So there you have it. Two countries, two approaches to ‘enforce competitiveness.’ The Greek case uses police force to break a strike by public sector workers – a group that normally already has been late to achieve the right to strike. The Spanish case is in a way even more drastic, because it gives the employers a nation-wide blessing to cut wages without negotiation. I don’t blame the Spanish unions for being upset about this.


So what will we see next? I am waiting for similar news on Italy or Portugal. Or perhaps the Finnish business establishment will use the crisis to demand constraints to the right to strike in Finland.