European Union law



European Union law imposes on member states a duty to promote collective bargaining (Article 6(2) of the European Social Charter). In addition, Article 28 of the Charter of Fundamental Rights of the European Union gives all workers the fundamental right to negotiate and conclude collective agreements and to take collective action, including strike action, to defend their interests.


However, the EU has been at best inconsistent in its approach to workers’ rights to strike, especially where more than one member state is involved. The European Court of Justice (ECJ) has handed down some very damaging rulings that limit the right to strike to defend terms and conditions when that right clashes with the fundamental EU freedoms – including the employer’s freedom to set up and do business in another member state. 



There are two well-known ECJ decisions: ITF & FSU v Viking Line ABP Case C-438/05 [2007] ECR 1-10779 (“Viking”) and Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet and others Case C-341/05 [2008] IRLR 160 (“Laval”). Both cases involved protest strikes against plans to replace workers from one EU country with lower-paid workers from another. 



In both rulings, the ECJ acknowledged the “fundamental” and “overriding public importance” of the right to strike, but then went on to place limits on that right. In summary, said the ECJ:


• the right to strike must be exercised in a manner that is “compatible” with other EU laws, including the employer’s fundamental rights to free movement of workers, goods, services and establishment;


• industrial action must have a legitimate aim with a “public interest” justification, such as the protection of workers and jobs under threat;


• the chosen form of industrial action must be suitable (i.e. proportionate to the aim, taking into account its effects); and


• before taking industrial action, unions must have exhausted all other available means of achieving the aim that would impact less dramatically on the employer’s EU freedoms.



These rulings impose very significant restrictions on unions, who face the threat of bankruptcy through an award of substantial damages if a court decides, after-the-event, that their chosen form of industrial action was “disproportionate” or “premature”. 



An attempt by the European Commission to address these issues through regulation, known as the draft Monti II Regulation, was abandoned in September 2012, after member states failed to agree.