How to exorcize Europe from evil spirits ?

1. How to exorcize Europe from evil spirits ? F. Dorssemont Université Catholique de Louvain

2. A guidebook • Analyzing and criticizing the spectre • Don’t rub the (wrong) lamp!  adjusting strategies of Industrial Relations • Look for a more powerful spectre !  Find (conflicting) human rights in conflicting legal orders • How to rub the adequate lamp? • Post-scriptum

3. Analyzing and criticizing • Viking (re-location) and Laval (posting) affect the ability of trade unions to have recourse to collective bargaining and collective action to combat social dumping: human rights issue as well as an issue of regime competition • The Court had to overcome 3 barriers which could have avoided a conflict between fundamental freedoms and fundamental rights • Restricting the ambit of Laval and Viking : this is not a mandatory regulation on collective actions

4. Don’t rub the (wrong) lamp! • Avoid a protectionist discourse and a “secondary” action which is not preceded by a “primary” action (Viking -- Laval) • Avoid the impression of “binding” circulars • Seek cross-border alliances with trade unions • Teach non discrimination (Equal treatment of workers-No reverse discrimination of employers) rather than “british jobs for british people”

5. Look for a more powerful spectre ! • Laval and Viking : more than a clash of principles within the EC legal order ------------ a clash between legal orders Domestic constitutions clashing with EC legal order (Cf. Sweden) ILO and Council of Europe clashing with EC

6. Look for a more powerful spectre ! • ILO : FAC has always opposed teleological restrictions to strikes (e.g. solidarity strikes, Cf C 87 “furthering and defending the interests of workers”) - “The rights and obligations arising from agreementsconcluded before 1 January 1958 or, for “acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty.” 307 TEC

7. Look for a more powerful spectre ! • Council of Europe -European Social Charter : Article 6 § 2 and 4 : right to bargain collectively – right to take collective action • Proportionality does NOT restrict recourse to collective action. It restricts restrictions • Balancing demands and economic dammages violates trade union’s autonomy • Ultimum remedium violates trade union autonomy

8. Look for a more powerful spectre ! • European Convention on Human Rights : “the right to form and join trade union for the protection of his interests” (article 11 ECHR) • The right to bargain collectvively is an essential means to protect these interests (Demir and Baykara2008) • The right to strike is a corollary right which cannot be dissociated from the right to organize (Enerjy Yapi Yol Sen 2009) • Restrictions to the right to take collective action need to be assessed against Article 11 (Dilek and others2008)

9. How to rub the adequate lamp? • ILO : -Freedom of Association Committee : a complaint -observations of trade unions relating to Reports by Member States(C 87-C98) - not directed against the ECJ neither against the EC - directed against the State “implementing” ECJ case law - Cf. Article 307 TEC (Cf. C 87 1948 C 98 1949)

10. How to rub the adequate lamp? • Council of Europe : A) European Social Charter -collective complaints (against MS having ratified Protocol 1995 collective complaint procedure) (not : UK – yes : Sweden) -observations related to national reports - Not against EC or ECJ

11. B) European Convention on Human Rights -genuine judicial control -against all Contracting Parties -! “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties” (Article 6 new TEU) How to rub the adequate lamp?

12. Post-scriptum: don’t listen to lawyers