The Autonomous Collective Bargaining Model of Labour Law in the EU Internal Market: Its Difficult Acceptance

Abstract

The ECJ judgments in the Viking and Laval cases constitute part of the sometimes so-called ‘Laval-quartet’ decisions; they involve relation between the right to take collective action including the right to strike and European fundamental economic freedoms such as freedom of establishment (now TFEU Art. 49) and freedom to provide services (now TFEU Art. 56). At first sight, Viking and Laval are notable because they recognize the fundamental right to take collective action by means of the general principles of Community law; no previous legally binding provisions in Community law had explicitly laid down such a right. Nevertheless a more striking feature of the decisions is that the Court subordinates the workers’ fundamental social right to economic freedoms, as labour lawyers correctly point out.

Instead of seeing this only as a fatal challenge to ‘Social Europe’, Ryosuke Amiya offers a unique perspective influenced by Christian Joerges: the EU’s ‘social’ element has two different dimensions, one involving individual social rights and the other involving collective rulemaking by the social partners. The latter is what is at stake in those judgments of the Court. In essence, Amiya concludes that the ordo-liberal concept that provides an unfavorable view of intermediary organizations like trade unions makes it harder to reconcile the role of collective rulemaking with the construction of the European internal market.

The following analysis is indeed based on that view, but at the same time it aims to propose a further and consistent clarification. It starts by clarifying through legal analysis the point at which the Court’s decisions in Viking and Laval must be criticized. It should also be pointed out that the European social dialogue defined in the Treaty suggests an inconsistency in the argument that there is generally difficulty in collective rulemaking in EU law. Thus it concludes that the notion of ‘collective rulemaking’ can be divided into two models: a corporatist model and an autonomous collective bargaining model. It seems that the EU has difficulty accepting the latter within the internal market project.