| Author (Corporate) | European Commission |
|---|---|
| Series Title | COM |
| Series Details | (2012) 130 final (21.3.12) |
| Publication Date | 21/03/2012 |
| Content Type | Policy-making |
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In its judgments in the Viking-Line and Laval case the Court of Justice for the first time recognised that the right to take collective action, including the right to strike, as a fundamental right forms an integral part of the general principles of EU law the observance of which the Court ensures. It also explicitly stated that since the European Union has not only an economic but also a social purpose, the rights under the provisions of the Treaty on the free movement of goods, persons, services and capital must be balanced against the objectives pursued by social policy, which include improved living and working conditions, proper social protection and dialogue between management and labour. Moreover, it equally acknowledged that the right to take collective action for the protection of workers constitutes a legitimate interest, which, in principle, justifies restrictions on the fundamental freedoms guaranteed by the Treaty. The protection of workers is thus one of the overriding reasons of public interest recognised by the Court. Despite this clarification, the Court rulings triggered a wide-ranging, intense debate on their consequences for the protection of the rights of posted workers, and more generally the extent to which trade unions can continue to protect workers’ rights in cross-border situations. In particular, they sparked controversy on the adequacy of existing EU rules to protect the rights of workers in the context of the freedom to provide services and the freedom of establishment. The Court of Justice cases referred to above exposed the fault lines that run between the Single Market and the social dimension in two ways. Firstly, the cases brought to light the need to ensure setting the right balance between the exercise of the right to take collective action by trade unions, including the right to strike, and the freedom of establishment and the freedom to provide services, economic freedoms enshrined in the Treaty. Secondly, they further highlighted the question whether the Posting of Workers Directive still provided an adequate basis for protecting workers’ rights given divergent social and employment conditions among Member States. In particular, its application and enforcement in practice were questioned. The two issues are closely linked, but require different strategies to balance Single Market and social requirements. As highlighted in the Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union, people must be able to effectively enjoy their rights enshrined in the Charter when they are in a situation governed by Union law. Clarification of these issues should also not be left to future litigation before the ECJ or national courts. Moreover, the right or freedom to strike should not be a mere slogan or a legal metaphor. Therefore, the present proposal is part of a package. Together with the proposal for an Enforcement Directive, it constitutes a targeted intervention to clarify the interaction between the exercise of social rights and the exercise of the freedom of establishment and to provide services enshrined in the Treaty within the EU in line with one of the Treaty’s key objectives, a ‘highly competitive social market economy’, without however reversing the case law of the Court. The present proposal aims to clarify the general principles and applicable rules at EU level with respect to the exercise of the fundamental right to take collective action within the context of the freedom to provide services and the freedom of establishment, including the need to reconcile them in practice in cross-border situations. Its scope covers not only the temporary posting of workers to another Member State for the cross-border provision of services but also any envisaged restructuring and/or relocation involving more than one Member State. |
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| Source Link | http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0130:FIN:EN:PDF |
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| Subject Categories | Employment and Social Affairs, Internal Markets |
| Countries / Regions | Europe |
