Trade unions, collective bargaining and collective action beyond the EU and its Court of Justice. A tale of shrinking immunities and sparkling new competences from the land of the Lesser Depression
The purpose of this article is to assess the status of collective labour rights in the EU legal order, in the shadow of the current economic crisis. In sharp contrast to the key position granted to collective social rights in the New Deal programs which contributed to bring the US out of the Great Depression, today the EU appears to be less and less protective of workers’ collective rights. Following the infamous Laval and Viking judgments, and their “chilling effect” upon collective action, recent developments at EU level have undermined any legal certainty regarding trade unions’ rights. Against this judge-made framework the analysis is developed around two main themes. On the one hand, we set forth and criticise the interpretation both of trade unions as such and of their rights delivered by the CJEU, taking into account the recent judgments dealing with the right to collective bargaining. On the other, we analyse the evolutions of the relationship between fundamental social rights and economic freedoms. In particular, the assessment of the Commission’s proposal for a Regulation on the right to take collective action in the context of economic freedoms comes as an interim conclusion on the topic. The study proceeds to approach the issue in the light of the accession of the EU to the ECHR, with regard to the ECtHR recent jurisprudence which appears as more respectful of the right to bargain collectively and the right to strike.