Trade unions and the right to strike The CJUE and the ECtHR - an apparent conflict (?)

Structure presentation The right to strike - national variety Constellation of sources ECtHR - Demir and Enerji CJEU - Laval and Viking Justification of the restrictions Is there a conflict? Conclusion

The right to strike - national variety The right to strike - what are we talking about? Right to strike v. Right to collective action «Flashmob affair» in Germany; There is a variety of national forms of strike and collective action Lock-out is permitted in Germany but expressly prohibited in Portugal; In France it is a subjective right of the workers; in Portugal it belongs in principle to the trade unions; Proportionality - Germany v. Portugal

Constellation of sources There is an overlapping constellation of sources recognising the right to strike at the international level: ICESCR - art. 8º ESC - art. 6º, n.º 4 ILO Convention n.º 87 - arts. 3º and 10º (in accordance with interpretation of CoE and CFA) CFREU - art. 28º CJEU - Viking, Laval and Rüffert ECtHR - Demir and Enerji (art. 11º ECHR)

ECtHR - Demir and Enerji Art. 11º ECHR - protection of the freedom of association Demir - art. 11º protected the right to collective bargaining Enerji - art. 11º protected the right to strike The ECtHR reversed its former case law (National Union of Belgian Police, Schmidt and Wilson), which only demanded the recognition of the right to be heard by trade unions. The ECtHR admitted however that the right to strike could be subject to restrictions.

CJEU - Laval/Viking The right to collective action, including strike, was recognised as a fundamental right capable of justifying a restriction to the fundamental freedoms. Laval - posted workers; the CJUE decided that the trade unions had gone beyond what was necessary to protect posted workers; Viking - transfer of a company seat abroad; the CJUE decided that trade unions had gone beyond what was necessary to protect the workers of the vessel;

In all of these cases, the ECtHR and the CJEU used an «integrated approach»; They drew upon the several sources of law outlined above, binding the States and considered it a part of Human Rights Law / EU Law.

Justification of the restrictions ECtHR CJEU Provided for by law; Legitimate; Necessary in a democratic society legitimate objective compatible with the Treaty; justified by overriding reasons of public interest; suitable for securing the attainment of the objective which it pursues; not go beyond what is necessary in order to attain it

Is there a conflict? Legal methodology Albeit they phrased it differently, both Courts drew upon the traditional «proportionality» test developed in Constitutional Law for the restriction of fundamental rights; Potential range of application The test devised by the EU is only applicable to member states when the strike action impacts on the common market; it is much narrower than the scope of the ECHR (which also applies to strictly internal situations);

3) Mutual recognition of obligations The preamble of the CFREU reaffirms (sic) the obligations derived from the ECHR and ESC, among others, in the interpretation of its provisions, which cannot be disregarded. The «proportionality» test devised by the ECtHR must take into account, in the «necessity» requirement, the internal market obligations derived from the EU treaties solely to member states (in its integrated approach).

Conclusion Conflict between ECtHR and CJEU more apparent than real. Albeit they phrased it differently, both courts drew upon the proportionality test developed by Constitutional Law; The potential scope of application between the case law is divergent; the CJEU only applies to situations impacting upon the functioning of the internal market; Both courts drew upon the international legal instruments to jurisprudentially integrated the right to strike in its case law; Both courts need to integrate the international obligations derived from the other in order to achieve coherence;