The EU and the Right to Strike: Regulation through the Back Door and Its Impact on Social Dialogue
King s Law Journal
The formal exclusion of the right to strike from the legislative competence of the European Union (EU) under the Treaty on the Functioning of the European Union stems from an understanding that such industrial relations matters were to remain the prerogative of the Member States in compliance with standards set by the International Labour Organisation (ILO). It is argued here that such an approach is manifestly inadequate, for at least two reasons. The first is the significance of the capacity
... ce of the capacity to take industrial action for European social dialogue, which needs to be protected at EU level if the ILO is unable to do so. The second is that the legitimacy of the EU has been bolstered by reference to social rights, and we might therefore expect the right to strike to be protected within this framework (as understood under the jurisprudence of ILO supervisory bodies). These are reasons for the positive protection of a right to strike, but this article also examines how the right to strike has, in fact, been compromised and arguably even negated by the pursuit of economic objectives by the EU. Extensive restrictions have been placed by judicial means on collective action which has potential cross-border effects, but also EU political and economic institutions have sought to prevent purely domestic action taken by trade unions which has the capacity to undermine certain EU macro-economic objectives regarding public expenditure and wage-setting. In this way, the notional exclusion of EU competence over freedom of association and the right to strike can be seen as a bind from which EU institutions have long escaped. What we have instead is extensive EU back door regulation of industrial action which significantly departs from what were widely accepted ILO standards. What is needed is more transparent debate over the activities of the EU in this sphere and their implications for social dialogue.