European Labour Law Journal

The Court of Justice of the European Union (ECJ) has made it clear that collective action taken by trade unions under certain circumstances might violate the freedom of services and the right of establishment under the Treaty (Articles 49 and 56 TFEU). However, the Court has not addressed the issue of which remedies are to be available against a trade union arranging such an ‘EU-unlawful’ collective action. This question was dealt with by the Swedish Labour Court (Arbetsdomstolen) in its final judgment in December 2009. The article discusses this judgment and presents an alternative understanding of the EU law requirements concerning remedies for EU-unlawful collective actions.

On the 21 March 2012 the European Commission adopted its proposal for a Regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services. Conceived as both a response and a clarification of the case law of the Court of Justice, the new Regulation should address the widely debated problem of the relationship between fundamental freedoms and fundamental social rights. The present contribution seeks to identify the objectives of the proposal, through a critical reading of its text and of the explanatory memorandum, to assess its potential effect. The analysis is developed around two main themes: the relationship of the proposal with the recent case law of the European Court of Human Rights regarding the right to strike, and its consistency with the doctrine developed by the CJEU in Viking and Laval.

EU Member States are obliged to protect all labourers who fall within the scope of EU labour law. The Member States are free, in principle, to extend the scope of protection by applying a worker concept which includes the economically dependent self-employed.

EU free movement principles restrict this freedom of the Member States to apply their own worker concepts. The ECJ makes this freedom almost illusory through a strict application of the subordination criterion for the definition of the concept of ‘worker’, as laid down in its Lawrie-Blum case law. If the ECJ would develop a positive and narrow definition of the concept of self-employed persons, then the Member States would retain the freedom which is necessary to extend adequate protection to the economically dependent self-employed, and to combat bogus self-employment. A few judgments of the ECJ contain materials for the development of such a definition of self-employed persons.

This paper¹ maps the labour law reforms in various European countries either triggered by the crisis or introduced using the crisis – falsely – as an excuse. Such reforms generally render existing labour law provisions more flexible and loosen minimum standards, shifting the emphasis to soft law (deregulation).

In some countries it consists only of piecemeal although significant deregulatory measures, while in others it involves far-reaching overhauls of the whole labour code. Furthermore, in several countries fundamental changes are being made to industrial relations structures and processes which might jeopardise social dialogue and collective bargaining there.

The authors critically address this large-scale deregulation of labour law currently taking place, in particular the lack of democratic foundations underlying the reforms and their negative impact on fundamental social rights and workers' protection.

At the beginning of April 2012, the Monti Government presented to the Italian Parliament a draft act concerning the “Reform of the labour market in a growth perspective” (hereafter the Reform). This is part of a comprehensive strategy, launched already in 2011 when the Government took office, to adapt Italian labour and social security law system to the challenges of the economic and debt crisis. At present, the Reform has been approved by the Senate, following a vote of confidence asked by the Government to speed up the procedure. The Reform is likely to approved as it is by the Lower Chamber following the same procedure. Therefore, waiting for the final approval of the act, it is already possible to draw a general and synthetic picture of the main axes of the Reform.