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The EU and the Right to Strike: Regulation through the Back Door and Its Impact on Social Dialogue

The treatment of the right to strike by the European Union (EU) has long been problematic and contested. The Member States of the EU and its predecessors, the European Economic Community (EEC) and the European Community (EC), were wary of seeking to regulate industrial action. They understood freedom of association, the right to strike and the lock-out as lying within their own competence to be exercised as national governments according to socially embedded industrial relations systems, subject only to their other international obligations. Hence, the legislative competence of the EU on social policy under Article 153(5) of the Treaty on the Functioning of the European Union (TFEU) ‘shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs’. However, this formal exclusion has not been sensible or, indeed, ultimately respected by EU institutions. Two reasons (at least) are indicative of why the EU should actively protect a right to strike. One is that capacity to exercise a right to strike is determinative of the efficacy of trade unions’ participation in social dialogue, a mechanism on which the EU social policy has relied for several decades now. In this respect, it would seem that the EU has been tacitly reliant on national labour laws implementing International Labour Organization (ILO) standards regarding industrial action, both of which are now under threat. The second is that constructing a basis for legitimacy for the EU within a human rights tradition requires some recognition of the significance of a right to take strike action, acknowledgement of which arguably culminated in the text of Article 28 of the EU Charter of Fundamental Rights 2000, given legal effect by the Treaty of Lisbon on 1 December 2009. We might expect that ILO standards would inform the interpretation and application of that text, but there have already been significant deviations from those norms in the case law of the Court of Justice of the European Union (CJEU).