Industrial Action

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Industrial Action

Industrial action in the International Trade Union Rights Area

Definition of Industrial action provided by ITUC-CSI-IGB: Any form of action taken by a group of workers, a union or an employer during an industrial dispute to gain concessions from the other party, e.g. a strike, go-slow or an overtime ban, or a lockout on the part of the employer.

Models and Classification

Freedom of association is structured around two models: one single-tier and one two-tier. In the single-tier model, trade union activity is restricted to intervening in company life, whereas in the two-tier model they are allowed greater social participation and can play a part in forums outside the particular company or group of companies whose workers they represent.

A number of different systems of classifying collective bargaining, which have minor differences, have been suggested. A more general proposal only includes two models—one of a contractual nature and the other of a constitutional one—whereas a more specific proposal depicts three30: (1) a contractual model with no general rules according to which industrial relations are articulated through collective agreements by means of which industrial action, including the right to strike, is also regulated; examples of this model are Germany, Austria and Belgium; (2) in contrast, other states establish these rights constitutionally without major legislative developments, as is the case in Denmark and France; and (3) other nations, like Ireland and the Czech Republic, have a legal approach. Models (2) and (3) in fact comprise the constitutional model of the more general proposal, and many states combine both approaches, i.e., in addition to protecting these freedoms and rights constitutionally, nations such as Finland, Hungary, Lithuania, Portugal, Spain and Sweden legally regulate the conditions of their exercise.

All in all, the key difference between countries adopting either a contractual or a constitutional model is based on the fact that some nations have not undertaken a comprehensive legal development of industrial relations at national level, instead entrusting their exercise to self-regulation, i.e., relying on stakeholder involvement to resolve the conflicts of interest at stake, while other countries do have statutory provision for the conditions under which collective bargaining is conducted and industrial action undertaken.

Different approaches arise from these distinct models, in particular to the right to strike.31 In the non-interventionist model, both industrial action and the conditions of its exercise are left in the hands of the parties to the conflict, and their development is largely determined by case law. For example, in Germany the right to call a strike is granted exclusively to unions, and the conditions under which strike action can be declared, such as whether a vote is required, are regulated by the union’s articles of association. In Sweden, this is deemed a collective right that can be exercised by trade unions, employers and employers’ associations.

The French Constitution, for its part, conceives this to be an individual right, although it can only be exercised collectively, leaving the technicalities to case law. In Denmark, strikes can only be called by unions but must be previously approved by 75 % of their members; in any event, giving employers prior notice is mandatory. These peculiarities are also legally regulated in other states such as Spain: in addition to Article 28 of the Spanish Constitution, the key piece of regulation is Royal Decree No. 17/1977, which covers the peculiarities of industrial action and allows not only unions but also groups of workers or the works council in a company to call strikes restricted to a particular business sector, while only unions are allowed to call general strikes; the company and the Ministry of Labour must be given prior notice, and negotiating is mandatory from that moment on.

This legal diversity has led in turn to different interpretations of the notion of industrial action depending on the legal system of reference.32 Germany and Austria, for example, consider the right to strike a corollary of the right to collective bargaining, as a result of which the former can only be exercised to improve the living and working conditions of workers and not for other purposes, such as the political and socio-economic demands accepted in Spain. Collective action can take the form of different initiatives, including boycotts, occupying the workplace, stoppages and go-slows, the legality of which varies from country to country. The most questionable actions are boycotts and occupying the workplace, which is not allowed, for example, in Germany or the UK. In contrast, other countries such as Holland, Spain and Italy give broad coverage to measures other than strikes themselves.

The most relevant differences for the purposes of organising cross-border collective action concern the admissibility of solidarity actions. Apart from in the UK, there is no legal regulation in this area as these measures are not directed against employers themselves. As their name suggests, they are shows of solidarity among workers in the same sector. In this sense, they may also be a kind of secondary action to the extent that they are organised in support of a primary action, namely, industrial action truly undertaken against an employer with a view to improving workers’ living and working conditions. Nevertheless, it should be noted that sympathy or solidarity actions do not always depend on primary actions since workers in whose support solidarity is exercised may not be able to organise a strike.

Solidarity actions are not allowed in the UK,34 where shared professional interests are not considered sufficient to free workers from fulfilling their contractual obligations. They have been the object of restrictive interpretation in France35 and Germany,36 while countries such as Belgium, Spain, Finland, Holland and Italy encourage a much broader interpretation and Sweden even more so. In this context, it is worth recalling that ‘a general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action provided that the initial strike they are supporting is itself legal’,37 according to the ILO Committee on Freedom of Association.

Solidarity and sympathy actions have an important role in the maritime sector, usually adopting the form of boycotts directed against shipowners who refuse to sign collective agreements or pay wages or who are bound by a standard collective agreement in force yet apply less favourable working conditions when hiring seafarers on an individual basis.38 In these cases. other workers such as dockers can show their sympathy with the crew by refusing to provide services to shipowners.

In fact, these actions play a key part in the ITF-launched campaign against flags of convenience; the ITF thus became the first union association to provide an organised response against the high mobility of capital.39 However, and as a consequence of the legal divergence mentioned above, this campaign has experienced serious setbacks in court,40 in particular in England and also in the Netherlands.

The ITF headquarters are in London, and so shipowners have often resorted to this forum to apply for injunctions against planned primary or secondary industrial action by a union located in a different country, to claim damages arising from industrial action undertaken in another country or to request the nullifying of a collective agreement signed as a result of industrial action also carried out in a country other than the UK, on the basis that such action may amount to duress.42 The English courts’ response has been progressively restrictive, limiting the possibility of undertaking solidarity initiatives, through introducing legislation confining industrial action to cases in which workers act against their own employer, in addition to imposing procedural requirements that an organisation such as the IFT cannot meet, including any action needing to be approved by a given number of members.

There have been some noteworthy cases in which solidarity action was legal under the law of the country where it was undertaken, but not according to English law in view of the above restrictions, which in turn entails some assessment of the validity of the collective bargaining agreement concluded as a result of the action. One such case is the Dimskal case44 against the ITF, where the subject matter was the declaration of annulment of a binding collective agreement that had been concluded after the intervention of Swedish trade unions in Sweden, where the contested action had been considered legal; the English courts found that the collective agreement was governed by English law, which led to its being declared invalid once the duress suffered by the company as a result of the sympathy action had been proved. Had the British courts applied Swedish law as the law governing the industrial action, the outcome of the case would have been totally different as Swedish law deemed the sympathy action to be lawful. In contrast, the finding of duress on the ground that such actions are illegal according to English law was a key element in this case.

Occupying the workplace as a form of industrial action also has special significance in the shipping and fishing industries, as it is about taking control of the vessel. The Spanish Supreme Court has ruled in three cases involving both Spanish and foreign seafarers employed by Spanish shipowners on board vessels flying the Spanish flag, who decided to go on strike in response to a call from their union.45 In all three cases, the crew remained on board the vessel, which was understood to be occupation of the workplace.

The Supreme Court’s stance was consistent with its previous jurisprudence in this sphere; it considers occupations lawful as long as they are peaceful, for which reason the authorities can only evict seafarers from the vessel if their occupation might cause disproportionate damage to other constitutional rights, such as property rights. The Supreme Court particularly emphasised that non-acceptance of the occupation would deny seafarers the opportunity to exercise their right to strike. In addition, the court highlighted the fact that the ship is indeed their place of accommodation. As a matter of fact, strikes on board generally involve occupying the ship, among other reasons because this kind of action helps workers avoid the risk of being replaced by another crew.

Occupation of the workplace is generally allowed, with some restrictions,47 i.e., provided that the activity of workers who choose not to go on strike is not disrupted and the production process is therefore not disturbed or interrupted. However, seafarers are a case apart, and in the light of this the Spanish Supreme Court’s conclusions on the ship’s condition as the centre of seafarers’ lives takes on a whole new dimension.

The Spanish Supreme Court is also to address the issue of what happens with shipowners’ obligation to provide the crew with food during industrial action, i.e., whether non-provision might be comparable to non-payment of wages during strikes: this obligation is characterised as secondary in individual employment contracts but cannot be suspended during strikes for obvious reasons.48 Its link with issues affecting health and hygiene on board makes it deserving of different treatment, reinforced by the fact that the obligations to maintain security and safety on board vessels are binding on seafarers and fishermen and hence are not suspended during strikes.

Piñeiro L.C. (2015) International Maritime Labour Law. Hamburg Studies on Maritime Affairs (International Max Planck Research School for Maritime Affairs at the University of Hamburg), vol 34. Springer, Berlin, Heidelberg

Industrial Action and EU Market Freedoms

The Root Causes of the Conflict

The right to take industrial action is not unlimited; on the contrary, it is likely to be restricted for the sake of other collective interests. The legal or illegal nature of industrial action is determined on the basis of this rationale and within the boundaries established in accordance with the regulatory models already outlined.50 Industrial action is usually understood to be the last resort in attempts to reach a collective agreement; at the same time, the need for this type of compromise means that it is not allowed by peace obligations while a collective agreement is in force or that industrial action might be suspended if the parties agree to take their differences to arbitration.

The regulation of industrial action, including the right to strike, is based on a thorough assessment of the interests and rights at stake, and at the moment this assessment is undertaken only at national level, as already mentioned. The opening up of borders and the globalisation of markets for goods, services and capital lie behind forms of industrial action going beyond the borders of the territory for which the assessment was originally undertaken; the actions therefore have a cross-border impact, in the same way business operations do, so their lawfulness is subject to different legal systems. When industrial action occurs in the framework of an economically integrated area, the prevailing rules there can also determine the legality or otherwise of industrial action. The question is especially relevant in the context of the European Union, in particular with reference to the way that EU market freedoms interact with the right to strike. Many rules and a great deal of case law and literature have already been produced on the topic, and given their relevance to maritime trade they will be described in the following section.

Because of the way the European Union has developed, the first contradictions arising over the right to industrial action were related to the free movement of workers and goods.51 Companies can try to alleviate the consequences of strikes by hiring foreign workers to replace strikers; manoeuvres of this type have normally received due response from domestic law, usually in favour of the right to strike and prohibiting this type of employment. Conversely, the European Union has responded far more directly when the free movement of goods has been at stake since this involves cross-border transfer and strikes in sectors such as transport are likely to drastically restrict this freedom.

Following the farmers’ riots in France and the CJEU judgment of 9 December 1997,52 the European Union enacted Council Regulation (EC) No. 2679/98 of 7 December 1998 on the functioning of the domestic market in relation to the free movement of goods among the member states.53 As its name indicates, the Monti Regulation, as it is also known, enables governments to take measures against actions that may severely disrupt or hamper the free movement of goods, whether actively or by omission. Omissions are defined in Article 1(2) as cases ‘when the competent authorities of a Member state, in the presence of an obstacle caused by actions taken by private individuals, fail to take all necessary and proportionate measures within their powers with a view to removing the obstacle and ensuring the free movement of goods in their territory’. If states do not act to restrict the untrammelled activities of individuals, the result can be a complaint from the European Commission for violating the principle of free movement of goods.

The Monti Regulation’s innovation lies in the fact that it expressly refers to the right to strike for the purpose of excluding it from the range of ‘acts or omissions’ likely to disturb or hinder the free movement of goods. Article 2 specifically states that the Regulation’s provisions cannot be interpreted ‘as affecting in any way the exercise of fundamental rights as recognised in Member states, including the right or freedom to strike’, so that ‘these rights may also include the right or freedom to take other actions covered by the specific industrial relations systems in Member states’. These provisions therefore aim to complement international recognition of the right to industrial action, so that market freedoms cannot simply prevail over these fundamental rights.

The Outbreak of the Conflict: Viking, Laval, Rüffert and Commission v. Luxembourg

Following the Monti Regulation and the CJEU judgment referred to above, it was understood that the foundations for market freedoms to coexist with the right to strike had been laid in the European Union. Nevertheless, subsequent CJEU interventions linked with the freedom to provide services and freedom of establishment have certainly challenged the guidelines for the free movement of goods, which did seem to work.

The first and most important decision for our purposes is the Viking judgment on 11 December 2007,54 as the member states’ freedom to reflag was at stake. The case arose as a consequence of the Finnish shipping company Viking Line voicing its intention to replace the Finnish flag flown by the ferry ‘Rosella’ with a different flag that would enable the company to scale down the labour costs to which it was obliged by a collective agreement signed with the Finnish Seamen’s Union (FSU). The ferry sailed between Tallinn (Estonia) and Helsinki (Finland), and the company intended to reflag it either in Estonia or Norway, as both nations allowed crews to be employed on lower wages.
Once notified of Viking’s intentions, the Finnish union expressed its opposition to the reflagging, or at least to the termination of the Finnish collective agreement and the possible redundancies involved. Viking rejected its claims, and the FSU was driven to undertake industrial action along ITF policy lines, of which it was a member. As seen above, the key instrument among the range of policies aimed at counteracting flags of convenience is one according to which only unions in the country where a vessel’s beneficial owner is based are authorised to conclude collective agreements relating to the vessel and its crew. As a result, even though Viking decided to reflag the vessel, the FSU would still be the only union with exclusive authority to negotiate working conditions on board the ‘Rosella’. The ITF was duly informed of the initiation of industrial action by the FSU and consequently sent a circular to all its union partners advising them to desist from working with Viking. ITF’s intervention was followed by a series of actions that culminated in the company committing itself not to leave Finland.

However, the case was given a new twist in 2004 when Estonia joined the European Union: Viking went back to its original decision and decided to sue both the FSU and the ITF in London, the latter’s base, for infringement of the freedom of establishment under Article 43 EC, now 49 of the TFEU, as the circular issued by the ITF and directed at all its members was still in force, thereby depriving the company of the benefits granted by the freedom of establishment such as reduced labour costs as a consequence of reflagging the vessel.

If the Viking case deals with freedom of establishment, the Laval and Rüffert cases concern the freedom to provide services under Articles 12 and 49 TEC, now 18 and 56 of the TFEU Treaty; both judgments deal with the posting of workers covered by Directive 96/71/EC, which includes fishermen but not seafarers, as already noted. Laval un Partneri was a Riga-based company (Latvia). In 2004, it moved to Sweden to carry out various construction works, among which was the building of a school in the city of Vaxholm. The work was done by Latvian workers subject to collective agreements signed in Latvia. Once work began, the Swedish trade unions Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avdelning 1 and Byggettan contacted Laval to sign the Swedish collective agreement for construction. Various disagreements immediately arose, stemming from the peculiarities of the Swedish legal system according to which wages and other working conditions can only be negotiated after the collective agreement has been signed. Laval refused to sign it, as there was no wages agreement, and their refusal sparked off industrial action, including solidarity action by the electricians’ union Svenska Elektrikerförbundet. Laval ended up losing its contracts in Sweden as a result of these actions and became insolvent, resorting to the Swedish courts to ask them to declare the unions’ industrial action illegal, to remedy the infringement of the freedom to provide services, and for compensation for the damage inflicted.

The Rüffert case pitted the German state of Lower Saxony against Objekt und Bauregie, a German company that had won the tender put out by Lower Saxony for the building of a prison. The contract concluded by the two parties included provisions on working conditions, which specified that they had to be granted in accordance with the collective agreements in force at the place where the work was carried out. Objekt und Bauregie outsourced to a Polish company, and during the course of the work it emerged that the company was paying the Polish workers lower wages than were due to them according to the collective agreements. Under the circumstances, Lower Saxony wanted to terminate the contract with Objekt und Bauregie and required payment of the penalty scheduled for breach of conditions. In this context, the seized German court asked the CJEU whether the contractual imposition of a collective agreement establishing a salary that exceeds the minimum to which the Directive 96/71/EC refers infringes the freedom to provide services as granted by Article 49 TEC.

Also apropos Directive 96/71/EC, the CJEU issued a judgment on 19 June 2009 assessing the adequacy of its transposition into Luxembourg law.57 The law interpreted the notion of national public policy broadly, thereby guaranteeing a series of labour rights contained in various legal and administrative sources, as well as in collective agreements. In line with Rüffert and Laval, the CJEU reaffirmed the restrictive nature of public order, particularly the idea that only the rights listed in Article 3(1) of the Directive can be imposed on foreign companies. In the case in question, the obligation imposed by the Grand Duchy on foreign companies to appoint an ad hoc agent resident in Luxembourg with a view to verifying compliance with Luxembourg working conditions by companies based in other member states was specifically rejected.

The CJEU response in all these cases accepts that individuals may also violate market freedoms,58 and it is therefore possible that other individuals will seek redress against them in addition to declaring an infringement. This gives rise to a conflict rule that will be analysed in a later section of this chapter. Over and above this assertion, it is worth remarking at this point that the CJEU considers that the exercise of the right to strike and other industrial actions may indeed infringe both freedom of establishment and the freedom to provide services within the European Union, therefore rejecting the possibility that such action may be among the cases that justify the restricting of these freedoms, in a similar manner to the Monti Regulation. The CJEU is thus rejecting the possibility of resorting to industrial action to improve the living and working conditions of cross-border employees on the ground that companies’ interests in participating in other markets by taking advantage of the benefits provided by differences between legal systems, and more precisely by differences in labour costs, should be encouraged. In other words, the CJEU seems to support the race to the bottom within the internal market.59 On the other hand, it does not take into account the fact that its case law puts companies that sign and stick to collective agreements at competitive disadvantage vis-à-vis companies that refuse to do so.

The arguments put forward by the defendant unions and various governments in order to exclude industrial action from the range of measures to protect the freedoms of establishment and provision of services were rejected on the ground that ‘although the right to take collective action, including the right to strike, must therefore be recognised as a fundamental right which forms an integral part of the general principles of Community law the observance of which the Court ensures, the exercise of that right may none the less be subject to certain restrictions. As Article 28 of the Charter of Fundamental Rights of the European Union reaffirms, those rights are to be protected in accordance with Community law and national law and practices’.

Under the umbrella of these potential restrictions, the CJEU sets aside the objection raised by the defendant unions on the ground that industrial action in itself involves a violation of the freedoms of movement; a decision on whether it is allowed or not is therefore needed. In addition, industrial action is known to be part of the body of fundamental rights and cannot therefore be opposed on the ground that it clashes with market freedoms. The CJEU decision rejected this approach by focusing on the principle of proportionality, i.e., on the need to determine when restricting the freedoms of establishment and provision of services almost inevitably stemming from industrial action is necessary, proportionate and justified to the purpose intended.

The question of whether the restrictions on the freedoms in question caused by industrial action have a legitimate objective compatible with the TFEU and can be justified by overriding reasons of general interest must therefore be examined.62 While recognising that worker protection may meet these requirements,63 the Court demands that industrial action be filtered through the screen of the principle of proportionality, so the seized court must decide whether it is necessary for the purpose intended—to ensure the protection of workers—instituting the use of an objective test: whether jobs and working conditions are being compromised or seriously threatened or not in the case in question.64 Once this test has been passed, ‘it would then have to ascertain whether the collective action initiated by FSU is suitable for ensuring the achievement of the objective pursued and does not go beyond what is necessary to attain that objective’,65 which also implies that industrial action is deemed a last resort action.

The CJEU itself applies the test to ITF policy, and even though it agrees that it certainly seeks to protect workers’ interests, it does not consider the policy adopted by ITF to fight against flags of convenience a proportionate measure: ‘in the context of its policy of combating the use of flags of convenience, ITF is required, when asked by one of its members, to initiate solidarity action against the beneficial owner of a vessel which is registered in a State other than that of which that owner is a national, irrespective of whether or not that owner’s exercise of its right of freedom of establishment is liable to have a harmful effect on the work or conditions of employment of its employees.

Therefore, as Viking argued during the hearing without being contradicted by ITF in that regard, the policy of reserving the right of collective negotiations to trade unions of the State of which the beneficial owner of a vessel is a national is also applicable where the vessel is registered in a State which guarantees workers a higher level of social protection than they would enjoy in the first State’.66 Exactly what the Court intended to convey in this section is unclear,67 but it is necessary to point out that it seriously compromises the viability of ITF strategy within the European Area of Justice without providing solid arguments to justify its restriction, given that it can be essential for worker protection.

The reasoning in Laval and Rüffert is similar but is shaped by the applicability of Directive 96/71/EC, which leads the Court to the predictable conclusion in this context that ‘without prejudice to the right of undertakings established in other Member states to sign of their own accord a collective labour agreement in the host Member state, in particular in the context of a commitment made to their own posted staff, the terms of which might be more favourable – the level of protection which must be guaranteed to workers posted to the territory of the host Member state is limited, in principle, to that provided for in Article 3(1), first subparagraph, (a) to (g) of Directive 96/71, unless, pursuant to the law or collective agreements in the Member state of origin, those workers already enjoy more favourable terms and conditions of employment as regards the matters referred to in that provision’.69 In short, when claims pursued by social partners exceed the minimum requirements set out by the Directive, any kind of industrial action they undertake will always infringe the freedom to provide services.70


The position advocated by the CJEU puts collective bargaining in a very difficult position. A company can simply transfer its operations to the other side of the border to escape the obligations imposed by the domestic collective bargaining framework, a situation that seems to lie behind the Laval case. Laval is a Latvian company that owned 100 % of the shares in a Swedish company, which then subcontracted Laval to perform the work procured in Sweden.71 At European level, the lack of regulation of self-governance mechanisms such as the right to strike is a major obstacle for the resolution of this kind of situation, which can only be currently addressed at state level. Even in cases where industrial action is lawful according to the relevant legal system, CJEU case law requires the principle of proportionality to be strictly applied, on pain of incurring liability for infringing the freedoms of provision of services and establishment.72 Thus, precedence is given to market freedoms over social rights, not only severely restricting the social partners’ capacity to act but also thwarting policies linked to corporate social responsibility, such as the introduction of contractual clauses requiring certain collective agreements to be applied, either the collective agreements in force at the place the activity is carried out, as was the case in Rüffert,73 or an ITF agreement.

The rationale should be precisely the opposite: given the fundamental nature of the right to collective bargaining and to strike, it is in fact the restricting of these rights that requires careful justification.74 A brief overview of the different international instruments dealing with these rights clearly shows that they are not completely unlimited rights, but they can only be restricted in cases where health, public order or other equally relevant factors are at stake.75 Apart from the peace obligations during the life of collective agreements and the use of arbitration, such limits are certainly modulated through the imposition of minimum services, which can only cancel out the impact of a strike in cases involving the provision of essential services. Granting preference to market freedoms over these considerations is equivalent to eviscerating these fundamental rights, therefore making it even clearer how urgently EU regulation in this area is needed, running—at least—in parallel with the development of the manifold financial regulations and instruments established for the operations of the domestic market.

Evidence of the magnitude of the attack on collective bargaining rights and industrial action was provided by the European Parliament’s reaction in the Resolution of 22 October 2008 on challenges to collective agreements in the EU,77 which expressly underlined that ‘freedom to provide services is not superior to the fundamental rights contained in the Charter of Fundamental Rights of the European Union and in particular the right of trade unions to take industrial action, in particular since this is a constitutional right in several Member states. It therefore emphasizes that the abovementioned CJEU rulings in Rüffert, Laval and Viking demonstrate that it is necessary to clarify that economic freedoms as established in the Treaties should be interpreted in such a way as not to infringe upon the exercise of fundamental social rights as recognised in member states and by Community law, including the right to negotiate, conclude and enforce collective agreements and to take collective action, and not as infringing the autonomy of social partners when exercising these fundamental rights in pursuit of social interests and the protection of workers’ (at No. 5).

In the same Resolution the European Parliament calls for a more balanced treatment of the relationship between market freedoms and social rights while focusing on a potential revision of Directive 96/71/EC. The ending of the transposition period of Directive 2006/123/EC on services in the domestic market78 has given a new dimension to the case law reported here and has led the Commission to propose a Council 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,79 seeking to establish a clause in this area similar to the Monti Clause included in Regulation No. 2679/98. The fact is, though, that Article 2 of the proposal is nothing more than simply an emphatic statement, so is thus unable to resolve the dilemma posed by CJEU case law: ‘The exercise of the freedom of establishment and the freedom to provide services enshrined in the Treaty shall respect the fundamental right to take collective action, including the right or freedom to strike, and conversely, the exercise of the fundamental right to take collective action, including the right or freedom to strike, shall respect these economic freedoms’.

The Commission’s proposal has been rejected by several member states.80 Among the most relevant objections is that it infringes the principle of subsidiarity since in accordance with Article 153(5) of the TFEU, the European Union cannot deal with such issues as they are a matter for individual member states. Another especially noteworthy objection is that it subverts the relationship between constitutionally enshrined rights in some EU member states such as Spain, where the right to collective bargaining and the right to strike are laid down in Article 28 of the Spanish Constitution, enjoying a protection that was not conferred on the economic rights set up in Article 38.
In a similar vein, it is crucial to emphasise the major step taken by the ECtHR to protect the right to industrial action. Demir and Baykara is a leading judgment in assessing the right to strike as a corollary of the right to collective bargaining, both linked to the freedom of association protected by Article 11 ECHR. Paragraph two of this provision notes that ‘no restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others’, in line with rights otherwise proclaimed in the European Social Charter and ILO Convention No. 87.

It has already been pointed out that the CJEU interpretation imposes a significant restriction on these social rights by granting priority to the freedoms of provision of services and establishment. The doctrine contained in the Demir and Baykara judgment requires a reassessment of the scope of this interpretation, taking into account not only EU accession to the ECHR but also the mandate contained in Article 52(3) of the European Charter of Fundamental Rights: ‘In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection’.

EU accession to the ECHR reinforces the meaning of this provision, and in this context recent ECtHR case law becomes even more relevant by encouraging a shift in the EU mindset, i.e., this is not about assessing when industrial action is proportionate and therefore compatible with market freedoms, but the other way around: the question that needs to be answered is when market freedoms may justify restrictions on the exercise of fundamental social rights.82 After all, the Viking and Laval doctrine is based on Article 28 of the European Charter of Fundamental Rights,83 and, accordingly, the interpretation of this provision must necessarily be adapted to the ECHR’s evolution.

There has been no express ECtHR pronouncement on this interaction so far, but some have been issued by other supervisory bodies such as the Committee on Freedom of Association operating within the ILO, which has condemned the Australian Trade Practices Act’s interference with the right to undertake solidarity actions under the ITF campaign against flags of convenience, as well as the Act’s implementation by the Australian Competition and Consumer Commission. The Committee rejected the allegation of interference with trade and commerce and threat to cause significant damage to the economy as sufficient reasons to restrict strike action.84 Given the ongoing dialogue between the ECHR and this body, as well as with those responsible for overseeing the European Social Charter,85 this is the path ECtHR doctrine has chosen to take, and European legislation should join it on its journey.

Piñeiro L.C. (2015) International Maritime Labour Law. Hamburg Studies on Maritime Affairs (International Max Planck Research School for Maritime Affairs at the University of Hamburg), vol 34. Springer, Berlin, Heidelberg


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