The European Court of Justice, Labour Law and ILO Standards

Two questions are addressed in this paper: (1) how much does, or will, the ECJ in exercising its jurisdiction in the field of labour law look to international standards; (2) how far does, or will, the ECJ seek to go further or provide less? The paper reviews the sources from which the ECJ has drawn in exercising its labour law jurisdiction include the Treaties, EU secondary legislation and the general principles of the EU legal order. The Preamble to the Community Charter of the Fundamental Social Rights of Workers of 1989 refers to” inspiration... drawn from the Conventions of the ILO”. The Preamble to the EU Charter of Fundamental Rights 2000 reaffirms “...rights as they result, in particular, from the... international obligations common to the Member States”. The absence of an explicit reference in the EU Charter to ILO labour standards is notable. The European Court of Justice states that fundamental rights form an integral part of the general principles of law and international treaties can supply guidelines. The ECJ finally cited the EU Charter in Case C-540/03, European Parliament v. Council, decided 27 June 2006. While not legally binding itself, the Charter reaffirms rights which are legally binding due to their provenance from other sources which are recognised by Community law as legally binding sources, including “international obligations common to the Member States”, of which ILO Conventions are a prime example. In Case C438/05, Viking, Advocate General Maduro concluded: “...the rights to associate and to collective action are of a fundamental character within the Community legal order, as the Charter of Fundamental Rights of the European Union reaffirms”. In Case C341/05, Laval, Advocate General Mengozzi, cites Article 28 of the EU Charter and concludes that “the right to resort to collective action to defend trade union members’ interests is a fundamental right. It is... a general principle of Community law, within the meaning of Article 6(2) EU. That right must therefore be protected in the Community”. Two examples to illustrate the use of ILO standards in EU secondary legislation: the Directives on public procurement, and the Services Directive. On the matter of substance, the potential use of ILO standards as sources of EU law may be illustrated two recent developments in the USA and Canada. In the USA, an agreement was reached in May 2007 between the administration of President George Bush and the Congress on bilateral trade agreements to include the

obligations of the ILO's 1998 Declaration on the Fundamental Principles and Rights at Work.
In Canada, on 8 June 2007 the Supreme Court of Canada declared that the protection of the freedom of association guaranteed by section 2(d) of the Canadian Charter of Rights and Freedoms includes a procedural right to collective bargaining. It held that "collective bargaining is an integral component of freedom of association in international law, which may inform the interpretation of Charter guarantees". It cites ILO Convention No. 87, ratified by Canada, as a principle that Canada has committed itself to uphold". It also cites interpretations by the ILO's Committee on Freedom of Association, Committee of Experts and Commissions of Inquiry Freedom of association in trade unions has acquired constitutional status in some Member States. In interpreting the right at EU level, the ECJ could draw upon a range of sources, including international law, in particular, ILO Conventions, consistent with the evolving context of the EU from a purely economic Community establishing a common market to a European Union with a social policy aimed at protecting workers employed in the common market who are also citizens of the Union enjoying fundamental rights. The acquis communautaire social comprises five principles of what may be called ordre communautaire social: (i) the ILO principle that "labour is not a commodity"; (ii) the Community's social policy of improved living and working conditions; (iii) respect for fundamental rights of workers; (iv) a central role to social dialogue at EU and national levels; (v) equal treatment of all workers without discrimination based on nationality.
Fundamental rights of labour in the EU legal order are at stake in Laval and Viking. The Opinions of the Advocates General in these cases propose different solutions. The ECJ may accommodate these approaches in a solution consistent with ILO standards comprising the following five steps.
In Viking, Advocate General Maduro takes the position that in cases of relocation, collective action is permitted to combat social dumping provided it is taken before the relocation occurs. Relocation is almost invariably accompanied by collective dismissals of workers. The ECJ in Case C-188/03, Junk, declared unequivocally that any decision to collectively dismiss workers can only be taken after the completion of the process of information and consultation. Relocation between Member States will often be the action of multinational enterprises. European works councils (EWCs) have successfully taken legal action to block decisions by multinationals where the enterprise failed to comply with the requirements of the EWCs directive. The conclusion is that collective action should always be possible as any decisions affecting the workforce cannot be taken until the information and consultation requirements have been complied with.
For Advocate General Mengozzi in Laval, the criterion is proportionality. The criterion of proportionality should be whether the employer had complied with the EU obligation to inform and consult prior to any decision. Failure to do so would automatically make any resulting collective action proportionate. This is a specifically EU criterion of proportionality based on the acquis communautaire of EU Directives requiring information and consultation, Article 27 of the EU Charter (the fundamental right to information and consultation) and the transnational nature of enterprises and of collective action in the EU. If complied with, it contributes to avoiding the negative consequences of both litigation (seeking remedies in the form of injunctions from national courts to enforce the obligation to inform and consult) and collective industrial action by workers. It is a solution which reconciles respect for the international labour law standards of the ILO with the specific context of the acquis communautaire social.
The ECJ's jurisdiction in labour law offers the prospect of consolidating the EU as a major player in the emerging legal order of globalisation. The EU Charter's labour rights may become a model for international labour law.

II. Introduction: The questions to be addressed
The scope and substance of the jurisdiction of the European Court of Justice (ECJ) in the field of labour law depends on the sources of law available to it to use. This paper addresses two questions.
First, as to scope: do the sources of the ECJ's jurisdiction on labour law allow for consideration of ILO standards, and have the sources of law available and used in the past changed so as to embrace ILO standards?
Secondly, as to substance: is the nature of the labour law of the ILO compatible with the use to which it may be put in the context of the EU and its labour law, and are there changes elsewhere in the world which indicate a greater role for ILO standards in the labour law jurisdiction of the ECJ?
During and after providing some outline answers to these questions, I will seek to illustrate them by reference to two cases currently before the ECJ: Viking 1 and Laval. 2 The basic issue is: how much does, or will, the ECJ in exercising its jurisdiction in the field of labour law look to international standards, and how far does, or will, the ECJ seek to deviate from them, either by going further or by providing less?

III. Scope: The sources of the ECJ's jurisdiction in the field of labour law
The sources from which the ECJ has drawn in exercising its labour law jurisdiction include the Treaties, EU secondary legislation and the general principles of the EU legal order.

Treaties
The social and labour policy of the European Economic Community as laid down in the Treaty of Rome of 1957 was influenced by ILO advisers. A preceding report of ILO experts 3 "recommended that there was no need for an interventionist social dimension for the proposed common market, save for certain measures against 'unfair competition'". 4 The result was Article 117 of the Treaty of Rome 1957. 5 Far from looking to established international labour standards, in apparent order of priority, the desired improvement was to ensue from harmonisation of Member States' social systems, to result from both autonomous functioning of the common market and approximation of legal provisions.
Nonetheless, there was also room for the activation of "procedures provided for in this Treaty". Article 118 of the Treaty stated that the Commission "shall have the task of promoting close cooperation between Member States in the social field, particularly in matters related to… labour law and working conditions". However, initiatives by the Commission and the European Parliament encountered resistance from several governments and "it was not until 1971 that proposals began to emerge for a more systematic approach to European social policy". 6 The breakthrough came at the summit of the Heads of the Member States in Paris in October 1972, which in turn led the Commission to prepare a Social Action Programme 5 "Member States agree upon the need to promote improved working conditions and an improved standard of living for workers, so as to make possible their harmonisation while the improvement is being maintained. They believe that such a development will ensue not only from the functioning of the common market, which will favour the harmonisation of social systems, but also from the procedures provided for in this Treaty and from the approximation of provisions laid down by law, regulation or administrative action". 6 L. "…this provision forms part of the social objectives of the Community, which is not merely an economic union, but is at the same time intended, by common action, to ensure social progress and seek the constant improvement of the living and working conditions of their peoples, as is emphasised by the Preamble to the Treaty".
The distance from international labour standards, if not explicitly those of the ILO, was narrowed by the Preamble of the Single European Act of 1986, which declared that the Community was: "Determined to work together to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR] and the European Social Charter [ESC], notably freedom, equality and social justice".
A first link to the ILO was established in the Preamble to the Community Charter of the Fundamental Social Rights of Workers of 1989, which declared: "Whereas inspiration should be drawn from the Conventions of the International Labour Organisation and from the European Social Charter of the Council of Europe". 9 Despite the nonlegally binding nature of the Community Charter, the Commission's Social Action Programme of 1989 explicitly relied on its provisions for a series of legislative and social policy proposals during the 1990s.
The Social Protocol to the Treaty on European Union of 1991 provided the legal basis for extensive labour law competences of the European Community. However, the explicit reference to fundamental rights in Article 6(2) of the Treaty on European Union referred only to the ECHR, and not the ESC, let alone the ILO. 10 The amendment of Article 117 EC (re-numbered Article 136) by the Treaty of Amsterdam 1997 compensated for this omission by providing:

General principles of the EU legal order
The significance of the reference in the EU Charter's Preamble to "international obligations common to the Member States" is clear. ILO Conventions ratified by all Member States are recognised as a source of law underpinning the rights proclaimed. In fact, this merely reflects a longstanding position taken by the ECJ in Nold: 12 "As the Court has already stated, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. Safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States… Similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law". 11 It was highlighted by the addition by the Convention on the Future of Europe of a further sentence to this paragraph of the Preamble: "In this context, the Charter will be interpreted by the Courts of the Union and the Member States with due regard for the explanations…". The "explanations" referred to were originally prepared by the Praesidium of the Convention which drafted the Charter, but this was done on its own responsibility and the "explanations" were explicitly declared to have no legal value. This additional sentence purported to ascribe some legal value to the explanations. See also the additional Article 52(7) added to the Charter by the IGC in June 2004: "The explanations drawn up as a way of providing guidance in the interpretation of the Charter of Fundamental Rights shall be given due regard by the courts of the Union and of the Member States". This provision makes use by the courts of the Praesidium's explanations more difficult because the Praesidium's explanations are not always comprehensive or consistent in referring to, for example, those "international obligations common to the Member States" which are explicitly the interpretative context, the inspiration and source of the EU Charter's provisions. Since its proclamation on 7 December 2000, every Advocate General has cited the Charter in one or more Opinions, as has the Court of First Instance in a number of judgments. 13 The first judicial reference to the EU Charter was made by the Court of First Instance in a decision of 30 January 2002. 14 Five and half years after its proclamation, the ECJ itself finally cited the EU Charter in Case C-540/03, European Parliament v. Council, decided 27 June 2006. 15 . The Court states: 16 "The Charter was solemnly proclaimed by the Parliament, the Council and the Commission in Nice on 7 December 2000. While the Charter is not a legally binding instrument, the Community legislature did, however, acknowledge its importance by stating, in the second recital in the preamble to the Directive, that the Directive observes the principles recognised not only by Article 8 of the ECHR but also in the Charter. Furthermore, the principal aim of the Charter, as is apparent from its preamble is to reaffirm 'rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the [ECHR], the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court... and of the European Court of Human Rights'".
In other words, while not legally binding itself, the Charter reaffirms rights which are legally binding due to their provenance from other sources which are recognised by Community law as legally binding sources. 17 These sources include "international obligations common to the Member States", of which ILO Conventions are a prime example. The key text in the judgment is under the rubric "Findings of the Court" (beginning paragraph 35) with regard to the issue "The rules of law in whose light the Directive's legality may be reviewed" (beginning paragraph 30). 17 See also the following statement in the Opinion of Advocate General Kokott in Case C-540/03: (paragraph 108) "While the Charter still does not produce binding legal effects comparable to primary law, it does, as a material legal source, shed light on the fundamental rights which are protected by the Community legal order."

An illustration: Collective industrial action
The force of fundamental rights derived from international obligations common to the Member States can be illustrated in two cases currently pending before the ECJ.
In Viking, the defendant trade unions "point out that the right of association and the right to strike are protected as a fundamental right in various international instruments". 18 To the proposition that there exists a fundamental right to collective action there were varying degrees of assent in the submissions of the Member States in the case. 19 The Commission representative's oral submission cited the ECHR, Article 11, ILO Conventions, the European Social Charter and the EU Charter, Article 28. The Commission's representative concluded: the right to collective action seems in principle to be part of the general principle of EU law that protects fundamental rights. Member States have a wide margin of appreciation. But EU law precludes measures which deny the essence of the fundamental rights protected. 20 Advocate General Maduro concluded: 21 "…the rights to associate and to collective action are of a fundamental character within the Community legal order, as the Charter of Fundamental Rights of the European Union reaffirms".
In Laval, the submission that the right to take collective industrial action falls outside the scope of Community law by virtue of Article 137(5) EC 22 was firmly rejected by Advocate General Mengozzi. 23 He cites Article 6(2) TEU requiring the Union to re- Article 137(5) EC: "The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs". 23 Case C-341/05, Laval un Partneri Ltd v. Svenska Byggnadsarbetareforbundet, Svenska Byggnadsarbetareforbundet, Avdelning 1, Svenska Elektrikerforbundet, Opinion of Advocate General Men-spect fundamental rights, notes that it mentions only the ECHR and also the ECJ's view that the ECHR has special significance to enable the Court to identify the general principles of Community law. 24 Crucially, he adds: 25 "The Court is entitled, in so doing, to draw inspiration from instruments for the protection of human rights other than the ECHR".
He goes on to cite the references in the Preamble to the EU Treaty and in Article 136 EC to the European Social Charter and the 1989 Community Charter. 26 He continues: 27 "The Court's concern to accord 'special significance' to the ECHR, without thereby excluding other sources of inspiration, found expression in the Charter of Fundamental Rights of the European Union solemnly proclaimed on 7 December 2000… Admittedly, the Charter of Fundamental Rights is not a legally binding instrument. However, the Court has already emphasised that its principal aim, as is apparent from its preamble, is to 'reaffirm rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States…".
He subsequently analyses the limited protection for the right to strike available under the ECHR, but goes on to cite Article 6(4) of the European Social Charter, which explicitly recognises the right to strike, as does paragraph 13 of the 1989 Community Charter, Article 28 of the EU Charter and the constitutional instruments of numerous Member States. 28 His conclusion is: "This analysis prompts me to consider that the right to resort to collective action to defend trade union members' interests is a fundamental right. 29 It is therefore not merely a 'general principle of labour law', as the Court has already held in relatively old case-law in Community staff cases, but rather a general principle of Community law, within the meaning of Article 6(2) EU. That right must therefore be protected in the Community". : "In my view, the right to take collective action in order to protect occupational interests in so far as it is indispensable for the enjoyment of freedom of association is also protected by Community law". In Albany, the Commission cited, inter alia, ILO Conventions Nos 87 and 98 in support of their contention that the right to collective bargaining is a fundamental right. This contention was not accepted by Advocate General Jacobs; see paras. 141-142.

EU secondary legislation
Two examples will be invoked to illustrate the use of ILO standards in EU secondary legislation: the Directives on public procurement, and the Services Directive.

a) Public procurement
New EU Directives on public procurement 30 were to be implemented into national law by 31 st January 2006. The outcome of the legislative process was less than satisfactory, as the process of revision led to a stalemate between those who wished to exclude social and labour standards, and those who wished them to be mandatory or at least optional. In the end, the status quo was resoundingly affirmed: the EU Directives are intended to reflect the position of the European Court of Justice. 31 The problem is that the precise nature of this status quo is hotly disputed. 32 Recital 33 of the Preamble to the Directive states: "Contract performance conditions are compatible with this Directive provided that they are not directly or indirectly discriminatory and are indicated in the contract notice or in the contract docu-ments… For instance, mention may be made, amongst other things, of the requirements -applicable during performance of the contract -…to comply in substance with the provisions of the basic ILO Conventions, assuming that such provisions have not been implemented in national law…". Directorate General deals with "Interpretation of Community public procurement law and the possibilities for incorporating social considerations in public procurement". Document CC/01/10 EN, Brussels, 3 April 2001, MARKT/B2/NSK. The last paragraph on page 8 says that to require public procurement contractors to comply with ILO Conventions (footnote 22: child labour, freedom of association, etc.), these "must previously have been ratified by a given country and, where necessary, have been incorporated into their national law". No authority is provided for this statement. The document continues: "Most of these Conventions concern the respect of fundamental economic and social rights which have already been implemented in social and other legislation, and are therefore applicable in any event". It is not clear that EC law on public procurement requires that ILO Conventions must they have been ratified or incorporated. So long as the fundamental economic and social rights in these Conventions are applied on a transparent and non-discriminatory basis by the contracting authority, it does not matter if the Member State has ratified or incorporated them.
ILO Convention 94, the Labour Clauses (Public Contracts) Convention 1949, requires compliance with labour standards going beyond anything envisaged by current directives. The ILO Convention requires contracts to include clauses ensuring working conditions, including those in collective agreements. 33 The ILO Convention has been ratified by nine Member States (one of which, the UK, denounced it in 1982). The ratifying Member States are: Austria, Finland, France (1951), Belgium, Italy, Netherlands (1952), Denmark (1955) and Spain (1971). 34 The implication is that ILO Convention No. 94 is consistent with EC law, including the procurement directives. If the Convention is consistent with EC law, there can be no objection in EC law to incorporating similar clauses in the current revision of the directives. Eight Member States clearly support such a policy by continuing their ratification of the Convention.
The issue is about to come before the ECJ in Case C-346/06, Dirk Rüffert v. Land Niedersachsen. 35 The question referred to the ECJ is: "Does it amount to an unjustified restriction on the freedom to provide services under the EC Treaty if a public contracting authority is required by statute to award contracts for building services only to undertakings which, when lodging a tender, undertake in writing to pay their employees, when performing those services, at least the remuneration prescribed by the collective agreement in force at the place where those services are performed?" The overlap between Viking/Laval and Rüffert is obvious. They involve enterprises moving from one Member State to provide services in another Member State. In this context the fact that the EU has recently adopted, after three years of contentious debate, the Directive on Services, should not be ignored.

b) The Services Directive
Article 1(7) of the Services Directive 36 provides: "This Directive does not affect the exercise of fundamental rights as recognised in the Member States and by Community law. 37 Nor does it affect the right to negotiate, conclude and enforce collective agreements and to take industrial action in accordance with national law and practices which respect Community law".
There is clear acknowledgment in the first sentence that "fundamental rights… [are] recognised… by Community law". 38 The other rights referred to are arguably these specified in the second sentence (eiusdem generis): Community law protects "the right to negotiate, conclude and enforce collective agreements and to take industrial action in accordance with national law and practices which respect Community law". 39 This is an interpretation consistent with Recital 15:

IV. Substance: The nature of ILO standards as sources of EU law
International labour law has its most important source in the norms promulgated by the International Labour Organisation (ILO), established in 1919, which declared as one of its principles that "labour should not be regarded merely as a commodity or article of commerce". 41 In terms of their content, ILO norms have slowly but surely increased in number and scope and are now numerous and cover a huge range of topics. However, the standard of the norms adopted has often been minimal: the lowest common denominator. In terms of their adoption and enforcement, the tripartite principle of participation of representatives of employers and workers alongside governments has increased the likelihood of approval of norms by ILO institutions and enhanced their legitimacy. However, the mechanisms of enforcement of norms adopted have been acknowledged as often inadequate.
EC labour and social law does not strictly conform to this framework. Labour, and even more so social matters, were relatively marginal to the original objectives of the European Economic Community, founded in 1957 to establish a common market for goods, services, capital and labour. Despite the expansion of competences in labour law by the Social Protocol and Agreement on Social Policy of the Treaty of Maastricht, now incorporated into the EC Treaty, Article 137, in terms of their content, the development of norms regarding labour during almost five decades of existence of the EC has been spasmodic, episodic and unsystematic. Despite the great leap forward of the constitutionalisation of the European social dialogue by the Maastricht Treaty, now in Articles 138-139 EC, the combination of a Commission allergic to regulation and a blocking minority of Member States in the Council has led the social dialogue into its current impasse. However, the mechanisms of enforcement extend far beyond the possibilities available to the ILO machinery. These qualities of content and procedures of adoption and enforcement of norms are important to understanding the specificity of EC labour law.
The ILO singularly failed in its attempt to build on the corpus of international economic law to promote labour standards in an integrated global economy . The story of the failure of attempts to persuade the WTO to incorporate labour standards is well known. 42 The endless debate over social dumping v. protectionism resulted in stalemate, or worse... The ECJ in its labour law jurisdiction is similarly confronted with vital issues of the rights of workers in a legal framework developed to promote the economic freedom of employers in a single European market. To what extent do the labour standards of the ILO offer a model? Two approaches are illustrated by very recent developments.

The United States experience
A minimal approach is illustrated by an agreement reached in May 2007 between the administration of President George Bush and the Congress on labour standards in bilateral trade agreements. 43 The agreement incorporates the binding obligation that countries uphold in their laws and practice the obligations of the International Labour Organization's 1998 Declaration on the Fundamental Principles and Rights at Work. The relevant principles are the freedom of association, the effective recognition of the right to bargain collectively, the elimination of all forms of forced or compulsory labour, the effective abolition of child labour and the elimination of discrimination in respect to employment and occupation.
The ILO standards will be included in the text of treaties and enforced like any other provision, with no exceptions for the United States. In this case, however, the standards are not those in eight separate ILO Conventions, which the United States has never ratified. The United States was thereby insulated from a body of ILO case. At one level, the US Congress has taken a major step forwards as regard trade and labour standards. However, the US social model is far from that of the EC and its acquis communautaire social.

The Canadian experience
Another approach, in my view more appropriate, is that illustrated by an even more recent development in Canada.
On preme Court declared that freedom of association guaranteed by section 2(d) of the Charter includes a procedural right to collective bargaining: 46 "Our conclusion that s. 2(d) of the Charter protects a process of collective bargaining rests on four propositions. First, a review of the s. 2(d) jurisprudence of this Court reveals that the reasons evoked in the past for holding that the guarantee of freedom of association does not extend to collective bargaining can no longer stand. Second, an interpretation of s. 2(d) that precludes collective bargaining from its ambit is inconsistent with Canada's historic recognition of the importance of collective bargaining to freedom of association. Third, collective bargaining is an integral component of freedom of association in international law, which may inform the interpretation of Charter guarantees. Finally, interpreting s. 2(d) as including a right to collective bargaining is consistent with, and indeed, promotes, other Charter rights, freedoms and values." Each of these propositions could usefully be explored for its applicability to the EU context. 47 However, it is the third proposition, that "collective bargaining is an integral component of freedom of association in international law, which may inform the interpretation of Charter guarantees" which is of most interest in this paper.
In the section of the judgment entitled "International Law Protects Collective Bargaining as Part of Freedom of Association" 48 , the Supreme Court confirms that "Canada's international obligations can assist courts charged with interpreting the Charter's guarantees". 49 The Supreme Court states that "the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified". 50 The Court cites as "sources most important to the understanding of s. tional consensus, but also principles that Canada has committed itself to uphold". 51 The Supreme Court continues: 52 "The ICESCR, the ICCPR and Convention No. 87 extend protection to the functioning of trade unions in a manner suggesting that a right to collective bargaining is part of freedom of association. The interpretation of these conventions, in Canada and internationally, not only supports the proposition that there is a right to collective bargaining in international law, but also suggests that such a right should be recognized in the Canadian context under s. 2(d)".
Specifically as regards the ILO Convention, the Supreme Court states: 53 The Supreme Court then goes on the quote at length a recent review by ILO staff summarizing a number of principles concerning collective bargaining. 54 In this connection, it is worth noting the Supreme Court's careful reference to the fact that "that the present case does not concern the right to strike, which was considered in earlier litigation on the scope of the guaranteed of freedom of association". 55 Had the case concerned the right to strike, the question would have arisen whether international law protects the right to strike as part of freedom of association.
Although there is no express recognition of the right to strike in ILO Convention 87, it has been implied into Convention 87, Article 3, by the supervisory bodies. According to the ILO Committee of Experts: "The right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests". The jurisprudence of the supervisory bodies on the nature and scope of the right to strike is now extensive. It is more than coincidental that an account is provided by the same three officials of the ILO cited by the Supreme Court in an earlier article. 56 According to Gernigon et al., since 1952 the Freedom of Association Committee has recognised "the right to strike to be one of the principal means by which workers and their associations may legitimately promote and defend their economic and social interests". 57 So far as secondary boycotts are concerned, this is an issue where the supervisory bodies have gradually accepted that the conduct in question is protected by Convention 87 as an incident of the right to strike. The Committee of Experts addressed this matter in 1994 in the following terms: "Sympathy strikes, which are recognised as lawful in some countries, are becoming increasingly frequent because of the move towards the concentration of enterprises, the globalisation of the economy and the delocalisation of work centres. While pointing out that a number of distinctions need to be drawn here (such as an exact definition of the concept of sympathy strike; a relationship justifying recourse to this type of strike, etc), the Committee considers that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is itself lawful". 58 Gernigon et al. suggest that the Committee has made "no direct statement or indication relating to sympathy strikes…". The authors point out, nevertheless, that since 1983 the Committee has "determined that a general prohibition of sympathy strikes could lead to abuse and that workers should be able to take such action provided that the initial strike they are supporting is itself lawful". 59 57 They continue in the following terms: "Over the years, in line with this principle, the Committee on Freedom of Association has recognised that strike action is a right and not simply a social act, and has also: 1. made it clear it is a right which workers and their organisations (trade unions, federations and confederations) are entitled to enjoy; 2. reduced the number of categories of workers who may be deprived of this right, as well as the legal restrictions on its exercise, which should not be excessive; 3. linked the exercise of the right to strike to the objective of promoting and defending the economic and social interests of workers (which criterion excludes strikes of a purely political nature from the scope of international protection provided by the ILO, although the Committee makes no direct statement or indication regarding sympathy strikes other than that they cannot be banned outright…; 4. stated that the legitimate exercise of the right to strike should not entail prejudicial penalties of any sort, which would imply acts of anti-union discrimination". Ibid., p. 443. 58 The Committee of Experts' jurisprudence on this issue has been developed specifically in the context of the supervision of the United Kingdom's compliance with Convention 87. The ILO Committee of Experts has commented unfavourably on British law since 1989 so far as it relates to the right to strike. One of the provisions subject to criticism by the Committee of Experts was the redefinition of a trade dispute in the Employment Act 1982 (now the Trade Union and Labour Relations (Consolidation) Act 1992, section 244). Secondary action is still banned in Great Britain, though the ban is a clear breach of international legal obligations. See K. Ewing, Britain and the ILO, 2 nd ed., Institute of Employment Rights, London. 1994. 59 For this purpose sympathy action would include secondary boycotts: a sympathy strike is defined generically to mean "where workers come out in support of another strike". Gernigon et al. also refer to a report of the Freedom of Association Committee in a complaint in 1987 where a legislative decree imposed restraints on sympathy action. Gernigon et al. report that: "...although several provisions contained in the Decree might be justified by the need to respect various procedures (notification of the strike to the labour authorities) or to guarantee security within the undertaking (the prevention of agitators and strike-breakers from entering the workplace) others, however, such as geographical or sectoral restrictions placed on sympathy strikes… or restrictions on their duration or frequency, constitute a serious obstacle to calling strikes". More recent cases deal with matters such as a complaint from Greece about restrictions on the right to strike by seafarers, and another from Australia involving a dispute on the waterfront. The latter is particularly important for highlighting

V. The current challenge: ordre communautaire social
The ECJ's jurisdiction in labour law points to the need to identify the common traditions and legal and constitutional practices protecting fundamental social, labour and trade union rights in the laws of the Member States.
For example, freedom of association in trade unions has acquired constitutional status in some Member States. Sometimes this is a part of a constitutional guarantee of a general right of association, sometimes, the guarantee is granted by ordinary legislation or "basic agreements" between the social partners. Does a trade union's "right to freedom of association" also include other collective trade union rights, such as the right to collective bargaining and collective agreements, the right to strike or take other industrial action? Different Member State concepts of "freedom of association" include some, many or even all of these elements. 60 Trade union freedom of association includes some rights recognised in all (or most) Member States. In a Member State, a claim to the right of association in the EU Charter, as a question of EU law, could be referred by a national court to the ECJ under Article 234 of the EC Treaty. In interpreting the right at EU level, the ECJ could draw upon a range of sources, including international law, in particular, ILO Conventions, Council of Europe measures and existing EC law.
The ECJ's labour law jurisdiction cannot rely on the European Convention for the Protection of Human Rights (ECHR) of 1950. The ECHR is not focused on protection of the rights of workers. 61 Social and labour rights are the focus of the European Social the right of workers to seek international assistance and for confirming the protection for secondary action under ILO Convention 87. 60 Concepts of freedom of association often overlap; that does not mean they are the same. Different Member States will include some elements and exclude others. But there are elements of trade union rights which all, or most Member States agree are protected. These elements, on which there is consensus, can be assembled into a principle of "freedom of association" at EU level. A narrow formulation of "freedom of association" might include a large number of Member States where such a formulation is acceptable. The wider the range of rights, the lesser the number of Member States which accept that those rights are within the scope of the fundamental trade union right of freedom of association. The aim is a formulation which includes fundamental trade union rights recognised in all (or most) Member States: a common core of elements of a right of "freedom of association" which is shared by all, or a majority of the Organise and to Bargain Collectively) has produced a common foundation of trade union rights in all Member States. The ECJ could play a role in constitutionalising the EU social model by adopting a specific interpretative framework for relevant provisions of the Treaties and secondary legislation. This interpretation would be consistent with the evolving context of the EU from a purely economic Community establishing a common market to a European Union with a social policy aimed at protecting workers employed in the common market who are also citizens of the Union enjoying fundamental rights. 64 From the beginning of the European Community, improvement of living and working conditions was stipulated as a social policy objective. EU and Member State regulation of social provisions "shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained" (Article 136 EC).
Additionally Community level may lead to contractual relations, including agreements" (Article 139(1) EC) and "Agreements concluded at Community level shall be implemented…" (Article 139(2) EC). Insofar as regulation of living and working conditions is left to social dialogue, the process of negotiation between the social partners, a crucial element in this process, is Treaty protected collective action. This overriding interpretative framework comprises the accumulated body of EU social and labour law, the acquis communautaire social, including five principles of what may be called ordre communautaire social: universal premise of international labour law based on the Constitution of the ILO to which all Member States belong: "labour is not a commodity"; 65 the activities of the Community shall include "a policy in the social sphere" (Ar- the common market principle of equal treatment of all workers without discrimination based on nationality. In brief, the ECJ is to interpret and apply EU in the light of ordre comunautaire social: labour is not a commodity like others (goods, capital), free movement is subject to the objective of improved working conditions, respecting the fundamental rights of workers as human beings, acknowledging the central role of social dialogue and social partnership at EU and national levels, and adhering to the strict principle of equal treatment without regard to nationality.

ILO standards compatible with the acquis communautaire social
In the immediate future, the ECJ is confronted with two cases, Laval and Viking, both for which raise in the most acute form the question of fundamental rights of labour in the EU legal order and related questions of respect by Member States of ILO standards. The Opinions of the Advocates General in these cases propose different solutions in balancing the economic freedoms of employers and the fundamental rights of workers and their organisations.
In Laval, Advocate General Mengozzi's assessment of the legitimacy of collective action is based on the criterion of "proportionality". This has obvious appeal for two reasons. It is a well-known criterion in EU law. It is also a way in which, as Advocate General Mengozzi indicates, national courts can apply EU law consistently with national conceptions of what is or is not acceptable collective action. 67 It has equally obvious disadvantages. Without further specification, it is too vague to be applied to the enormous diversity which collective action takes (ranging from normal collective bargaining to workplace occupations). It will give rise to great divergences in the practice of national courts, both probably within national systems and certainly between national systems. Collective action in one Member State may be deemed an unacceptably disproportionate restriction on Community economic freedoms while identical collective action in another Member State is considered a wholly acceptable restriction. Not least, such divergences will inevitably give rise to references to the ECJ questioning national courts' application of the criteria. 68 In contrast, Advocate General Maduro's Opinion in Viking never even uses the word "proportionality". Instead, Advocate General Maduro proposes to legitimize autonomous collective action under certain conditions. 69 There are two criteria: (i) for national 67 Para. 80: "…it is necessary to distinguish between the right to resort to collective action and the means of exercising it, which may differ from one Member State to another and do not automatically enjoy the protection enjoyed by that right itself…". But see also para. 142: ""…the interpretation of national law in conformity with Community law which the national court might adopt should not lead it to impair the very substance of the right to take collective action to defend the interests of workers, which, in my preliminary observations above, I have recognised as constituting a general principle of Community law, also upheld by the Swedish Constitution". See also para. 76 referring to Article 28 of the EU Charter on the right to take collective action, including strike action, and the permitted limitations in Article 52(1) of the Charter. In more general terms, to balance the risk of social dumping, Advocate general maduro invokes the so-called "social contract". Para. 59: "Although the Treaty establishes the common market, it does not turn a blind eye to the workers who are adversely affected by its negative traits. On the contrary, the European economic order is firmly anchored in a social contract: workers throughout Europe must accept the recurring negative consequences that are inherent to the common market's creation collective action: timing is everything; action before relocation is lawful; 70 action after relocation is unlawful 71 as partitioning the labour market, a form of discrimination on grounds of nationality prohibited by EU law. 72 ; (ii) for transnational collective action: solidarity must be voluntary. 73 of increasing prosperity, in exchange for which society must commit itself to the general improvement of their living and working conditions, and to the provision of economic support to those workers who, as a consequence of market forces, come into difficulties. As its preamble demonstrates, that contract is embodied in the Treaty". This is admirable sentiment but it is both legally questionable under present Treaty provisions and somewhat unrealistic in the present political climate. It is also at odds with international conventions and constitutional traditions which look to autonomous collective action as the main protection of workers interests. 70 Para. 66: "Thus, in principle, Community law does not preclude trade unions from taking collective action which has the effect of restricting the right of establishment of an undertaking that intends to relocate to another Member State, in order to protect the workers of that undertaking". Para. 67: "…collective action to persuade an undertaking to maintain its current jobs and working condi-tions… represents a legitimate way for workers to preserve their rights and corresponds to what would usually happen if relocation were to take place within a Member State". 71 Para. 67: "However, collective action to persuade an undertaking to maintain its current jobs and working conditions must not be confused with collective action to prevent an undertaking from providing its services once it has relocated abroad. The first type of collective action represents a legitimate way for workers to preserve their rights and corresponds to what would usually happen if relocation were to take place within a Member State. Yet, that cannot be said of collective action that merely seeks to prevent an undertaking that has moved elsewhere from lawfully providing its services in the Member State in which it was previously established". The last sentence seems directly to contradict the policy of both the Posting Directive (Directive 96/71/EC concerning the posting of workers in the framework of the provision of services. OJ 1996, L18/1) and the Services Directive. Both allow the host Member State to enforce domestic labour standards. Why should trade unions not be allowed to take collective action in their own Member State against undertakings which have relocated and now seek to provide services in the host Member State? 72 Para. 62: "A coordinated policy of collective action among unions normally constitutes a legitimate means to protect the wages and working conditions of seafarers. Yet, collective action that has the effect of partitioning the labour market and that impedes the hiring of seafarers from certain Member States in order to protect the jobs of seafarers in other Member States would strike at the heart of the principle of non-discrimination on which the common market is founded". 73 Paras. 70-72; "Naturally, the FSU may, together with the ITF and other unions, use coordinated collective action as a means to improve the terms of employment of seafarers throughout the Community. A policy aimed at coordinating the national unions so as to promote a certain level of rights for seafarers is consistent with their right to collective action. In principle, it constitutes a reasonable method of counter-balancing the actions of undertakings who seek to lower their labour costs by exercising their rights to freedom of movement. One must not ignore, in that regard, the fact that workers have a lower degree of mobility than capital or undertakings. When they cannot vote with their feet, workers must act through coalition. The recognition of their right to act collectively on a European level thus simply transposes the logic of national collective action to the European stage. However, in the same way as there are limits to the right of collective action when exercised at the national level, there are limits to that right when exercised on a European level. A policy of coordinated collective action could easily be abused in a discriminatory manner if it operated on the basis of an obligation imposed on all national unions to support collective action by any of their fellow unions. It would enable any national union to summon the assistance of other unions in order to make relocation to another Member State conditional on the application of its own preferred stan-

A solution consistent with ILO standards in the context of the acquis communautaire social
The ECJ may seek a solution which accommodates the approaches adopted in the Opinions of the Advocates General in Viking and Laval. In very brief outline, this could involve the following five steps.
In Viking, Advocate General Maduro takes the position that in cases of relocation, collective action is permitted to combat social dumping provided it is taken before the relocation occurs. Relocation is almost invariably accompanied by collective dismissals of workers. The ECJ in Case C-188/03, Junk, declared unequivocally that any decision to collectively dismiss workers can only be taken after the completion of the process of information and consultation. 74 Relocation between Member States will often be the action of multinational enterprises. European works councils (EWCs) have successfully taken legal action to block decisions by multinationals where the enterprise failed to comply with the requirements of the EWCs directive. 75 The conclusion, consistent with the reasoning of Advocate General Maduro in Viking, is that collective action should always be possible as any decisions affecting the workforce cannot be taken until the information and consultation requirements have been complied with. 76 According to Advocate General Mengozzi in Laval, the balance between fundamental rights to collective action protected by the EU legal order and economic freedoms guaranteed by the Treaty is determined by the criterion of proportionality. This criterion has major defects as a matter of practical application by courts in different Member States. The ECJ should provide further guidance in the form of a criterion of "proportionality" inspired by Advocate General Maduro's Opinion in Viking. The criterion would be whether the employer had complied with the EU obligation to inform and consult prior to any decision, on relocation or on any other matter, requiring such a process of prior engagement with the workforce. Failure to do so would automatically make any resulting collective action proportionate. This solution provides a criterion with both doctrinal and practical advantages. It is a specifically EU criterion of proportionality based on the acquis communautaire of EU Directives requiring information and consultation, Article 27 of the EU Charter (the fundamental right to information and consultation) and the transnational nature of enterprises and of collective action in the EU.
If complied with, it contributes to avoiding the negative consequences of both litigation (seeking remedies in the form of injunctions from national courts to enforce the obligation to inform and consult) and collective industrial action by workers. It is a solution which reconciles respect for the international labour law standards of the ILO with the specific context of the acquis communautaire social.

VI. Conclusion
The ECJ's jurisdiction in labour law offers the prospect of consolidating the EU as a major player in the emerging legal order of globalisation. It becomes a leader, not a follower in the wake of the ILO and the WTO. EC labour law, by virtue of its character as a supranational law with supremacy over national labour laws, already partakes of the character of a higher norm. It is European as reflecting the cumulative experience of national labour laws, filtered through the prism of the EU institutions and refined in the crucible of the developing European polity. The EU Charter's labour rights, becoming part of an EU social constitution, would reinforce this status. The EU social constitution may become a model for international labour law.
The Impact of National Labour and Social Law on the Law of the European Community Niklas BRUUN

I. Introduction
There are two main channels through which national law can have an impact on the law of the European Community. The first is through legislation adopted by the Community institutions (regulations, directives, decisions etc.). The second is through the Court practice of the European Court of Justice (ECJ). I will comment on both.
I start with a simple distinction between three different types of EC law. This is followed by a discussion in the light of some examples of how national labour and social law influences the law of the European Community.

II. Different types or categories of EC labour and social law
National labour laws harmonised through EC Directives or other instruments: The extensive EC regulation on health and safety forms one example of such harmonization. During such a legislative process of harmonization it is always possible that one or another country forms a model for the EC legislator, although in practice EC law usually is designed as a compromise between different national models. Regulation of the labour or social law aspects of cross-border or genuinely transnational phenomena involving labour in the internal market: European Works Councils, European Companies (SE), posting of workers, co-ordination of social security for workers who have been working in different Member States, etc.. Here the specific transnational feature of the regulation indicates that it cannot as such directly copy any national regulation. Indirect "regulation" is the third type of regulatory measures on EC level that have an impact on labour and social law: a strong internal market legal regime may restrict national labour and social law rights or practices; examples include competition law vs. collective agreements, economic rights to free movement vs. the right to collective bargaining and the right to resort to collective action, etc. Another kind of such indirect restriction is the prohibition of a trade union representative on a listed company's board of directors to discuss issues concerning