Dagmar Schiek, Social Ideals of the Court of Justice of the European Union in:

Tatjana Evas, Ulrike Liebert, Christopher Lord (Ed.)

Multilayered Representation in the European Union, page 157 - 183

Parliaments, Courts and the Public Sphere

1. Edition 2012, ISBN print: 978-3-8329-7218-9, ISBN online: 978-3-8452-3574-5,

Series: Schriftenreihe des Zentrums für Europäische Rechtspolitik der Universität Bremen (ZERP), vol. 64

Bibliographic information
157 Social Ideals of the Court of Justice of the European Union Dagmar Schiek* I. Introduction Within the overarching theme of investigating representation in the European Union and the legitimate role of courts in public discourse as well as their contribution to reconstituting democracy, this chapter focuses on the highest judicial authority of the European Union, its Court of Justice.1 Considering contributions of courts to democracy, this chapter explores social ideals implicit in the Court’s case law. Accordingly, it analyses case law as a discourse which may represent ideals on society. This chapter analyses the Court’s case law not from the viewpoint of political institutions2 but rather from a societal perspective. This perspective seems more fitting to the Court’s actual activity: the majority of cases it hears are referred by national courts,3 where disputes between the EU’s political institutions or competence conflicts between the EU and its Member States are not typical. Rather, cases originating before national courts turn on conflicts between non-state parties emerging from socio-economic life. Thus, through its Court of Justice the EU engages with society in the Member States, and also with an emerging European society. The quest for the Court’s social ideals targets this connection between judicial discourse and society, and thus presupposes that there is at least an emerging European society. (Outhwaite 2008) While it is neither realistic nor desirable for the diverse societies in Europe to merge into any uniformity, Europeanization still creates social spaces. Examples include cooperation between trade unions across borders (Eichhorst et al. 2011), efficient coordination of employers’ * Chair in European Law, University of Leeds, Centre of European Law and Legal Studies (). This chapter has profited from editorial advice by Ulrike Liebert, Tatjana Evas and from critical remarks on the oral presentation by participants in the Bremen RECON workshop in July 2011, especially by Petra Guasti. The usual disclaimer applies. 1 With the Treaty of Lisbon, the “European Court of Justice” has been re-branded to the “Court of Justice of the European Union” (Article 13 Treaty of the European Union, hereinafter TEU). It consists of the Court of Justice, the General Court and specialised courts (Article 19 TEU). Accordingly, the familiar abbreviation “ECJ” is now no longer accurate. The chapter will use Court of Justice or Court instead. 2 For a recent overview of political science studies on the Court see Stone Sweet 2011. Research on the Court of Justice discusses whether the Court can open (additional) arenas for democratic engagement, e.g. for civil society (Cichowski 2007; 2006), seeks to explain the conduct of the Court as political actor (Alter 2009) or to expose the illegitimacy of its “political activism” (Nicol 2010). 3 The Court’s annual report specifies the origin of all cases since 1953. This table shows that initially direct actions were dominant, but that from 1994 preliminary references became the main source of the Court’s case load. In 2010, 385 out of 624 new cases originated from national courts, 136 were direct actions brought by the Commission or anyone subjected to a decision, and 97 were appeals (Court of Justice of the European Union, 2011: 102). Schiek 158 strategies confronting these,4 the exchange of educational establishments and cultural authorities under the Bologna process (Garben 2011) and cooperation between businesses and their EU lobbyists (Fligstein 2008: 89-123). “EU-litigation” itself is even seen as proof of increasing Europeanization of societies (Cichowski 2007). Accordingly, EU levels of societal integration are sufficiently developed to make an investigation of the Court’s social ideals worthwhile. The chapter uses industrial relations as a case study for exploring the Court’s social ideals. In this field, some of the Court’s rulings after Eastern Enlargement5 have attracted much academic attention.6 The main reason for choosing this field is not this academic debate, but rather its proximity to societal rather than institutionalised forms of democracy. Only in the most totalitarian states are relations between management and labour, also called the two sides of industry, entirely governed by state regulation. In democratic societies abiding by Western human rights codes the right of workers to combine is even guaranteed as a human right, alongside some basic form of collective bargaining.7 The result is a sphere where collective bargaining and industrial action are seen as legitimate ways of achieving non-state regulation. While national traditions vary greatly, this suggests that it is also a field where social ideals (rather than public policy principles) are represented in juridical discourse. In addition, Europeanization of national practices in industrial relations emerges alongside European level social practices. The chapter will proceed as follows: section II sketches the notion of social ideals of the Court of Justice by explaining the general notion and developing parameters for likely social ideals derived from the EU integration project. Section III offers an analysis of rulings by the Court of Justice relating to collective agreements, collective bargaining or to industrial action, after developing the expected social ideals and corresponding discursive arguments against the background of diverse national traditions in the field and fledgling EU level industrial relations. The conclusion draws both parts together, hinting at future research perspectives. 4 As evidenced by careful orchestration between a Latvian employer and the Swedish Employers Association who funded the Laval action in order to weaken the Swedish legislation on collective action (Woolfson & Sommers 2006: 61). 5 Cases C-438/05 Viking, C-341/05 Laval, C-346/06 Rüffert (decided in 2007 and 2008), and more recently C-271/08 COM v Germany (for sources see table preceding bibliography). 6 It is impossible to reference the vast amount of academic critique, which includes some edited collections (e.g. Blanpain & ĝwiątkowski 2009, Ales & Novitz 2010, and is overwhelmingly negative (especially pronounced: Barnard 2008, Höpner & Schäfer 2010, Orlandini 2008, Fudge 2011). The more recent ruling in COM v Germany is partly seen as a first step for improvement (Syrpis 2011, Barnard & Deakin 2011: 265-267). 7 The contrast between authoritative and democratic industrial relations was also the motive for Kahn- Freund’s classic study of social ideals of courts in this field, undertaken for national levels (Kahn- Freund 1966, translated to Kahn-Freund 1981), and emulated in later times (Däubler 1975) and also – only using the particularly controversial judgments – for the EU (Wendeling-Schröder 2010). Social Ideals of the Court of Justice of the European Union 159 II. Social Ideals and the Court of Justice 1. Social Ideals and Law’s Indeterminacy The suggestion that social ideals play a decisive role in the Court’s engagement with society both at national and EU level presupposes that positive law is not the only factor determining its case law. Even at national levels, positive law is necessarily indeterminate, whether it is viewed from a purely linguistic8 or a positivist legal perspective,9 or – as here – as a social practice.10 Accordingly, courts have, in principle, a legitimate role in producing rules and provide regulation and ultimately governance for society. For the EU, the indeterminacy is compounded by the fact that any positive law is derived from negotiations and compromise between now 27 Member States with vastly different social, economic, political and cultural orientations. The question is how the Court resolves this compounded indeterminacy when ruling on EU cases. Judicial “imagination” (Azoulai 2008: 1340) may sometimes appear as the only explanation on just how gaps in positive EU law have been filled. This chapter suggests that social ideals can offer a better explanation. Social ideals comprise utopian dimensions: based on social norms, a social ideal also expresses an ideal state of society, which may well clash with social reality.11 Social ideals are not traditionally acknowledged as judicial methodology. It has even been said that the Court is more likely to refer to past case law, established doctrine and Treaties and secondary legislation if it needs to draw on other sources, in order to imbue a potentially contentious ruling with authority. (Azoulai 2008: 1339-1340) More frequently, judges will not consciously draw on social ideals. They may even seriously believe that their decision is determined by doctrine. However that may be, the texts of court rulings are open to critical analysis, which will uncover implied social ideals. The quest is for discursive representations in texts, which can be independent from conscious decisions of the speakers. 2. Critique of Case Law and the Notion of Law This approach to criticising case law draws on a view of law as rooted in societies as one of many social practices. While endowed with its own internal logic, law is at best semiautonomous, but never fully self-referential (Schiek 2010a: 70-71). In a dialectic view, if 8 The existence of imbued meaning and the necessity of drawing on circumstantial knowledge when understanding textual language is also the starting point of critical discourse analysis (Leeuwen 2009: 147). 9 Positivist legal theory acknowledges law’s indeterminacy. For example, Hart uses the concept of the “open texture of law”, also referring to uncertainty as a necessary characteristic of human language (Hart 1997: 118, 123-136). 10 Whether the notion of law as a social practice is in itself positivist (Smith 2006) or rather a conception which views law from sociological perspectives (Cotterrell 2007: 15) is disputed. The perspective taken here departs from recognising law as a social science among economics, political science and sociology, and at the same time acknowledging its specific hermeneutic character. 11 A well-known definition sees social ideals as “implicit images of one’s own society that guide the practices of making and applying the law” (Habermas 1992: 392). Schiek 160 moving beyond deterministic tendencies,12 law becomes a double edged sword. In mirroring the balance of power in any society, law is a tool in the hands of those defending a dominant position, but at the same time offers opportunities for those who are not (yet) in a position of dominance. Courts are always a resort for resolving conflicts, and frequently these conflicts will also mirror a difference of interest between those in a position of power and those being dominated. In these cases, courts are challenged to mitigate between conflicting or even antagonist social positions. The quality of the social ideals that are discursively represented in their rulings is decisive for their substantive legitimacy. Such substantive legitimacy again depends on a fair mitigation of conflicting and antagonist positions which does not negate the existing cleavage altogether. If courts are inclined to not openly appraise any social ideal informing their rulings, identifying courts’ social ideals seems to require looking behind the surface of their activity. In the case of the Court of Justice, interviewing judicial actors has also been employed as a research method to that end, e.g. in order to detect whether ECJ judges were consciously engaging in building the EU’s judicial constitution (Everson & Eisner 2007) or whether its advocates general see themselves as cause lawyers (Solanke 2011). However, the hypothesis that social ideals are discursively represented in the case law itself suggests a textual critique. This resonates with the specific contribution of case law to the social practice called “law”: its authoritative elements are imbued in the texts of the judgments.13 Thus, a text based analysis of case law is the preferred methodology here. (Schiek 2010a: 77-78) A full discourse analysis would require a full doctrinal analysis of each case as a first step, in order to identify the indeterminacy of positive law. This step is omitted here in order not to exceed the scope of a book chapter.14 3. Parameters for EU Courts’ Social Ideals A case study on the Court’s social ideals in one field needs to be related to a general assumption on how social ideals of the highest judiciary for a multi-level entity will develop. This is also related to assumptions how basic assumptions about societies at national levels and in emerging transnational spaces can be formed at all. Starting from the initial economic impetus of the European Union, an implicit ideal of competitive markets being superior to political processes as autonomous “regulators” of societies can be expected. However, the EU is also committed to social justice (now Article 3 TEU). As competitive markets are not aimed at social justice, we might expect a first cleavage between competitive market principles and cooperative principles underlying social justice. Closely related to the internal market, but further developed through the introduction of EU citizenship, the ideal citizen of the EU may well be a person who takes 12 Sometimes to be found in emanations of Marxist theories of law (Wagner 1976) – for an alternative view, departing from a dialectic base see Buckel 2007: 73. 13 It is no coincidence if these ideas are reminiscent of Bourdieu’s notion of the force of law (Bourdieu 1987). However, the question as to how far his notion of the socio-political field can be applied to EU law as a juridical field or whether rather an adaptation towards a multiplicity of socio-legal fields at several levels is adequate would require much more thought (for some preliminary ideas see Schiek 2010b: 487-488). 14 A combination of doctrinal and discourse analysis is offered in Schiek 2012. Social Ideals of the Court of Justice of the European Union 161 full advantage of free movement rights. However, the majority of EU citizens prefer to remain where they are.15 Accordingly, we can expect cleavages between the free movers and local dwellers,16 ranging from access to social benefits to position and rights in employment markets or to other goods and services such as housing. Further, the project of realising the Internal Market has been characterised by scepticism towards any nonmarket based regulation. Judicial enforcement of the economic freedoms enshrined in the Treaty has frequently rendered inapplicable national regulation that counteracted market principles. Not infrequently, this has then paved the way for EU level regulation, and subsequent re-regulation at national level, but this lies beyond the ambit of the Court’s activities. From the perspective of adjudicating the internal market, the cleavage would develop between spontaneous regularisation, often imposed unilaterally by those dominating a market, and deliberated rulemaking either in public arenas or based on negotiation on the basis of equalised market powers, e.g. through industrial democracy or cooperative activities in other markets than employment. These cleavages can of course occur at national levels as well as at EU levels. Considered from the EU perspective, the additional question arises at which level any conflict should be resolved. In answering the question whether existing EU rules from the Treaties or secondary law, possibly complemented by general principles of law, are applicable, the Court implicitly also positions itself on the question whether this conflict warrants an EU level solution or should be left to national institutions. Also, regional regulation or even a mixed approach may be found to be adequate. 15 In the recent surge in inner-EU migration following Eastern Enlargement between 2000 and 2007 an estimated 4.5 million citizens moved from Member States having acceded to the EU from 2004 to a Member State that already was a member in 2000 (European Integration Consortium 2009). 16 As Fligstein has exposed, the former category has more opportunities to relate to EU law and policy, and as a consequence has a more intense identification with the EU (Fligstein 2008). Schiek 162 Figure 1: Social Ideals of EU Courts Source: Own elaboration. These three paradigmatic dichotomies are potentially characteristic of any transnational or national project aimed at establishing socio-economic integration. With increasing diversity of the European Union, resulting from the massive Eastern Enlargement and planned newer enlargements, it is also likely that disputes will arise between Member States and national actors on the best solution to these conflicts. Local dwellers may amass in some states, while others produce more free movers, some societies may lean towards commercialisation, whereas others prefer a higher level of social justice. Above all, deliberated rules – in public or societal spheres – may be challenged by those who prefer to rely on market rule. Dispute around these social ideals is set to increase along with socio-economic diversities. Accordingly, the social ideals represented in the Court’s case law can be expected to become decisive more frequently, and to differ in response to these diverse views. Thus, they need to be specified for analysing discourses in case law on a specific socio-legal field. Socio-legal fields warranting such an analysis should also offer opportunities to assess all these dimensions. Commercial rule Social justice Free movers Local dwellers Spontaneous rule (“markets law”) Deliberated rule (public or negotiated self-regulation) EU versus national or regional level Social Ideals of the Court of Justice of the European Union 163 III. The Court’s Social Ideals Relating to Industrial Relations For this chapter, the chosen socio-legal field is industrial relations, i.e. relations between management and labour. This field first of all encompasses all the cleavages sketched above. The taming of raw market forces by deliberated rules is one of the main motives of industrial relations. This implies the aim imbuing the employment relationship, as a relationship ruled by commercial motives with social justice. The medium by which marketization should be humanised is acceptance of industrial action as a means for employees to convince employers to conclude collective agreements in order to enable employees to evade a “race to the bottom” by agreeing employment conditions individually. Further, some of the facts which came before the Court after Eastern Enlargement indicate that there are some tensions between free movers and local dwellers in this field: thus, in the Rüffert case, Polish providers wished to exploit wage differences between Poland and Germany in order to enter markets beyond Polish borders. In this case, as in the Laval case, local workers intended to defend their wage levels against foreign workers accepting (much) lower wages, possibly motivated by higher unemployment and lower costs of living in their home countries. This sketch is explained next, followed by a summary of expected social ideals in this field, and analysis of relevant case law from 2004. 1. Industrial Relations and Law in Europe The employment relationship has long been subject to diverse mechanisms to negotiate conflicting interest against the background of collective organisation and industrial conflict. As a result, (western) European labour markets are embedded in the relation between management and labour, industrial relations. “Industrial relations” comprise institutionalised interaction between management and labour. The EU institutions also refer to the “EU social partners”, in line with usage in languages other than English. These are also embedded in law, albeit to different extents in different national traditions. The subject of industrial relations thus analyses the way in which “divergent interests” between “workers, employers and governments” are “expressed and reconciled” (Schregle 1981: 27), and the subject of collective labour law analyses what the law contributes to this activity. Collective labour law complements and replaces the individual employment contract and the unilateral employers’ prerogative in the day to day conduct of this relationship. The principal aim of this is not only to remedy the structural inferiority of the individual (would-be) employee, but also to overcome collective action problems among employees in defending their common interests. The idea that collective bargaining between the two sides of industry is an adequate and respected response to otherwise “unacceptable labour market outcomes” (Bercusson & Estlund 2008: 1) is increasingly being challenged. Among others, it is often maintained that industrial relations are so deeply embedded in specific national traditions that they are weakened by the existence of employers based in many jurisdictions (multinational companies) and able to change the subject and location of their business rapidly (Scharpf 2003). In addition, it is questioned whether every employee can still be subsumed under the notion of a dependent worker, from which the suggestion is derived that some employees’ inter- Schiek 164 ests coincide with those of management (Stone 2008: 126-127). Specifically in the EU, a clash is observed between “market driven branches of law” and labour law (Bruun & Hepple 2009). This creates a particularly interesting scenario, because the EU itself has limited competences in the field of collective labour law and industrial relations: it cannot legislate on industrial action and wage levels (Article 153 (5) TFEU), but possesses a competence for workplace representation and arguably also collective agreements (Article 153 (1) f TFEU, Ales 2009). In the resulting web of secondary EU law and potential clashes between EU economic freedoms and industrial relations at national and emerging EU levels, there is ample scope for the Court to adjudicate conflicts for which the law is more than indeterminate, and to rely on social ideals in the process. In the absence of any developed EU level rules for industrial relations and collective labour law, national paradigms can become decisive, and these differ vastly.17 Industrial relations are often (but not always) aimed at establishing collective agreements, which can establish a frame for relations between trade unions and employers as well as regulate employment conditions. As a consequence, collective agreements frequently combine two elements: on the one hand rules only applicable to the parties to the agreement (i.e. trade unions and employers), and on the other hand rules aiming to govern employment conditions, above all wages. In some legal orders, these latter rules bind employers and employees as a piece of legislation would (“normative effect”). A collective agreement thus constitutes a hybrid between contract and legislation. In some national traditions, the normative part of collective agreements is routinely endorsed by state legislation or ministerial act, approximating the collective agreement to other employment legislation. In other traditions, the autonomy of the collective agreement is an important principle, and in some Member States this autonomy is guarded by the absence of any legislation on effects of collective agreements. These different concepts correspond to different social ideals regarding employment: the legislative approach to collective agreements relieves the two sides of industry from maintaining procedures to enforce or supervise collective agreements, and supports a model of public rather than autonomous regulation. Traditions insisting on bargaining and contractual autonomy can be understood as resting on a social ideal of autonomous social spheres, where state intervention is the last resort, if permissible at all. These models are dependent on high unionisation levels and the legality of aggressive collective industrial action, although the number of working days lost in strikes is not necessarily high (Vandaele 2011). Thus, collective bargaining in practice lies between two ends of a continuum between state legislation and autonomous regulation. Further industrial relations may be based on a conflictive or a cooperative model. In a conflictive model the two sides of industry are not traditionally engaged in building common institutions and expansive modes of negotiation, but rather engage in collective action for even minor conflicts. A cooperative model often goes hand in hand with common institutions such as co-determination committees. Both models can allow for industrial action or rather regulate and restrict it. As the term “industrial democracy” suggests, industrial relations can be perceived as a model of governing a partition of society in an autonomous way, which offers an al- 17 For a historical overview see Jacobs 2009, for a legal comparative overview see Schiek 2005: 30- 40, on industrial relations in the post-2004 Member States see Meardi 2012. Social Ideals of the Court of Justice of the European Union 165 ternative to government rule legitimised by parliamentary democracy. To this extent it can be based on the social ideal of democratising all spheres of society. 2. Expected Parameter for the Court’s Social Ideals on Industrial Relations EU case law concerning industrial relations will concern national or EU level collective agreements and their compatibility with EU Treaty law or directives. These conflicts can emerge before national courts, or the Commission may bring infringement procedures against a Member State whose institutions or regional authorities conclude collective agreements which the Commission finds in conflict with EU law. Further, the Court can be challenged to consider the role of trade unions if they make their voice heard in Commission actions on state aid or other competition law rules. Finally cases on industrial action have been referred to the Court when employers challenged the legality of industrial action relying on their economic freedoms embedded in EU law. As there is no finite EU law on industrial relations, we must expect social ideals to become relevant which are somehow related to these contradictory national traditions. Accordingly, we expect a multitude of social ideals. Corresponding to the ambiguous character of collective agreements between contract and legislation, we expect a “regulatory ideal” to be juxtaposed to an “autonomy ideal”. The regulatory ideal perceives of collective agreements as devolved legislation. Accordingly, they will be equated with legislation, and possibly the Member States will be held responsible if these agreements violate EU law. In the case of EU level social partner agreements under Article 155 TFEU, the Court will not hesitate to interpret these in the same way as legislation. Thus, the motives of the partners to the agreements will not be decisive, for example. The autonomy ideal, by contrast, perceives of the two sides of industry as constituting an autonomous sphere for managing industrial relations. Collective agreements resemble contracts more than legislation. Under this perception, collective agreements would not necessarily be bound by EU law to the same extent as legislation. Rather, a degree of autonomy conceded to other parties to contracts would also be extended to parties to collective agreements. Also, under the autonomy ideal, a collective agreement can only bind the parties that signed it, while the regulatory ideal might be seen to require extension of collective agreements to all workers or even across industries. Further, collective agreements can be perceived as offering opportunities for flexible regulation, adapted to the needs of specific sectors or even individual undertakings, (flexibility ideal) or their virtue can be seen in creating homogeneous conditions of employment in as large an area as possible (homogeneity ideal). The flexibility ideal would be evident in cases where the Court gives the two sides of industry scope to agree on rules that deviate from legislation. It would also be evident where the Court acknowledges solutions found by management and labour because the process of collective bargaining is assumed to result in a just balancing of potentially conflicting interests. In this regard, the flexibility ideal is related to the autonomy ideal. The homogeneity ideal would, by contrast, reflect the advantages of regularisation of employment conditions. It would stress the need for employers and employees as to what to expect, and possibly favour collective agreements with wide scope of application. It would be Schiek 166 sceptical towards small bargaining units, or towards any rights of employees or employers to start a new industrial conflict when a collective agreement exists already. The social ideals discussed so far have focused on the regulatory capacity of collective agreements and collective bargaining processes. Industrial relations are also characterised by the tone of interaction between the two sides of industry. This interaction can be based on an ideal-typical conflictive or cooperative relationship between the two sides of industry. In a conflict ideal, trade union activities are expected to impinge on the economic interests of employers if they defend workers’ interests efficiently. Thus, economic pressure, loss and perhaps even closure of business are seen as normal occurrences in the course of industrial relations. Correspondingly, collective agreements can seriously restrict the possibility for undertakings to make profit, and may even relate to genuine business decisions such as location of the business, choice of providers or configuration of products. At the same time, trade unions can also be subject to pressure by employers. A conflictive ideal can also accept a plurality of trade unions, which consequently might be in competition with each other. A cooperative ideal, on the other hand, would expect the two sides of industry to minimise the consequences of the collective bargaining system that seem to clash with market principles or genuine business decisions. In particular, industrial action would be viewed as the last resort for both sides of industry. While this ideal still accepts the autonomy of the collective bargaining process, it also leaves scope for curbing it by legislation or court orders. The conflict/cooperation dichotomy can be expected to relate to the core principles of the internal market – safeguarding economic freedoms of business and the EU competition rule – in particular. In their conflictive version, industrial relations have the capacity to inhibit market principles, even beyond employment issues in a narrow sense: collective action may be used to force employers into actions that are contrary to market and competition principles beyond their relation with employees. 3. Case Analysis In order to expose potential social ideals relating to industrial relations, all cases decided by the Court from Eastern Enlargement (May 2004) until the end of June 2011 were analysed: altogether 36 cases.18 This is a relatively high number of cases, given the fact that industrial relations are not typically regulated at EU level. All three social ideals sketched above occurred in the cases analysed. There is some overlap, as some cases touched on more than one ideal. In overview, the Court in most cases considered collective agree- 18 Case selection was based on the Court’s electronic database which provides a search function. As a first step, all cases by the Court (disregarding the General Court and the Civil Service Tribunal, against whose rulings parties can appeal to the Court) containing the catch words “strike” “collective agreement” and “trade union” were selected. The resulting 65 cases were then read in order to see whether industrial relations actually were relevant. Cases using the word “strike” in other fields than industrial relations, as in “strike a balance” were disregarded, as well as cases where the term “collective agreement” only occurred within quotes of national or EU legislation. Further, an insider trading case involved trade union representatives (Case C-342/02 Knud Grøngaard), and an employment law case where a trade union represented its member (Case C-220/02 ÖGB) were screened out, as the subject matter was company law and individual employment law. The cases are listed in an annex to this chapter, with reference and categorization. Social Ideals of the Court of Justice of the European Union 167 ments as regulatory devices. The other paradigms only became relevant in a limited number of cases, which however, in their analysis provide interesting discourses. Table 1: Overview of Case Analysis* Regulatory ideal Autonomy ideal Considered as legislation: 2, 3, 4, 5, 7, 9, 10, 11, 18, 20, 22, 26, 31, 36 Interpreted like statutes (EU level agreements) 28, 35 Workers protected against consent given by trade union 1, 8 Some scope of autonomous regulation accepted 17, 23 Seen as contractual instrument 23, 24, 29, 32 Negative freedom of association ( employer) 5, 15 Homogeneity ideal Flexibility ideal 13, 14 Allows curbing workers’ rights 11, 20, 28 Cooperative, market adapted industrial relations Some steps towards conflictive Conflictive industrial relations, transcending markets 12, 13 26, 30, 31 * See Annex for specification of cases. Source: Own elaboration. a) Collective Agreements as a Regulatory Device While the Court never explicitly refers to the regulatory function of collective bargaining and industrial democracy, clearly the assumption that collective agreements are just another element of regulating employment conditions underlies much of the case law. This principle was first pronounced in relation to public employers relying on principles endorsed in collective agreements which qualified as indirect discrimination against women,19 and later transferred to cases of indirect discrimination on grounds of nationality.20 While in these cases the Court did not discuss the matter substantively, they are just referred to in any cases relating to public employers.21 Without further ado, the same principle is transferred to private employers. For example, the Court states in a case relating to the question how workers must be paid during annual leave under the 19 E.g. Cases C-184/89 Nimz v Freie und Hansestadt Hamburg [1991] ECR I-297, paragraphs 17-20; C-33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR I-2591, paragraphs 118-120. 20 Case C-15/96 Schöning-Kougebetopoulou [1998] ECR I-47, paragraphs 29-35. 21 Case C-196/02 Nikoloudi; Case C-356/09 Kleist; C-537/07 Goméz-Limón Sánchez-Camacho (where the claimant was employed in the private sector, but suffered detriment from a decision of the national institution for social security); Case C-356/09 Kleist, paragraphs 27 and 30 (the application of a discriminatory collective agreement by a public employer qualifies as discrimination by this employer itself); Case C-284/02 Sass. Schiek 168 working time directive that “it does not matter whether such a regime of paid annual leave is or is not based on a contractual arrangement”, when the “contractual arrangement” is actually collectively agreed under English law.22 In other cases, it is just assumed that a collective agreement applied in the private sector is measured against a directive.23 Relating to social partner agreements at EU level, the Court specified that these are to be treated as legislation as soon as they have been implemented by EU directive, which is the EU level equivalent to the general extension of a collective agreement.24 As all this is not supported by much reasoning, we can only conclude that the Court relies implicitly on the fact that collective agreements, just as legislation, pursue the purpose of regulating the employment relationship. This view may be defensible where the collective agreement has been implemented by state legislation, or is only qualified as a collective agreement without actually being based on negotiations between management and labour.25 Partly, the Court also treats collective agreements as just another form of regulation, stating that “Article 45 TFEU (…) extends to rules of any other nature aimed at regulating gainful employment in a collective manner”, which the national court has “to interpret and apply (as) domestic law in conformity with the requirements of European Union Law”.26 In other cases, collective agreements are seen as imposed upon workers by employers from the private sector.27 In one case, the Court even stated that workers as the weaker party in the employment relationship will be better able to defend their rights if negotiating individually with their employer than if represented by their trade union: “the Court concluded that the consent given by trade union representative in the context of a collective or other agreement is not equivalent to that given by the worker himself. (…) Any derogation from those minimum requirements must therefore be accompanied by all the safeguards necessary to ensure that, if the worker is encouraged to relinquish a social right which has been directly conferred upon him by the directive, he must do so freely and with full knowledge of all the facts.”28 This last quote demonstrates the logical culmination of placing collective agreements and legislation into the same category: the individual worker always needs to be protected against legislation as well as collective agreement, and there is not even the theo- 22 Case C-131/04 et al. Robinson-Steele et al., paragraph 62. The national Court had, however, considered that the fact that the rule was collectively agreed lent it some legitimacy (paragraph 42). 23 Cases C-277/08 Vincente Pereda, C-116/08 Meertz. 24 Case C-537/07 Goméz-Limón Sánchez-Camacho, paragraph 34; C-149/10 Zoi Chatzi, paragraph 25. 25 Case C-325/08 Olympique Lyonnais SASP paragraph 32 (the relevant Charter was stipulated by statutory bodies concerning the administration of sport in France in cooperation with a trainers’ association, an association of football clubs and some employee representation, as required by national legislation on sport generally). See also Case C-10, 11/02 Fascicolo et al. on a “collective agreement” stipulated by Italian legislation. 26 Case C-379/09 Casteels, paragraphs 19 and 33. 27 Case C-109/09 Lufthansa by implication. 28 Case C-397/01 Pfeiffer paragraphs 81 and 82. Social Ideals of the Court of Justice of the European Union 169 retical possibility that a collective agreement may constitute a more adequate representation of workers’ interests than just a unilateral decision by an employer. Similar ideals seem to underlie case law on the implementation of EU directives by collective agreement, as is usual in Denmark. The Court decided in the 1980s29 that autonomous implementation of directives does not “discharge the Member State from the obligation of ensuring (…) that all workers are afforded the full protection provided for” in the relevant directive.30 Accordingly, the parties to a collective agreement are seen as agents of the Member State, if implementing a directive, as expressed in the same ruling: “The Community legislature (…) has authorised the Member States to permit employers’ and workers’ representatives to introduce, in particular through collective agreements, the provisions required”. This also means that the parties to a collective agreement are bound by any decision as to the level of protection made in state legislation applying to non-unionised workers. Accordingly, Danish trade unions are required to relinquish the policy by which unionised workers’ representatives enjoy higher levels of protection than non-unionised ones.31 Thus, even if collective bargaining is recognised as a means of creating standards, it “is for the Member States to choose the normative technique which they regard as most appropriate”,32 and whether an employer can rely on derogations made in collective agreements is a matter of domestic law entirely.33 However, as a matter of EU law, collective agreements implementing any part of a directive must be “consistent with general principles of European Union law which includes the principle of legal certainty.” Altogether, the social ideal underlying the regulatory paradigm is that parties to a collective agreement are agents of the Member States, and the reining in of their negotiations in order for the agreements to comply with EU legislation is a mere domestic problem, which Member States are obliged to “solve” in order to fulfil their EU Treaty obligations.34 b) Autonomy of Collective Agreements At times the Court has also acknowledged the relative autonomy of the collective bargaining process. For example, in the case Olympique Lyonnaise, the Court referred to “collective agreements and other acts concluded or adopted by private persons”,35 before focusing on the regulatory function of the agreement. The autonomy paradigm had practical consequences in the Werhof ruling, concerning the question whether an employee after a transfer of an undertaking can benefit from salary rises under collective agreements by which his new employer is not bound for lack of affiliation to any of the signatories. Directive 77/187/EEC provided for the terms of a contract of employment to remain 29 Case 143/83 Commission v Denmark [1985] ECR 427, paragraph 8. 30 Case C-306/07 Andersen, paragraph 25. 31 Case C-405/08 Holst, paragraph 62. 32 Case C-227/09 Accardo, paragraph 52. 33 Paragraph 54. 34 See also case C-119/04 COM v Italy, paragraphs 25/26, 31. 35 Paragraph 31, see also paragraph 19 of the ruling in Casteels. Schiek 170 unchanged after any transfer. If that contract referred to a collective agreement, and the non-unionised employee was not bound by that agreement, the contractual term was still transferred. The question before the Court was whether this was a “dynamic” transfer, covering future wage rises as well. In order to protect the interests of the transferee (i.e. the employer; paragraph 31), the Court stressed that “freedom of association, which also includes the right not to join an association (…) is one of the fundamental rights (…) protected in the EU legal order” (paragraph 33). It rejected the dynamic interpretation because “that would mean that future collective agreements apply to a transferee who is not party to a collective agreement” (paragraph 34). Similarly, the contractual nature of collective agreements was stressed in the Juuri case, relating to a transfer of an employee working in the staff canteen covered by the collective agreements for the metal industry to an employer covered by the collective agreement for the catering sector with the lower wages typical of the female dominated employment markets applied, leading to a loss of € 300 in monthly wages. Ms Juuri terminated her contract after requesting in vain that her pay should continue to be determined by the metal worker collective agreement, and applied for compensation as if the dismissal had been caused by the employer. Now, the special element here was that the collective agreement for the metal workers had expired on the date of the transfer. The Court thus considered that the employer had not done anything unlawful, stating that the transfer directive “cannot derogate from the intention of the parties as expressed in the collective agreement.” It stated that “if the contracting parties have agreed not to guarantee certain working conditions beyond a particular date, (…) Directive 2001/23 cannot impose on the transferee the obligation to observe those (...) after the agreed date of expiry” (paragraph 33). Similarly, the Court has also stressed that European level social partner agreements are only binding between the parties to the agreement.36 Obviously, this paradigm contrasts with the regulatory paradigm – a contrast that mirrors the plurality of legal traditions around collective agreements. c) Achieving Flexibility Through Collective Bargaining In three recent cases, the Court has relied on the capacity of collective bargaining to provide flexibility of employment conditions. This paradigm was first endorsed in the Palacios de la Villa case, concerning the question whether the compulsory dismissal of a Spanish worker at the age of 65 was compatible with the prohibition of age discrimination. The basis for this dismissal was the collective agreement for the textile trade in Madrid, which provided that “In the interest of promoting employment, it is agreed that the retirement age will be 65 years”. This again was based on national legislation which allowed for collective agreements to provide for compulsory dismissal at retirement age if they stated domestic employment related reasons. Discussing whether this exception to the prohibition of age discrimination was justified under Article 6 (1) Directive 2000/78, the Court inter alia relied on the fact that the derogation was contained in a collective agreement. It stated “the relevant national legislation allows the social partners to opt, by way of collective agreements – and therefore with considerable flexibility – for application of the compulsory retirement mechanism so that due account may be taken not only of the overall situation in the labour market concerned, but also of the 36 Case C-395/08 Bruno & Pettini, paragraph 44. Social Ideals of the Court of Justice of the European Union 171 specific features of the jobs in question” (paragraph 74). This reasoning was repeated almost literally in the Rosenbladt case, also on compulsory dismissal at age 65 based on a collective agreement.37 In both these cases, the flexibility paradigm results in reducing the level of statutory protection for workers. In the Mono Car Styling ruling, the Court consequently held that collective bargaining might require restricting individual rights. The case concerned a collective redundancy affecting 30 workers, which was based on negotiations with the works council resulting in a plan for redundancy payments. Nevertheless, 21 workers challenged the redundancies individually. Questions before the Court concerned the relation of individual and collective rights under the relevant Directive (Directive 98/59) inter alia. In this regard, the Court stated that the “the right to information and consultation (…) is intended for workers’ representatives and not for workers individually”, (paragraph 38) and that workers’ representatives were best placed to achieve objectives such as “avoiding collective redundancies, reducing the number of workers affected or mitigating the consequences” (paragraph 40). No further explanation is given why this is the case. One is left to guess that the Court promotes collective representation in order to gain flexibility for overcoming crisis without having to deal with conflicting individual interests. d) Homogenising Employment Conditions Through Collective Bargaining In slight contrast to this, the Court also referred to the need for collective agreements to award homogeneous social protection in two cases, implicitly also referring to the function of collective agreements to standardise employment conditions and harmonize conditions under which employers compete on labour markets. For example, in the Rüffert case, the Court held that a public body cannot justify a contract condition of paying regional wages with the following argument: “since (…) the rate of pay (…) is applicable (…) only to a part of the construction sector falling within the geographical area of that agreement since (…) that agreement has not been declared universally applicable” (paragraph 39). The Court concludes that such a protection cannot be necessary, as it is not awarded to all workers. Similarly, in the Laval case, the Court viewed the collective action undertaken by the trade unions as specifically unbearable because “those undertakings may be forced (..) into negotiations with trade unions of unspecified duration at the place where the services are to be provided” (paragraph 100) and objected to the Swedish “national context”, among others because it was “characterised by a lack of provisions, of any kind, which are sufficiently precise and accessible that they do not render it impossible or excessively difficult in practice for such an undertaking to determine the obligations with which it is required to comply as regards minimum pay” (paragraph 110). These two remarks are not linked to any provision of Directive 96/71, which was central to the case, or the freedom to provide services as such. The Court seems to pity the foreign service provider because the duration of the negotiations and the exact conditions on which an agreement will be made are not a calculable risk. In striving for large territorial 37 Case C-45/09 Rosenbladt, paragraph 49. See also Opinion of AG Pedro Cruz Villalón in Case C- 447/09 Prigge, paragraphs 78-85. Schiek 172 reach of collective agreements and homogeneity of employment conditions, as well as for the avoidance of any insecurity about the outcome of collective bargaining, the homogeneity paradigm is in a certain tension with the flexibility paradigm. e) Conflict Versus Cooperation – Paradigmatic Tensions With the Internal Market So far, the paradigmatic orientation relates to the regulatory capacity of collective agreements. In recent cases, industrial relations were approached in a more comprehensive manner, partly with a view to industrial action. In these cases, the Court implicitly accepts a certain autonomy of the bargaining process, even if it subjects the resulting collective agreement or the bargaining process itself to judicial control. These cases also involve tensions between economic freedoms and competition and state aid rules of the internal market and the right to organise, bargain collectively and take collective action on the part of the employees and their trade unions. This rather new series of cases started in 2007 with the Viking ruling on 11 December 2007, and finished with the AG2R ruling of 11 March 2011, and will be discussed chronologically. The Viking case concerned the attempt of a ship owner to reflag a vessel from Finland to Estonia in order to lower wages, and the threat of industrial action by the Finnish Seamen’s Union (FSU) combined with a circular sent by e-mail by the International Transport Workers Federation (ITF), asking other national seafarers’ unions to refrain from engaging in collective bargaining with Viking. As the Estonian trade union honoured its former promises, Viking could not establish a new collective agreement, and was unable to employ unionised Estonian seafarers. While this conflict had been settled in December 2003, the employer revived its plans once Estonia was an EU member, relying on its newly acquired right to freely establish in Estonia. The novelty in these questions was that the Court for the first time had to consider whether a circular by an association of a trade union and “collective action such as that envisaged by the FSU” (paragraph 72) constituted restrictions of freedom of establishment, and whether these could be justified. The Court found a restriction of freedom of establishment, and held that the national court would have to decide whether it was justified, and that only the protection of workers, but not any fundamental right to take collective action could be used for this. This answer could not be fully derived from precedent, the Treaty or secondary law, which suggests that the Court drew on other sources. In this regard, the Court stated that “collective action (…) may be the trade unions’ last resort to ensure the success of their claim to regulation the work of (…) employees collectively” and “must be considered as inextricably linked to the collective agreement” (paragraph 36). This argument points to a social ideal of cooperative industrial relations, where industrial action is only the last resort. In line with this, the Court holds that the exercise of industrial relations, although supported by a fundamental right (paragraph 44) must comply with the employers’ freedom of establishment (Article 46 TFEU). The main argument supporting this is that “it cannot be considered that it is inherent in the exercise of trade union rights and the right to take collective action that those fundamental freedoms will be prejudiced to a certain degree” (paragraph 52). This last view seems to convey a peculiar perception of industrial relations. Usually, the aim of collective action is to exert economic pressure on the employer, which will also impinge on its economic freedoms. Possibly the Court indicated that it holds such indus- Social Ideals of the Court of Justice of the European Union 173 trial conflict only to be legitimated within national borders: after all, it states that “collective action (…) envisaged” by a trade union may “have the effect” of restricting economic freedoms “in as much as” it prevents an employer “from enjoying the same treatment in the host Member State as other economic operators established in that state” (paragraph 72). One wonders why it constitutes discrimination if a Finnish ship-owner is being threatened with strike just as any other Finnish ship-owner would be. Possibly the Court wanted to refer to the fact that the vessel, once re-flagged to Estonia, would no longer be Finnish. However, at the time of the threat of industrial action the Rosella was a Finnish vessel, owned by a Finnish company. A quote from the Rüffert case complements the indicators of a specific social ideal for transnational collective relations here. There the Court states that the limitations it imposes upon extending regional collective wage agreements going over and above the statutory minimum wage on foreign service providers are “without prejudice to the right of undertakings established in other Member States to sign of their own accord collective labour agreement in the host Member State, in particular in the context of a commitment made to their own posted staff”.38 Again, extremely cooperative industrial relations are being envisaged here, where employers sign collective agreements without any pressure exerted on them. Next the Court established a restriction. The factual base is rather narrow, as the mere threat of a strike and the inability to staff the vessel with unionised seafarers appear relatively modest threats. Finally, the Court turns to justification, stating that this must rely on the objectives of the planned industrial action, which must aim to “protect and improve (...) terms and conditions of employment”. In the Court’s view, the ITF campaign against “flags of convenience” cannot possibly fall into that category. By that campaign the ITF wishes to ensure that an employer does not take advantage of low-wage regimes while holding its main assets in a high wage country. The Court maintains that theoretically a trade union could apply to have their right to bargain defended even if the flag flown on the vessel would lead to more beneficial wages for the crew.39 This reasoning betrays a certain detachment from the realities of wage setting in maritime trade: no employer would fly a foreign flag on its vessel that would force it to pay higher wages. Thus, it appears that the social ideal behind the scarce reasoning of the Viking case is that trade unions should not seek to impinge on employers’ transnational economic interests, as employers will sign collective agreements “of their own accord” in the end. The Laval case had a number of legal facets. In this context, only statements concerning industrial action are of interest, though. In this regard, the story behind the Laval case is also the undercutting of labour costs by importing labour from a low wage to a high wage country: a Swedish company, which was owned by a Latvian company, won a tender to build a school in Sweden. Its calculations were based on the plan that the Latvian parent company would hire out to the Swedish company workers who would be paid Latvian wages. This was opposed by the Swedish trade unions, who, after negotiating for five months with the Latvian company, engaged in actual industrial action, including a boycott of the building site via sympathy action. This left the Latvian workers on a building site without light and heating in late November in northern Sweden, led to the bankruptcy of the Swedish daughter of the Latvian company, and to a spectacular 38 Case C-346/06 Rüffert, paragraph 34. 39 Case C-438/05, paragraph 89. Schiek 174 case before the Court which changed Swedish employment law profoundly. Like the Viking case, the Laval case was mostly moving on ground which the Court had already conquered. Still there were a few lacunae which the Court needed to fill. Its arguments suggest that it was drawing on social ideals. The Court had to consider the question whether the regulation of labour relations through truly autonomous collective agreements is acceptable to it, and whether – instead of Member State legislation and administration – the dynamics of industrial relations may be relied upon for safeguarding workers’ interests in cases of posting alongside or in implementation of Directive 96/71/EC. It was also confronted with the Swedish system of industrial relations in full swinging action for the first time, which may have been a mild shock for the non-Scandinavian judges. It is also interesting to note that the Court – although the facts speak of massive collective industrial action which made the economic activity envisaged by Laval’s Swedish daughter impossible – refers to the right to take collective action as being sufficient to establish a restriction: “the right of trade unions of a Member State to take collective action (…) is liable to make less attractive or more difficult” for foreign undertakings “to carry out construction work in Sweden”. This seems linked to the fact that an undertaking may be “forced (…) into negotiations with the trade union of unspecified duration”, (paragraph 100) because generally the Swedish “system requires negotiation on a caseby-case basis, at the place of work, having regard to the qualifications and tasks of the employees concerned.”(paragraph 69) The Court portrays Swedish trade unions as being able to impose collective agreements on employers, presumably without any negotiation, and is concerned that trade unions may “attempt, by means of collective action in the form of a blockade (…) to force a provider of services established in another Member State to enter into negotiations with it” (paragraph 108). This seems to indicate that the social ideal prevalent in this composition of the Grand Chamber is one of peaceful industrial relations, where negotiations are not underpinned by strike action generally. The next case in chronological order was the 3F case, decided in July 2009. It too concerned employment conditions of seafarers: a Danish trade union confederation challenged a Commission decision not to raise objections against Danish legislation on international flagging register. While most European countries today allow their ship owners to fly their flag on vessels where non-EU seafarers are paid under non-EU labour law, Denmark had gone a step further and also offered these seafarers massive tax exemption, thus allowing their employers to pay even lower wages. 3F considered that this constituted state aid incompatible with the internal market. It also reasoned that it was concerned under Article 108 (2) TFEU and thus had standing to raise a complaint, because its competitive position on the market of trade unions was affected. The Court held that the claim by 3F was admissible, because there is competition between trade unions. This case is another illustration of the perception of industrial relations by the court, which are seen as modelled upon a market. However, the Court acknowledged that industrial relations may be conflictive – even if the perceived conflict is between different trade unions of a pluralist system. In July 2010, the Court decided on an infringement action by the Commission versus Germany, which addressed a number of collective agreements concluded between trade unions and municipalities. These agreements were not achieved by industrial action, but Social Ideals of the Court of Justice of the European Union 175 were relatively amicably concluded in the statutory framework of the “Riester-Rente”.40 This scheme aimed at increasing coverage of German employees by private pension plans (so called third pillar pensions). Inter alia, it allowed for collective agreements to determine the provider of third pillar pensions. The Commission claimed that the municipalities, instead of concluding collective agreements, should have applied directives on public procurement. These directives again aim to safeguard freedom of establishment and freedom to provide services – thus, this was another conflict between collective bargaining and economic freedoms. As in Laval and Viking, the Court held that the collective bargaining process, although protected by a fundamental right, was bound by the economic freedoms guaranteed by the Treaties. Repeating the hypothesis that “it cannot be considered that it is inherent in the exercise of the freedom of management and labour and the right to bargain collectively that (…) freedom of establishment and freedom to provide services (..) will be prejudiced”, the Court sets out to consider whether a “fair balance was struck in the account taken of the respective interests involved, namely the enhancement of the level of retirement pensions (…) and attainment of freedom of establishment and freedom to provide services” (paragraph 52). Again, it balances not the autonomy to conclude a collective agreement, but rather the objectives pursued by it. However going beyond Viking and Laval the Court seems ready to consider whether its judgment might “affect the essence of the right to bargain collectively”.41 The essence of this right is not specified, though. Thus, while the historical background of a human right to bargain collectively lies in safeguarding a process enabling workers to overcome the structural imbalance of labour markets and to establish self-governance in economic life,42 the Court focuses on an evaluation of the substantive goals of every single activity, making its admissibility contingent on the judges’ perception of its adequacy. In March 2011, the Court had to decide upon the relation of collective agreements concerning social security and the prohibitions of cartels and abuse of a dominant market position (Articles 101, 102 TFEU) in the AG2R Prévoyance case. French legislation provides for the conclusion of collective agreements establishing supplementary health insurance schemes managed by a designated provident society. These collective agreements can be made compulsory for all employees upon application. One such scheme exists for the bakery sector. The question before the Court was whether this violates EU competition law, although there is no provision for any exemption from the scheme. The Court reaffirmed its decisions in Albany and van der Woude43 in stating that collective agreements do not fall into the scope of application of Article 101 TFEU if they are achieved by collective bargaining and aim substantively to improve working and employment conditions.44 Thus, as in relation to the economic freedoms, the protection of collective agreements against competition law depends on their purpose. While there is no proportionality test in relation to Article 101 TFEU, the Court also potentially subjects the scheme to control under Article 102 TFEU. This depends on whether the 40 The name of the scheme derived from the minister of labour in office when it was adopted. 41 Paragraph 49, see on this aspect Syrpis 2011. 42 See on the general background Jacobs 2009, from a critical perspective Fudge 2011. 43 Cases C-67/96 Albany [1999] ECR I-5751 and C-222/98 van der Woude [2000] ECR I-7111. 44 Case C-437/09 paragraphs 28, 29. Schiek 176 scheme constitutes an undertaking, and, if this is answered in the positive, on the applicability of Article 106 (2) TFEU for justifying the exclusive right granted to that undertaking. For both these questions, it is immaterial in the view of the Court whether the scheme is established by collective agreement or not. This latest decision does leave the final decision to the national court. In contrast to the earlier ones, it does not engage with the nature of collective agreements at all. Even for the privileging of collective agreements under the prohibition of cartels, it simply relies on former case law, without re-affirming the human rights and social policy background expanded upon in Albany and van der Woude. From the perspective of the Internal Market, conflicts between employers’ and trade union rights played out as tension between national and EU level. The case law is contradictory, oscillating between protecting established principles of the internal market and recognising the human right of workers and their trade unions to take collective action and rely on collective bargaining rather than on individual contract negotiations. However, the Court is somewhat reluctant to acknowledge the antagonism underlying any industrial conflict. Instead of accepting the conflictive nature of industrial relations, it bases its judgments on the social ideal of cooperative industrial relations – with the cases 3F and COM v Germany as slightly leaning towards accepting the conflictive nature of collective bargaining. IV. Conclusion The foregoing analysis demonstrates that the Court’s case law on industrial relations is widely reliant on social ideals which are only partly disclosed in the Court’s reasoning. Recent debates indicate that the Court is sceptical towards industrial action and collective labour law. The case analysis shows that this is not generally the case. In the overwhelming majority of cases the Court expressed appreciation of the regulatory function of collective agreements. Especially in its case law on non-discrimination and equality, but also more generally in relation to directives in the field of employment law, collective agreements are regarded just as the Court would regard national legislation. Frequently, the Court considers whether a collective agreement is compatible with a directive. If the Court would always consider collective agreements as contracts, this would contrast with its doctrine that directives are not directly binding on parties to contractual agreements. Accordingly, this case law indicates that the collective agreement is at times seen not as a contract, but rather as a piece of legislation. This is appropriate if the collective agreement has been extended by an act of the national government or the Council of the EU. However, the Court also uses this approach on other collective agreements, thus implicitly questioning the autonomy of management and labour, or the autonomy of industrial relations which is so central to the Nordic model. In contrast with this, the Court has at times also appreciated this very autonomy. Interestingly, the six cases where the Court respects the autonomy of collective agreements to Social Ideals of the Court of Justice of the European Union 177 a certain extent relate to secondary EU law. Likewise, the potential of collective agreements to respond flexibly to demands of the labour market or specific branches of industry is acknowledged in relation to secondary EU employment legislation. Finally, the Court had to decide five cases where collective action or collective bargaining conflicted with primary Treaty articles. Here, it overwhelmingly embraced a social ideal of cooperative and peaceful industrial relations. In two cases, however, the Court seemed to acknowledge that industrial relations may be conflictive: in the 3F case this related to interrelations of trade unions among each other. In the AG2R case, the Court accepted that collective agreements can mitigate the reach of EU competition law – but only at the price of judicial control of the contents of the agreement. These social ideals can be related to the three main paradigmatic dichotomies that constitute the parameters for the Court’s social ideals. In accepting collective agreements as regulatory devices rather than as autonomous self-regulation, the Court also acknowledges that “market law” may at times be subjected to regulation. However, where collective bargaining or industrial action impinges on market freedom as protected in the EU Treaties, the Court only leaves a narrow scope for such mitigation of market rules: judicial control of collective bargaining and agreements requires the negotiated order to justify itself under strict standards. To that extent, the social ideals informing case law on industrial action seem to value spontaneous market regulation higher than negotiated self regulation. Also, the rights of free movers (companies and their employees) are supported rather than those of local dwellers – as far as trade unions are concerned. It is difficult to conclude from this limited number of cases whether the Court allows those engaged in industrial relations to strive for social justice at the expense of commercial rule – although the more spectacular cases45 suggest that this may be the case. It seems that the Court has not yet achieved a genuine appreciation of industrial relations – possibly because it has not yet been frequently exposed to this particular element of democracy. This chapter has demonstrated that it is possible to analyse cases with a view to the social ideals represented in their discourses. An analysis of more cases over a longer period would be needed in order to paint a more complete picture and appears as a rewarding endeavour. Annex to Table 1: ECJ cases touching on industrial relations (April 2004 – July 2011) Case Date Parties published Social ideal 1 C-397 et al./01 grand chamber 2004-10-05 Pfeiffer [2004] ECR I-8835 Regulatory 2 C-313/02, grand chamber 2004-10-12 Wippel [2004] ECR I-9483 Regulatory 3 C-284/02 1st chamber 2004-11-18 Sass [2004] ECR I-11143 Regulatory 45 Viking and Laval, for example. Schiek 178 4 C-10,11/02 1st chamber 2004-11-18 Fascicolo and Others [2004] ECR I-11107 Regulatory 5 C-196/02 1st chamber 2005-03-10 Nikoloudi [2005] ECR I-1789 Regulatory 6 C-499/04 3rd chamber 2006-03-09 Werhof [2006] ECR I-2397 Autonomy 7 C-131, 257/04 1st chamber 2006-03-16 Robinson- Steele [2006] ECR I-2531 Regulatory 8 C-465/04 1st chamber 2006-03-23 Honyvem Informazioni Commerciali [2006] ECR I-2879 Regulatory 9 C-119/04 grand chamber 2006-07-18 Commission v Italy [2006] ECR I-6885 Regulatory 10 C-307/05 2nd chamber 2007-09-13 Del Cerro Alonso [2007] ECR I-7109 Regulatory 11 C-116/06 4th chamber 2007-09-20 Kiiski [2007] ECR I-7643 Regulatory 12 C-411/05 grand chamber 2007-10-16 Palacios de la Villa [2007] ECR I-8531 Flexibility 13 C-438/05 grand chamber 2007-12-11 ITWF and FSU v Viking Line [2007] ECR I-10779 Cooperation 14 C-341/05 grand chamber 2007-12-18 Laval un Partneri [2007] ECR I-11767 Cooperation / homogeneity 15 C-346/06 2nd chamber 2008-04-03 Rüffert [2008] ECR I-1989 Homogeneity 16 C-396/07 4th chamber 2008-11-27 Juuri [2008] ECR I-8883 Autonomy 17 C-306/07 1st chamber 2008-12-18 Ruben Andersen [2008] ECR I-10279 Regulatory (versus autonomy} 18 C-350, 520/06 grand chamber 2009-01-20 Schultz-Hoff, Stringer [2009] ECR I-179 Regulatory 19 C-319/07 P 3rd chamber 2009-07-09 3F v Commission [2009] ECR I-5963 Conflict 20 C-537/07 3rd chamber 2009-07-16 Gómez-Limón Sánchez- Camacho [2009] ECR I-6525 Regulatory Social Ideals of the Court of Justice of the European Union 179 21 C-12/08 4th chamber 2009-07-16 Mono Car Styling [2009] ECR I-6653 Flexibility 22 C-277/08 1st chamber 2009-09-10 Vicente Pereda [2009] ECR I-8405 Regulatory 23 C-405/08 3rd chamber 2010-02-11 Holst [2009] ECR I-985 Regulatory (contrasting autonomy) 24 C-325/08 grand chamber 2010-03-16 Olympique Lyonnaise v Bernard [2009] ECR I-2177 Autonomy (contractual notion) 25 C-395, 396/08 2nd chamber 2010-06-10 Bruno and Pettini [2010] 3 C.M.L.R. 45 Autonomy (EU level) 26 C-471/08 3rd chamber 2010-07-01 Parviainen [2011] 1 C.M.L.R. 8 Regulatory 27 C-271/08 grand chamber 2010-07-15 Commission v Germany [2011] All E R (EC) 912 Conflict 28 C-149/10 1st chamber 2010-09-16 Chatzi Regulatory 29 C-45/09 grand chamber 2010-10-12 Rosenbladt [2011] 1 C.M.L.R. 32 Flexibility 30 C-227/09 2nd chamber 2010-10-21 Accardo and Others [2011] 1 C.M.L.R. 44 Autonomy (contractual notion) 31 C-356/09 2nd chamber 2010-11-18 Kleist Regulatory 32 C-444, 456/09 2nd chamber 2010-12-22 Gavieiro Gavieiro [2011] I.R.L.R. 504 Regulatory 33 C-437/09 1st chamber 2011-03-03 AG2R Prévoyance [2011] 4 C.M.L.R. 19 Conflictive 34 C-379/09 3rd chamber 2011-03-10 Casteels Autonomy (vs regulatory) 35 C-109/09 2nd chamber 2011-03-10 Deutsche Lufthansa [2011] All.E.R. (EC) 754 Regulatory 36 C-256, 261/10 2nd chamber 2011-05-19 Barcenilla Fernández Regulatory Schiek 180 References Ales, E. & Novitz, T., (eds.) (2010), Collective Action and Fundamental Freedoms in Europe, Antwerp: Intersentia. Ales, E. (2009), Transnational Collective bargaining in Europe: the case for legislative action at EU level, International Labour Review 148 (1-2): 149-162. Alter, K. (2009), Law and Politics in Europe and Beyond, in: The European Court’s Political Power: selected essays, Oxford: Oxford University Press, 287-303. Azoulai, L. (2008), The Court of Justice and the Social Market Economy, Common Market Law Review 45 (5): 1335-1346. Barnard, C. & Deakin, S. (2011), European Labour Law after Laval, in: Moreau, M.-A. (ed.), Before and After the Economic Crisis. What Implications for the European Social Model, Cheltenham: Edward Elgar, 252-269. Barnard, C. (2008), Social Dumping or Dumping Socialism?, Cambridge Law Journal 67 (2): 262-264. Bercusson, B. & Estlund, C. (2008), Regulating Labour in the Wake of Globalisation: New Challenges, New Institutions, in: Bercusson, B. & Estlund, C. (eds.), Regulating Labour in the Wake of Globalisation, Oxford & Portland (Oregon): Hart Publishers, 1-18. Blanpain, R. & ĝwiątkowski, A. (2009), The Laval and Viking Cases: Freedom of Services and Establishment v Industrial Conflict in the European Economic Area and Russia, Deventer: Kluwer. Bourdieu, P. (1987), The Force of Law: Towards a Sociology of the Juridical Field, The Hastings Law Journal 38, 805-853, translated and introduced by Richard Terdiman. Bruun, N. & Hepple, B. (2009), Economic Policy and Labour Law, in: The Transformation of Labour Law in Europe, 31-57. Buckel, S. (2007), Subjektivierung und Kohäsion. Zur Rekonstruktion einer materialistischen Theorie des Rechts, Weilerswist: Verlag Wissenschaft. Cichowski, R. (2007), The European Courts and Civil Society. Litigation, Mobilization and Governance, Cambridge: Cambridge University Press. Cichowski, R. (2006), Courts, Rights and Democratic Participation, Comparative Political Studies, 39 (1): 50-75. Cotterrell, R. (2007), Sociology of Law, in: Clark, D.S. (ed.), Encyclopedia of Law and Society: American and Global Perspectives, volume 3, Thousand Oaks: Sage, 1413-1420. Court of Justice of the European Union (2011), Annual Report 2010, Luxembourg: Publications Office of the European Union. Däubler, W. (1975), Das soziale Ideal des Bundesarbeitsgerichts, Frankfurt a M/Koeln: VSA Verlagsanstalt. Eichhorst, W., Kendzia, M. & Vandeweghe, B. (2011), Cross-border collective bargaining and transnational social dialogue, Brussels: European Parliament. Social Ideals of the Court of Justice of the European Union 181 European Integration Consortium (2009), Labour mobility within the EU in the context of enlargement and the functioning of the transitional arrangements, Brussels: European Commission. Everson, M. & Eisner, J. (2007), The Making of a European Constitution: Judes and Law Beyond Constitutive Power, Abingdon & New York: Routledge-Cavendish. Fligstein, N. (2008), Euroclash: The EU, European Identity, and the Future of Europe, Oxford: Oxford University Press. Fudge, J. (2011), Constitutionalizing Labour Rights in Europe, in: Ewing, K. and Tomkins, A. (eds.), The Legal Protection of Human Rights. Sceptical Essays, Oxford: Oxford University Press, 244-267. Garben, S. (2011), EU higher education law: the Bologna Process and Harmonisation by stealth, Alphen aan den Rijn: Kluwer. Habermas, J. (1992), Between Facts and Norms, London: Polity Press. Hart, L.A. (1997), The Concept of Law (with a postscript by Penelope Bulloch and Joseph Raz), 2nd ed., Oxford: Oxford University Press. Höpner, M. & Schäfer, A. (2010), A New Phase of European Integration: Organised Capitalism in Post-Ricardian Europe, West European Politics 33 (2): 344-368. Jacobs, A. (2009), Collective Labour Relations, in: Hepple, B. and Veneziani, B. (eds.), The Transformation of Labour Law in Europe, Oxford & Portland (Oregon): Hart Publishing, 201-232. Kahn-Freund, O. (1981), The Social Ideal of the Reich Labour Court, in: Lewis, R. and Clarke, J. (eds.), Labour Law and Politics in the Weimar Republic, Oxford: Basil Blackwell, 108-161. Kahn-Freund, O. (1966), Das soziale Ideal das Reichsarbeitsgerichts, in: Ramm, T. (ed.), Arbeitsrecht und Politik, Neuwied: Luchterhand, 149-210. Leeuwen, T.v. (2009), Discourse as Recontextualisation of Social Practice: A Guide, in: Wodak, R. and Meyer, M. (eds.), Methods of Critical Discourse Analysis, 2nd ed., London et al.: Sage, 144-161. Meardi, G. (2012 forthcoming), Systems of Employment Relations in Central and Eastern Europe, in: Pulignano, V., Arrowsmith, J. and Della Rocca, G. (eds.), The Transformation of Employment Relations, London: Routledge. Nicol, D. (2010), The Constitutional Protection of Capitalism, Oxford & Portland (Oregon): Hart Publishing. Orlandini, G. (2008), Trade union rights and market freedoms: the European Court of Justice sets out the rules, Comparative Labor Law & Policy Journal 29 (3): 573-93. Outhwaite, W. (2008), European Society, Oxford: Oxford University Press. Scharpf, F.W. (2003), Globalisation and the Political Economy of Capitalist Democracies, in: Held, D. and McGrew, A. (eds.), The Global Transformations Reader, Cambridge: Polity Press, 370-378. Schiek, D. (2012), Economic and Social Integration: The Challenge for EU Constitutional Law, Cheltenham: Edward Elgar. Schiek 182 Schiek, D. (2010a), Is there a Social Ideal of the European Court of Justice?, in: Neergaard, U., Nielsen, R. and Roseberry, L. (eds.), The Role of Courts in Developing a European Social Model, Copenhagen: DJØF Publishing, 63-96. Schiek, D. (2010b). EU non-discrimination law & policy: gender in the maze of multidimensional equality, in: Hohmann-Dennhardt, C., Körner, M. and Zimmer, R. (eds.), Geschlechtergerechtigkeit, Festschrift für Heide Pfarr, Baden-Baden: Nomos, 472-487. Schiek, D. (2005), Autonomous Collective Agreements as a Regulatory Device in European Labour Law: How to Read Article 139 EC, Industrial Law Journal 34 (1): 23-56. Schregle, J. (1981), Comparative Industrial Relations: Pitfalls and Potential, International Labour Review 120 (1): 15-30. Smith, M.N. (2006), The Law as a Social Practice. Are Shared Activities at the Foundations of Law?, Legal Theory 12 (3): 165-292. Solanke, I. (2011), Stop the ECJ? An Empirical Assessment of Activism at the ECJ, European Law Journal 17 (6), 764-784. Stone, K.V. (2008), The Challenges to Labour Rights in Our Time, in: Bercusson, B. and Eklund, C. (eds.), Regulating Labour in the Wake of Globalisation, Oxford & Portland (Oregon): Hart Publishing, 115-135. Stone Sweet, A. (2011), The European Court of Justice, in: Craig, P. and de Búrca, G. (eds.), The Evolution of EU Law, 2nd ed., Oxford: Oxford University Press, 121-153. Syrpis, P. (2011), Reconciling Economic Freedoms and Social Rights – The Potential of Commission v Germany (Case C-271/08 Judgement of 15 July 2010), Industrial Law Journal 40 (2): 222-229. Vandaele, K. (2011), Sustaining or abandoning social peace? Strike developments and trends in Europe since the 1990s, Brussels: European Trade Union Institute. Wagner, H. (1976), Recht als Widerspiegelung und Handlungsinstrument, Köln: Pahl- Rugenstein. Wendeling-Schröder, U. (2010), Das Soziale Ideal des Europäischen Gerichtshof, in: Dieterich, T. et al. (eds.), Individuelle und kollektive Freiheit im Arbeitsrecht. Gedächtnisschrift für Ulrich Zachert, Baden-Baden: Nomos, 147-161. Woolfson, C. & Sommers, J. (2006), European Mobility in Construction, European Journal of Industrial Relations 12 (1): 12-68. 183 European Courts and Representation in the EU – Lessons from Mass Litigation Harald Koch What is it a lawyer may contribute to the discussion on public interest representation? Of course, in a system of separation of powers law making and law enforcement are central issues controlled by an independent judiciary. Hence, constitutional law defines the role of the actors and their responsibilities in this balance of powers. I am not commenting, however, on the representation issue from a constitutional law perspective, but from the (maybe unusual) point of view of a civil lawyer and a proceduralist. Usually the courts do not represent the public interest when deciding on a specific dispute between private parties. Rather, individual conflict resolution is the court’s task. But in an increasing number of conflicts being dealt with by the courts we are encountering high numbers of parties having the same complaint and trying to take action in court: Arguments on the environmental impact of a power station license, on complaints concerning consumer fraud, or on adequate compensation of mass accident victims are examples of complex and mass litigation.1 These procedural scenarios are not only happening by coincidence. Rather, they are often well mapped-out by the claimants and their spokesmen in litigation campaigns and public calls to join in, so that the conflict is no longer an individual dispute but becomes a matter of wide social concern and public interest. I. Strengthening Democracy by Public Interest Litigation Here representation comes into focus as those taking legal action very often like to hold themselves out as representatives of countless others if not the common welfare. If this is legitimate then democracy might be strengthened by public interest litigation. 1 Munich Re Group/Münchener Rück (ed.), Mass Litigation Conference – The globalization of private law enforcement (2008); Sabine Schlacke, Überindividueller Rechtsschutz (2008); Eva Kocher, Funktionen der Rechtsprechung (2007), 386 et seq.; Harald Koch/Armin Willingmann, Großschäden – Complex Damages: Rechtliche und alternative Regulierungsstrategien im In- und Ausland (1998).

Chapter Preview



Die Evolution der Europäischen Union provoziert fundamentale Fragen nach der Zukunft der Demokratie. Der Sammelband trägt zu dieser Diskussion mit kritischen Bestandsaufnahmen und konstruktiven Vorschlägen von renommierten Experten bei, die sich mit der neuartigen Konfiguration „vielschichtiger Repräsentation“ auseinandersetzen. Schwerpunktthemen sind Repräsentation im europäischen parlamentarischen Mehrebenenfeld, europäische Rechtsprechung und die emergierende europäische Öffentlichkeit.

Mit Beiträgen von:

Richard Bellamy, Pablo José Castillo Ortiz, Carlos Closa Montero, Ben Crum, Tatjana Evas, John Erik Fossum, Harald Koch, Sandra Kröger, Ulrike Liebert, Christopher Lord, Aleksandra Maatsch, Asimina Michailidou, Johannes Pollak, Richard Rose, Dagmar Schiek, Philippe C. Schmitter, Hans-Jörg Trenz, Pieter de Wilde.