CROSS-BORDER SOCIAL DIALOGUE AND AGREEMENTS: An ...

Cross-border social dialogue and agreements
Under the pressure of EU law, Member States have adapted their
laws to the requirements of free movement in the single market. The EU
law of the common market transformed national rules governing the free
movement of goods, services, capital and workers. However, national
laws have not yet adapted to trade unions’ response in the form of
transnational collective action, which impacts on the transnational economy;
unlike national strikes, transnational solidarity strikes are not legal
in all Member States.
Globalization of production chains means that collective action frequently
has an impact beyond national borders. National rules on collective
action are inadequate to regulate transnational collective action
having an impact on the free movement of enterprises in the EU. A specific
legal problem arises where national laws on collective action
encounter EU law (and adapted national law) on free movement of
goods, services, capital or workers.
The remainder of this chapter examines the role of (transnational)
collective action in its traditional role as a dynamic mechanism to promote
(cross-border) social dialogue, and its radical consequence in the
potential emergence of transnational collective bargaining.
The law: Transnational collective industrial action
and free movement in the European Union
Collective action to promote transnational collective bargaining is
also a mechanism to secure effective implementation and monitoring of
cross-border agreements. One axiom of labour law is that the effectiveness
of labour law rules is in inverse proportion to the distance between
those who make the rules and those who are subjected to them. In other
words, the greater the distance the less their effectiveness; the less the distance,
the greater their effectiveness. The presumption is that rules originating
from social partners engaged in collective bargaining, being closest
to those subject to these rules (employers and workers), achieve a
higher level of effectiveness. Conversely, those emerging from legislative
or administrative processes, distant from employers and workers, will
have relatively less efficacy. Whatever the national equilibrium among
various mechanisms of labour law-making and enforcement (legislative,
administrative, judicial), the argument is that those systems in which the
social partners are more prominent in rule-making will be those in which
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