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

Cross-border social dialogue and agreements
EU Charter. In this way, as stated earlier, the ECJ plays a political role in
overcoming political opposition to European integration, a role it has frequently
fulfilled in the past, relying on fundamental freedoms (of movement
of goods, services, capital and labour) guaranteed in the EC Treaty.
The EU Charter now provides another legal basis on which the ECJ may
choose to rely in overcoming challenges to European integration in the
social and labour field.
European Court recognition of a fundamental
right to collective action
The EU Charter represents values integral to “Social Europe”. In
the sphere of employment and industrial relations, these values include
those reflected in the fundamental rights to collective bargaining and collective
action embodied in Article 28 of the Charter. Litigation before the
ECJ confronts the Charter with freedom of movement in the European
single market.
In Viking and Laval, employers were seeking to override national
and international guarantees of the right to collective action, invoking
their freedom of movement in EU law. The references to the ECJ pose
the question of whether collective industrial action at EU level contravenes
the EC Treaty provisions on free movement, or whether the ECJ
will adapt the EU law on free movement to redress the balance of economic
power on a European scale. The reference to the ECJ by the English
Court of Appeal in Viking highlights the issue of the limits to free
movement: whether EC Treaty provisions on free movement may be limited
by collective action that is lawful under national law. One specific
issue raised is the potential applicability of Article 28 of the EU Charter,
which provides for the fundamental right to take collective action,
including strike action.
The issues put by the English Court of Appeal to the European
Court raise the question of whether EU law includes a fundamental right
to strike. The potential role of collective industrial action in shaping
cross-border collective bargaining and the implementation of crossborder
collective agreements may be determined by the response to this
question by the ECJ. The Advocates General in Viking and Laval
delivered their opinions on 23 May 2007. Both of them cited the EU
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