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

Cross-border social dialogue and agreements
threatened and no guarantees are forthcoming of equivalent protection. 29
The ECJ stated this even more emphatically in Laval: 30
In that regard, it must be pointed out that the right to take collective
action for the protection of the workers of the host State against
possible social dumping may constitute an overriding reason of public
interest within the meaning of the case-law of the Court which, in principle,
justifies a restriction of one of the fundamental freedoms guaranteed
by the Treaty … (ECJ, 2007b, para. 103).
Conclusions
One obstacle to the taking of transnational collective action has
been, at best, its uncertain legal status, and at worst, its explicit prohibition
in some national labour laws. The ECJ has declared that trade
unions, entitled to take collective industrial action in a national context,
are similarly free in a European single market to exercise cross-border collective
action. If the European Commission remains passive, with consequences
for a moribund European social dialogue, and employers refuse
voluntarily to engage, trade unions may have no alternative but to draw
on the collective strength they have traditionally used in collective bargaining
at national level: to take transnational collective action in order
to conclude cross-border collective agreements.
29
The principle is reminiscent of case law on the Posting Directive 96/71, which allows the host
Member State to impose mandatory employment conditions unless equivalent protection is provided by the
home Member State. This element is found in Advocate General Mengozzi’s Opinion in Laval. At a more
fundamental level, it translates as an application of the equal treatment principle: the exercise of freedom of
establishment to another Member State is conditional on equal treatment of posted workers with other workers
in each Member State both before and after the relocation.
30
In the Laval decision (ECJ, 2007b, para. 103), citing, among other authorities, para. 77 of the
Viking decision of the previous week (ECJ, 2007a). Although the ECJ disqualified the collective action in
Laval by reference to the labour standards in the Posting Directive 96/71 as transposed into Sweden, the ECJ’s
understanding of the application of the Posting Directive 96/71 in the Swedish context is questionable, and
the Swedish Labour Court may take a more informed view of the facts when it comes to decide the case.
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