The right to strike: fundamental principle or fetter?
Law School University of Liverpool Liverpool, United Kingdom
Law University of Perugia Perugia, Italy
The intersection of EU law and national labour rights has typically been presented, both academically and judicially, as a battleground, in which supranational market liberalisation is pitted against national social traditions. Those defending social rights from the infiltration of economic freedoms tend to entrench this opposition. The emphasis on national 'traditions' pushes consideration of social policy diversity to the forefront; diversity in turn consigns social policy to the ambit of Member States.
The effect of this economic/social 'division of labour' is twofold; although the EU ostensibly avoids interference with social policy, nor can it be expected to protect or promote it. Social policies, due to national diversity, will be sufficiently different that the protection of one such policy is not considered to be the interest of most Member States.
When dealing with apparently conflicting free movement provisions and social rights, the ECJ is increasingly adopting a balancing approach, partly attributable to the growing political and social reach of the Union, as exemplified in the case law on Union citizenship. However, the presumption is that free movement is the ultimate priority, as economic goals being shared by Member States, are goals that will satisfy the greater number when compared to diverse social goals.
We will look at the national models of the right to strike in both Italy and the UK - scenes of two very different labour rights movements - and consider the effects of Viking and Laval. This paper will then challenge the model by which the economic and the social are considered as opposite poles of European and national. 'Protectionism' is no longer an inherent national constitutional default, but conversely liberalisation is not necessarily the ultimate European virtue.
While 'balancing acts' within the ECJ are in general to be welcomed, it is suggested that constitutional asymmetry can only be redressed if the balance is less skewed at the outset, i.e. by not presuming that economic freedoms are 'fundamental' while social rights are parochial 'fetters'. Social rights may instead be presented a facet of freedom of movement.