The literature about collective autonomy and collective bargaining in the EU is vast and complex, and it concerns the fields of both labour law and industrial relations.
In the industrial relations field, the research has mainly focused on the relations between employers’ associations and trade unions in the cross-sectoral and sectoral European social dialogue, the relations within the European trade union movement, and the relations between the EWCs and the national and European trade union federations.78 As for the European social dialogue, the industrial relations research focused on the different aspects of the procedures,79 the contents and the nature of the actors and outcomes,80 as well as the quantitative and qualitative impacts of the European framework agreements at national and transnational levels.81 The research on collective negotiations within the multinational companies focused on the nature of both the actors involved and the collective agreements achieved.82 Particular attention has been paid to the EWCs, which, despite the lack of a legal entitlement, have acquired a de facto bargaining role in negotiating collective agreements in multinational companies or groups. This role has led EWCs to be described as both
78 Glassner & Pochet (2011); Paul Marginson, “Industrial Relations at European Sectoral Level: The Weak Link?” (2005) 26 Economic and Industrial Democracy, 511–40; Deborah Hann, “The Continuing Tensions between European Works Councils and Trade Unions: A Comparative Study of the Financial Sector” (2010) 16 Transfer, 525–40.
79 Stijn Smismans, “The European Social Dialogue in the Shadow of Hierarchy” (2008) 28 Journal of Public Policy, 161–80.
80 It has been stressed that the switch towards practices of social dialogue has corresponded to a switch towards ‘softer’ and more consensual issues, such as health and safety and non-discrimination, disadvantaging ‘harder’ issues, such as wages and working hours, see Berndt Keller & Sabrina Webber, “Sectoral Social Dialogue at EU level: Problems and Prospects of Implementations” (2011) 17 European Journal of Industrial Relations, 227–43. Equally, the ‘softness’ is reflected in the adoption of recommendations and joint texts instead of collective agreements, see Marginson (2005).
81 See Stefan Clauwaert, “2011: 20 Years of European Interprofessional Social Dialogue:
Achievements and Prospects”, (2011) 17 Transfer, 169–79; Sabrina Weber, “Sectoral Social Dialogue at EU level – Recent Results and Implementation Challenges” (2010) 16 Transfer, 489–507; Volker Telljohann et al., “European and International Framework Agreements: New Tools of Transnational Industrial Relations” (2009) 15 Transfer, 505–25. On the impact of the cross-sectoral and sectoral European social dialogue on national industrial relations systems, see Trine P. Larsen & Søren Kaj Andersen, “A New Mode of European Regulation? The Implementation of the Autonomous Framework Agreement of Telework in Five Countries” (2007) 13 European Journal of Industrial relations, 181–98; Thomas Prosser, “The Implementation of Telework and Work-related Stress Agreements: European Social Dialogue through ‘soft-law’?” (2011) 17 European Journal of Industrial Relations, 245–60.
82 Paul Marginson & Guglielmo Meardi, Multinational Companies and Collective Bargaining (Eurofound 2009).
instruments for developing the ‘Europeanisation’ of industrial relations83 and as fundamental tools at trade unions’ disposal for counterbalancing the economic side of the European integration process.84
In labour law scholarship, the attention focused on the legal nature of the framework agreements concluded within the machinery of the cross-sectoral and sectoral European social dialogue, as well as on the legal nature of the transnational collective agreements. As for the first aspect, the autonomy of the European social partners has been questioned, since the intervention of the EU legislator and/or the need to rely upon the national procedures are required elements for the implementation of the European framework.85 The meaning of ‘autonomy’ in the European Social Dialogue has been conceptualised in procedural terms and as a form of supranational social governance.86 As for the issue of transnational collective bargaining, labour law scholarship has debated the lack of a legal framework. Scholars are divided between those who sustain the need for the adoption of an EU legal framework,87 and those who instead promote a different reading of the Treaty provisions on the European social dialogue in order to provide a legal basis for negotiating and implementing the collective agreements.88 The adoption of a legal framework for transnational collective agreements has been considered as a necessary step in adapting the European market to globalisation89 and as a vital tool for filling the legal gap in which employees representing bodies
83 See, inter alia, the contribution of the comparative study Markus Hertwig, Ludger Pries & Luitpold Rampeltshammer (eds), European Works Councils in a Complementary Perspective (ETUI 2009).
84 Jürgen Hoffman & Reiner Hoffmann, “Prospects for European Industrial Relations and Trade Unions in the Midst of Modernisation, Europeanization and Globalization” (2009) 15 Transfer, 389–
417; Barbara Tully, “Organising across Borders: Developing Trade Union Networks” in Ian Fritgerald
& John Stirling (eds), European Works Councils. Pessimism of the Intellect, Optimism of the Will?
(Routledge 2004), 165–77.
85 Olaf Deinert, “Mode of Implementing European Collective Agreements and their Impact of Collective Autonomy”, (2003) 32 Industrial Law Journal, 317–25; Nuria Ramos Martìn & Jelle Visser, “A more ‘autonomous’ European Social Dialogue: The Implementation of the Framework Agreement on Telework” (2008) 24 The International Journal of Comparative Labour Law and Industrial Relations, 511–48.
86 Marco Peruzzi, “Autonomy in European Social Dialogue” (2011) 27 The International Journal of Comparative Labour Law and Industrial Relations, 3–21; Antonio Lo Faro, Funzioni e finzioni della contrattazione collettiva comunitaria (Giuffrè 1999).
87 Edoardo Ales et al., Transnational Collective Bargaining. Past, Present, Future, (2006) Final report to the European Commission, Directorate General Employment, Social Affairs and Equal Opportunities; Edoardo Ales, “Transnational Collective Bargaining in Europe: The Case for Legislative Action at EU level” (2009) 148 International Labour Review, 149–62.
88 Dagmar Schiek, “Transnational Collective Labour Agreements in Europe and at European level – Further Reading of Article 139 EC” in Mia Rönnmar (ed) EU Industrial Relations v. National Industrial Relations. A Comparative and Interdisciplinary Perspective (Kluwer 2008), 83–103.
89 Isabelle Schömann, “Transnational Collective Bargaining: A Tool in the Service of the Lisbon Strategy?” (2006) 12 Transfer, 297–301.
such as the EWCs pursue collective negotiations at a transnational company level.90 It has also been stressed that the adoption of such a legal framework would affirm the transnational nature of such agreements, as their implementation would not need to rely on national mechanisms.91
The major streams of research concern the European social dialogue and transnational collective bargaining. It emerges that the (non-national) industrial relations dynamics within the EU are usually classified according to a three-fold structure including the cross-sectoral dimension of the European social dialogue, the sectoral dimension of the European social dialogue, and the transnational negotiations occurring within multinational companies and groups.92 This thesis, instead, intends to highlight the evolution of collective autonomy and collective bargaining in the cross-border dimension of the EU internal market, as emerged in the Viking and Laval disputes, which constitutes a particularly fertile stream of research in the labour law field.
The Viking and Laval case law marked a division between two eras in labour law scholarship. Before Viking and Laval, commentators shared a vision of hope towards the social improvements stemming from the construction of the EU. The critics addressed an evolution of the EU integration project that was skewed towards the economic side and argued for more space for the social side of integration.
However, the social policy provisions included in the EU Treaty appeared as opportunities to widen the scope for social actors to scale up their activities in the European scenario. This vision found some success in the adoption of the EU Charter of Fundamental Rights in 2000. The wide space it offered to social and labour rights was seen as an important achievement in the development of the social side of integration. The adoption of the Treaty of Lisbon in December 2007, which made the Charter legally binding and reformulated the aim of the EU internal market in terms of a ‘social market economy’, contributed to the perception of the definitive achievement of a more socially-oriented EU.
However, at the same time as the signing of the Lisbon Treaty, the Viking and Laval case law appeared. The disapproval of (or at least the scepticism towards) these rulings among labour law scholars and commentators has been almost unanimous. Through those cases, the CJEU had strongly intervened in the evolution of the EU by privileging its economic side to the detriment of the social side. The status of the social objectives and of the collective labour rights had been downsized in the EU legal system and subjected to complying with the economic freedoms of
90 Romuald Jagodzinski, “Involving European Works Councils in Transnational Negotiations – A Positive Functional Advance in their Operation or Trespassing?” (2007) 14 Industrielle Beziehungen / The German Journal of Industrial Relations, 316–33.
91 Antonio Lo Faro, “Bargaining in the Shadow of ‘optional framework’? The Rise of Transnational Collective Agreements and EU law” (2012) 18 European Journal of Industrial Relations, 153–65, 159.
92 For a schematic description of these definitions, see John Gennard, “Developments of Transnational Collective Bargaining in Europe” (2009) 31 Employee Relations, 341–46.
establishment and providing services. The recognition of the right to collective action as a fundamental right of the EU legal system was welcomed; but its contextual subjugation to the exercise of economic freedoms was condemned and indicated as the signal of the neo-liberal turn in the project of European integration.
The present work shares those concerns, but at the same time it intends to offer new perspectives on the Viking and Laval case law on the grounds of a conceptual understanding of collective autonomy.
Those cases have stimulated several reflections on different levels and from different perspectives. Many studies, often edited volumes with several contributors, have been produced, in which the analysis has focused on the balance between the economic and the social side of the EU integration project or of the EU legal system; on the interplay in EU law between the exercise of collective labour rights and the exercise of the economic freedoms; and on the impact (real or potential) of that case law in different national contexts.93 Other studies have been conceived within one of the most relevant contexts to emerge from those cases, such as the posting of workers.94
Even though the subjects related to the Viking and Laval cases have been explored in detail, this study intends to ‘fill a gap’ in European labour law scholarship concerning the evolution of the legal regulation of industrial relations, and in particular that of collective bargaining, from the national to the cross-border dimension in the light of a theoretical framework grounded on the concept of collective autonomy. The analysis is framed within the rationale of collective autonomy and it has a strong and developed theoretical framework that combines labour law theories and industrial relations theories. This study intends to adopt the concept of ‘collective autonomy’ as an analytical tool for interpreting the current evolution of labour, just as Ruth Dukes did so in her work with the concept of the
‘labour constitution’.95 The integration of the legal discourse on global labour rights contributes in expanding both the legal understanding of collective autonomy and the analysis of the international and European labour law sources, which are here combined with an industrial relations perspective. The study further analyses the
93 Inter alia, Mark Freedland & Jeremias Prassl (eds), Viking, Laval and Beyond (Hart 2014); Andreas Bücker & Wiebke Warneck (eds), Reconciling Fundamental Social Rights and Economic Freedoms after Viking, Laval and Rüffert (Nomos 2011); Edoardo Ales & Tonia Novitz (eds), Collective Action and Fundamental Freedoms in Europe. Striking the Balance (Intersentia 2010); Mia Rönnmar (ed) EU Industrial Relations v. National Industrial Relations. A Comparative and Interdisciplinary Perspective (Kluwer 2008); Aurora Vimercati (ed), Il conflitto sbilanciato. Libertà economiche e autonomia collettiva tra ordinamento comunitario e ordinamenti nazionali (Cacucci 2009); Filip Dorssemont &
Teun Jaspers & Aukje van Hoek (eds), Cross-border Collective Action in Europe: A Legal Challenge.
A Study of the Legal Aspects of Transnational Collective Actions from a Labour Law and Private International Law Perspective (Intersentia 2007).
94 Marco Rocca, Posting of Workers and Collective Labour Law: There and Back Again. Between Internal Market and Fundamental Rights (Intersentia 2015).
95 Ruth Dukes, The Labour Constitution. The Enduring Idea of Labour Law (Oxford University Press 2014).
legal regulation of collective autonomy and collective bargaining in the national contexts, which constitute the contexts in which industrial relations have received legal regulation, and thus are the contexts in which the notion of collective autonomy has taken place. The integrated and analytical comparison between Italian and Swedish collective labour law and industrial relations also constitutes a valuable contribution in itself, since (as far as I am aware) no comprehensive studies have thus far addressed those two systems in such a manner. Finally, the thesis explores the evolution of collective autonomy and collective bargaining in the socio-economic context of the cross-border dimension of the EU internal market in order to capture their changing features. The methodological choice of a multifaceted and integrated analysis marks this study’s contribution to the field of European labour law scholarship. Further, it intends to integrate a labour law analysis with an industrial relations perspective in a context outside the borders of the State.