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1.3.1. European labour law and legal method

The present study is envisioned within the field of European labour law, which is, as described by Bercusson, ‘influenced by the symbiosis of national labour law and EC labour law, and the interaction of law and context’.12 The norms and provisions that form the basis of European labour law stem from different legal sources, such as the EU Treaties and Charter, the European and international labour rights and human rights conventions, the national legal orders, and the collective agreements set by the labour market parties both at EU and national level. This complexity, reflected in the three perspectives considered here, allows for several methodological choices with regard to both the way in which the study is approached and the materials that will be analysed. This thesis will set this study within a legal-pluralistic framework. This methodological choice is strategically made in order to achieve a multifaceted analysis of the topic, which not only stresses its complexity but also challenges the legal understanding of collective autonomy and collective bargaining as subordinated to market-oriented priorities.

In dealing with a multi-dimensional context such as the EU and with a complex field such as labour law, a research project needs to adopt a perspective that reflects the complexity of the social phenomena and their legal regulation, and permits the exploration of the different layers and dimensions involved. As stressed by Tuori, the EU integration process is not ‘an image of a linear, pre-determined and harmonious evolutionary process’.13 Rather, Tuori identifies a series of conflictual relationships within the EU system, referring to the ‘constitutionalisation’ processes of its different core dimensions, among which the ‘social constitution’ has always been and remains the most underdeveloped and unaccomplished.14 He refers to the European Constitution as a ‘discursive phenomenon’, whose legal understanding requires an analysis of the different actors involved such as ‘European and Member-State legislators and judges, as well as scholars of European law’.15 In his conclusions, Tuori also refers to the need for legal scholarship to utilise

12 Brian Bercusson, “The Conceptualisation of European Labour Law” in Brian Bercusson, European Labour Law (2nd edn, Cambridge University Press 2009b) 78–98, 78.

13 Karlo Tuori, “The Relationality of European Constitution(s). Justifying a New Research Programme for European Constitutional Scholarship” in Ulla B. Neergaard & Ruth Nielsen (eds), European Legal Method – Towards a New European Legal Realism? (Djøf 2013) 23–36, 33.

14 The other constitutional dimensions that Tuori identifies are: the economic constitution; the juridical constitution; the political constitution; and the security constitution, Tuori in Neergaard & Nielsen (2013) 24.

15 Tuori in Neergard & Nielsen (2013) 34.

interdisciplinary perspectives in studying the EU system, due to its ‘theoretic-methodological premises’, without however renouncing its self-sufficiency.16

The present study encompasses elements of EU law and of national and international labour law. It also combines a study of labour law with elements from the industrial relations field of study, and it integrates legal analysis with theoretical and conceptual aspects. This multiple methodological approach reflects the multifaceted analysis undertaken in order to understand the contemporary situation of collective autonomy and collective bargaining in Europe. It also captures the multi-dimensional reality of European labour law and industrial relations as fields in which supranational, national and transnational elements interplay and overlap.17

According to the Treaty on the Functioning of the EU (TFEU), labour law (and social policy) is among the competences shared between the EU and the Member States. However, fundamental aspects of labour law and industrial relations – such as collective labour rights of association, bargaining and action, as well as pay – are excluded from the legislative competences of the EU by Art. 153.5 TFEU. In these areas, as in other areas of national exclusive competence, a regulative action of the EU is to be excluded, even though, as interpreted on several occasions by the Court of Justice of the European Union (CJEU), this does not mean that the national regulations in those areas can disregard EU law.

Already in the Van Gend en Loos and Costa v Enel rulings, the CJEU affirmed that EU law had direct effect in the legal orders of the Member States and was to be given primacy over national law. The principles of supremacy and direct effect, which enabled an understanding of EU law as a ‘new legal order’, have since become the linchpins of the legal integration between the EU system and the Member States’ systems – and therefore the methodological cornerstones of the ‘one big system’ conceptual model.18

This model, however, focuses on the interactions between EU law and the national legal orders. It does not comprise other legal material that is relevant to the present study. Labour law in Europe is also affected by the Council of Europe instruments, such as the European Convention of Human Rights (ECHR) and the European Social Charter (ESC), and by the Conventions adopted by the International Labour Organisation (ILO). These sources are binding for the national legal systems, but their status in the EU legal system is not clear, even though the rights of the ECHR are general principles of EU law according to Art. 6.3 TEU. In dealing with the protection of collective labour rights, the most important achievement deriving from the case law of the European Court of Human Rights

16 Ibid.

17 See Paul Marginson & Keith Sisson, European Integration and Industrial Relations. Multi-level Governance in the Making (Palgrave Macmillan 2006).

18 Ruth Nielsen, “Towards an Interactive Comparative Method for Studying the Multi-layered EU Legal Order” in Ulla B. Neergaard & Ruth Nielsen (eds), European Legal Method – in a multi-level EU legal order (Djøf 2012) 89–116, 93.

(ECtHR) is the recognition of a right to collective bargaining and of collective action in the scope of Art. 11 ECHR on freedom of trade union association.19 In its case law, the Court has arrived at this conclusion by interpreting the Convention in the light of the other international labour law sources. In this way, the ESC and the ILO Conventions have become indirectly binding in the EU legal system.

However, the Opinion of the Full Court of the CJEU of December 2014 on the draft agreement for the accession of the EU to the ECHR, foreseen by Art. 6.2 TEU, has raised doubts over the status of the ECHR as a source of law within the EU, and of the judgments of the ECtHR as binding on the CJEU.20 In its Opinion, the CJEU affirms that the unique features of the EU system rely upon its unique aims and structure, whose achievements and autonomy would prevent making its legal provisions subject to the scrutiny of a court such as the ECtHR. According to the CJEU, the autonomy of EU law would be challenged by the full accession to an external legal system, equipped with its own court, whose rationale and aims (i.e.

the protection of human rights and freedoms) might produce a shift in the institutional balance of power within the EU system and between the EU and the Member States. Consequently, the CJEU affirms that the ‘jurisdiction to carry out a judicial review of acts, actions or omissions on the part of the EU, including in the light of fundamental rights, cannot be conferred exclusively on an international court which is outside the institutional and judicial framework of the EU’.21 The coherence and consistency of the EU legal system needs to ‘process’ and ‘filter’ the external sources, in particular those dealing with fundamental rights, in order not to alter the equilibrium between the legal norms set by the interpretation of the Treaties of the CJEU. The Court demonstrates a legal-pluralist understanding that is functional to the preservation of the autonomy of EU law.22

The research project on ‘European legal method’ conducted by Neergaard and Nielsen, with contributions from several scholars, stresses that a legal study of the EU system can be approached from different perspectives highlighting different aspects and problematic issues, as well as reflecting various conceptualisations of the EU system itself. The concepts of ‘legal realism’ and ‘legal pluralism’ represent two of the main methodological approaches in addressing the study of the EU legal system. In the taxonomy provided by Barber, a ‘legal realist’ approach to law refers to examining either ‘the operation of law in society’ or ‘the operation of law in

19 Demir and Baykara v. Turkey (App no. 34503/97), Judgment of 12 November 2008 and Enerji Yapi-Sol Sen v. Turkey (App no 68959/01), Judgment of 21 April 2009.

20 Opinion 2/13 of the Court (Full court) EU:C:2014:2454.

21 Opinion 2/13, para 256. Here the CJEU refers to its previous Opinion 1/09 of the Court (Full Court) EU:C:2011:123.

22 In this sense, Piet Eeckhout, “Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue:

Autonomy or Autarky?” (2015) 38 Fordham International Law Journal, 955–92, 992.

courts’.23 In both cases, the analysis is intended to obtain a better understanding and systematising (and eventually advancing suggestions for improving) the operation of law within a legal system. Legal pluralism, on the other hand, can have two approaches: one examining ‘the relationship between state law and other normative systems’; and one ‘focused on inconsistency, or contradiction, between rules’ in the sense of considering the different rules applicable to a single factual situation.24 Both instances of legal pluralism are relevant in order to capture the complexity of phenomena such as collective autonomy and collective bargaining in a complex context such as the EU.

1.3.2. Legal pluralism and collective autonomy in the EU

The study of collective autonomy in the EU shall be conducted through a methodological approach that privileges the coexistence of several sources regulating the exercise of collective labour rights and the autonomous normative potential of collective bargaining. The defining characteristic of legal pluralism is the presence, in the same geographical space and at the same time, of two or more different legal orders.25 In this sense, Griffith has defined legal pluralism as ‘the coexistence within a social group of legal orders which do not belong to a single

“system”’.26 This statement describes how social phenomena such as industrial relations can be subjected to different rules according to the national legal systems, the EU legal system, and the international and European conventions. An identical situation or act – such as a strike or a collective agreement – can be judged differently depending on the objectives and values of each legal order concerned.27 At the same time, the relationship between state law and the normative autonomy of the industrial relations parties is at the core of collective autonomy, which constitutes the theoretical framework of the present project. Collective autonomy is an autonomous system of norm production that creates the rules to be applied to the

23 Nicholas W. Barber, “Legal Realism, Pluralism, and their Challengers” in Neergaard & Nielsen (2013) 189–209, 190.

24 Barber in Neergaard & Nielsen (2013) 195–96.

25 Boaventura De Sousa Santos, Toward a New Legal Common Sense: Law, Globalization and Emancipation (LexisNexis 2002) 89; Boaventura De Sousa Santos, “Law: A Map of Misreading.

Toward a Postmodern Conception of Law” (1987) 14 Journal of Law and Society, 279–302.

26 John Griffiths, “What is Legal Pluralism?” (1986) 24 Journal of Legal Pluralism, 1–55, 8.

27 Generally, Henrik Zahle, “The Policentrity of the Law or the Importance of Legal Pluralism for Legal Dogmatics” in Hanne Petersen & Henrik Zahle (eds), Legal Policentrity: Consequences of Pluralism in Law (Dartmouth 1995) 185–200; Sally Engle Merry, “Legal Pluralism and Legal Culture:

Mapping the Terrain” in Brian Z. Tamanaha, Caroline Sage & Michael Woolcock (eds), Legal Pluralism and Development (Cambridge University Press 2012) 66–82.

employment relationship and to industrial relations.28 Already in 1910, Romano identified the normative prerogative of the parties involved in collective negotiations as the expression of an autonomous legal order challenging the authority of the State’s law.29 According to Romano, the establishment of settled rules by means of a collective agreement creates ‘two distinct legal orders’, for which the same normative act – the contract signed between workers and employers – is a private contract in the case of the State’s order and the system itself for the

‘particular order’ constituted by employers and workers.30 In the light of this discussion, the present project is conceived within a legal-pluralistic framework. A legal-pluralistic approach is appropriate, because it allows us to see that, on the one hand, the exercise of collective labour rights can be regulated differently depending on the aim of the legal system itself, and, on the other hand, collective autonomy possesses autonomous normative capabilities to regulate employment.

From a legal-pluralistic perspective, a collective agreement – the outcome of the normative capability of collective autonomy – can be considered as an obstacle to the free development of the EU internal market if interpreted from the perspective of the EU Treaties. But it can constitute the fundament of a system of industrial relations if considered from the perspective of the parties; and it can constitute a private law contract regulating the employment relationships if viewed from the perspective of the national legal system. It can further be deemed an instrument for protecting essential labour rights – such as the right to organise – and at the same time basic human rights – such as freedom of association – if conceived within other legal orders, such as the ILO or the ECHR. For the aims of the present study, it is therefore important to analyse the EU legal order as one of a plurality of legal orders which interact within the national legal orders of the Member States. This perspective is particularly pertinent in the field of labour law and industrial relations, in which national legal systems, the EU legal system, and international labour rights and human rights conventions interact. In this sense, Bücker, Dorssemont and Warneck stress that ‘industrial relations – irrespective of the level at which they take place – are governed by a variety of conflicting legal frameworks. In such a network, there are a number of different institutional actors playing a role as architects of relevant legal frameworks’.31 The rationale of industrial relations as a normative

28 See Niklas Bruun, “The Autonomy of Collective Agreement” (2002) Report to the VII European Regional Congress of the International Society for Labour Law and Social Security.

29 See Santi Romano, “Lo Stato moderno e la sua crisi” (originally in 1910 Rivista di diritto pubblico) in Santi Romano, Saggi di diritto costituzionale (1969 Giuffrè) 5–26.

30 Santi Romano, L’ordinamento giuridico. Studi sul concetto, le fonti e i caratteri del diritto (Mariotti 1917, re-published Gale 2013) 115.

31 Andreas Bücker, Filip Dorssemont & Wiebke Warneck, “The Search for a Balance: Analysis and Perspectives” in Andreas Bücker & Wiebke Warneck (eds), Reconciling Fundamental Social Rights and Economic Freedoms after Viking, Laval and Rüffert (Nomos 2011) 315–405, 375.

system is challenged by the rationale of EU law, which in its turn is challenged by the rationale of the other systems, such as the ECHR, the ESC, and the ILO.

1.3.3. Sources and materials

The legal research of this thesis is based on the analysis of legal materials such as statutory provisions, case law, preparatory works, and legal doctrine. As for the European and international sources related to the discourse on global labour rights, the analysis focuses on the provisions concerning freedom of association, right to organise, right to collective bargaining and collective action enshrined in the ILO Conventions, the ESC, the ECHR, and the EU Charter of Fundamental Rights. In addition, the case law of the related monitoring and judicial bodies is considered, including the ILO Committees of Experts on the Application of Conventions and Recommendations (CEACR) and on Freedom of Association (CFA), the European Committee of Social Rights (ECSR), the European Court of Human Rights (ECtHR), and the Court of Justice of the EU (CJEU).

As for the national contexts, the legal analysis focuses on the provisions regulating collective bargaining in Italy and Sweden, including constitutional provisions and statutory acts as well as case law. The comparative analysis takes into account the rulings of the Italian Constitutional Court and of the Italian Corte di Cassazione (the last judicial instance in the Italian court system)32 that are relevant in the definition of the main legal aspects related to collective bargaining, as well as the rulings of the Swedish Labour Court. In some cases, the original ruling has been examined, whereas in other cases the research has benefited from landmark judgments having been translated into English.33 The literature includes sources in Italian and in Swedish as well as in English. As a matter of fact, the relevance and specific features of the Swedish context have produced a vast amount of important literature that is available in English on account of the interest of the international audience in the specific characteristics of the Swedish labour law system.

As for the EU context, the legal analysis concentrates on EU primary and secondary law, on CJEU’s case law, and on the most relevant academic literature and doctrine. The primary law of the EU includes both the provisions of the Treaty and the articles of the EU Charter of Fundamental Rights. The analysis focuses on those norms of primary law dealing with issues related to collective autonomy and collective bargaining. Among the secondary law of the EU, which includes both directives and regulations, the research takes into consideration legislation that

32 According to Art. 65 of Act 12/1941, the Court has the objective of ensuring the correct application of the law, its uniform interpretation, and its unity, as well as the respect of the jurisdictional competences.

33 In particular, it has been used Ronnie Eklund, Tore Sigeman & Laura Carlsson, Swedish Labour and Employment Law: Cases and Materials (Iustus 2008).

recognises the role of collective bargaining in the regulation of labour law and social policy matters. An important part of the research on the EU context is focused on the Directive 96/71 concerning the posting of workers in the framework of the provision of services. As for the case law of the CJEU, the study addresses the landmark cases that have dealt with the regulation of economic freedoms to establish and provide services, as regards both the definition of their general features and the recognition of collective autonomy as an obstacle to their exercise.

1.3.4. Conceptual bases of collective autonomy and collective bargaining

This study is conceived within the conceptual framework of collective autonomy.

The emergence, in conjunction with the Industrial Revolution, of collective social groups concerned with the setting of employment conditions constitutes the essence of the modern conception of labour relations as evolved from the master-servant to the employer-employee relationship in Europe.34 Consequently, the legal systems of the States had to deal with the legal regulation of the socio-economic relationships generated by collective organising, collective bargaining and collective action. Collective labour law thus constitutes a ‘legal understanding’ of industrial relations. The legal regulation is a ‘reaction’ to the emergence of the social phenomena of labour relations. Industrial relations, historically and conceptually, come ‘before’ labour law, whose creation has had the aim of regulating the social relationships established by the collectivisation of employment and industrial production in Europe.35

The social dimension of industrial relations has been ‘translated’ into a legal dimension. Accordingly, an autonomous and self-conducted form of regulation developed in the field of labour and employment law along with the State’s legislative action. In this regard, Supiot notes that the establishment of a collective regulatory technique represents the feature that characterises labour law and that solved the impasse of individual subordination in employment by setting rights and obligations.36 Similarly, Hepple affirms that ‘labour law is created not only by the state (executive, legislature and judiciary) but also by autonomous groups, in particular employers and trade unions’.37 The autonomous production of norms rests

34 Bruno Veneziani, “The Evolution of the Contract of Employment” in Bob Hepple & Bruno Veneziani (eds), The Transformation of Labour Law in Europe. A Comparative Study of 15 countries 1945–2004 (Hart 2009) 31–72.

35 See Thomas Anton Kochan, Collective Bargaining and Industrial Relations. From Theory to Policy and Practice (Irwin 1980).

36 Alain Supiot, Critique du droit du travail (Presses Universitaires de France 2011) 124.

37 Bob Hepple, “Introduction” in Bob Hepple (ed) The Making of Labour Law in Europe. A Comparative Study of Nine Countries up to 1945 (first published 1986, Hart 2010) 10.

upon the social phenomena of collective organising, collective action and collective bargaining, which emerged in industrial societies during the 19th century and towards which the law of the State has had – and still has – various and changing policies and approaches.38 In this sense, Kahn-Freund recalled that industrial relations are social phenomena whose existence is not, in theory, dependent on the law; yet their functioning is shaped by the law.39 Therefore, the lack, the presence, or the implementation of law regulating the power relationships between the social powers representing the conflictual interests in the labour market, result in different outcomes as regards the formation and evolution of labour relations in society.40 The autonomy of those social powers, and of the representing organisations, is influenced by, and to a large extent created in relation with, the law. The need for the law to ‘understand’ the social phenomena of collective organising and bargaining has brought these social phenomena within the legal framework, ultimately creating the conditions for a conceptual understanding based on the notion and function of autonomy. The autonomy of industrial relations is thus a product of their relations to the law.

The spontaneous emergence of collective subjects representing the individuals involved in labour relations stemmed from the inherent conflictual interests borne by those subjects. The deployment of such a conflict has put the legal system in the position of regulating the socio-economic dynamics generated by industrial relations in order to contain conflict and produce rules that are capable of managing the practice of such relations.41 The historical characteristics of the relationship between law and industrial relations have favoured – or forced – specific patterns of development.42 The interventionist or abstentionist attitude of the State has the potential to alter the equilibrium between the labour market parties and the power relations in the bargaining process. The discourse on collective autonomy places excessive emphasis on this aspect.

38 Antoine Jacobs, “Collective Labour Relations” in Hepple & Veneziani (2009) 201–32.

39 Otto Kahn-Freund, “Trade Unions, the Law, and Society” (1970) 33 The Modern Law Review, 241–

67; Otto Kahn-Freund, “Industrial Relations and the Law – Retrospect and Prospect” (1969) 7 British Journal of Industrial Relations, 301–16.

40 Folke Schmidt, Law and Industrial Relations in Sweden (Almikvist & Wiksell 1977) 14.

41 However, the extreme juridification of industrial relations is to be avoided. As described by Teubner in relation to the juridification of social spheres, juridification is ‘a process in which human conflicts are torn through formalization out of their living context and distorted by being subjected to legal processes’. In this way, social conflicts are ‘expropriated’ and ‘mutilated’ by the law, see Gunther Teubner, “Juridification – Concepts, Aspects, Limits, Solutions” in Gunther Teunber (ed) Juridification of Social Spheres. A Comparative Analysis in the Areas of Labor, Corporate, Antitrust and Social Welfare Law (de Gruyter 1987) 3–48, 7 and 8.

42 An example of this dynamic as regards England is given in William Brown & Sarah Oxenbridge,

“Trade Unions and Collective Bargaining: Law and the Future of Collectivism” in Catherine Barnard, Simon Deakin & Gillian S. Morris (eds), The Future of Labour Law. Liber amicorum Bob Hepple QC, (Hart 2004) 63–78.