The Fundamental Right to Strike in the Multilevel Legal System of Human Rights Protection in Europe – Laval in Context

Abstract

Autonomous industrial partners, i.e. trade unions and employers’ organizations, are vital parts of a modern welfare system, which are in turn realizations of human rights in the social-economic sphere. Issues of social policy, such as they are manifested in the welfare states are in the EU-setting within the competence of the members states. The social policy foundations of the welfare state have a strong democratic legitimacy and serve as a restraint on the capitalist system, making it socially acceptable. Autonomous trade unions contribute to overall realization of social policy goals in their inherent strive for equality and universalism. Collective bargaining and the conclusion of collective agreements is the main tool in which workers unions can achieve this and the interdependence between the right to strike and the right to collective bargaining is strong. The right to strike is hence fundamental in that sense that it is not an accessory of other rights in the sphere of workers’ human rights, but that it lies in the very nucleus of the same.

The right to strike is in the European context protected under several bodies of law, national, regional and international. It is protected and recognized as an intrinsic corollary to workers’ freedom of association by the International Labour Organization (ILO) in which all member states of the European Union are members and to which the European Court of Human Rights (ECtHR) recently has deferred authority in matters of workers’ rights. This implies that the member states are twofold bound by the provisions regarding the right to strike in the ILO framework. The right to strike is further recognized in the EU setting as a fundamental right that forms an integral part of the general principles of community law. The European Court of Justice (ECJ) has however held that the right to strike must be reconciled with market freedoms in order for it to be proportionate and hence justified in the community legal framework. This stance is not compatible with that of the ILO, which does not acknowledge any restrictions of the right to strike on grounds of market protection. European states are hence bound under several international agreements to protect the fundamental human right to strike, whilst these obligations differs substantially as regards to the legitimate scope and limitations of the right to the point where it must be said that there is a conflict of norms.

The entry into force of the Lisbon Treaty, which stipulates that the EU shall accede to the European Convention of Human Rights and Fundamental Freedoms (ECHR), might have a harmonizing effect on the supranational obligations on states to protect the right to strike. Since the rulings of the ECJ could thus be subjected to a Strasbourg proceeding on the grounds of violation of a human right, its current position on the right to strike most likely will have to be revised and the adoption by the ECJ of the same basic assumption as the ECtHR when it comes to rights-protection is a likely way in which this will happen. The Lisbon Treaty could also prove to have substantial influence on the balancing of rights and freedoms in the ECJ in cases of fundamental rights through the increased focus on social values in the Treaty-texts, which could imply the need for the ECJ to show a greater respect to national systems of social policy.

• author: Matsson, Ulrika
• supervisor: Lee Swepston
• organization: Department of Law
• course: JURM01 20112
• year: 2011
• type: H3 - Professional qualifications (4 Years - )
• subject: Law and Political Science
• keywords: Laval right to strike European Union EU-law Sweden labour law trade unions rights human rights
• language: English
• id: 2220241
• date added to LUP: 2011-12-27 12:05:26
• date last changed: 2011-12-27 12:05:26