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7 Οκτ 2013 (πριν από 4 χρόνια και 1 μήνα)

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Warwick Business School

Warwick Business School

Introduction: issues at stake


The Laval quartet as an instance of regulatory
competition:
Viking
,
Laval
,
Rüffert

and
COM v
Luxembourg


Implications for the EU regulatory model, i.e.
reflexive harmonisation v regulatory competition


Implications for the national systems of labour market
regulation in the areas of industrial action, collective
standard
-
setting and social clauses in public
procurement

Warwick Business School

The origins of the EU social model


Ohlin and Spaak reports: rejection of legally driven
-
harmonisation of labour laws


Presumption that the improvement of labour standards would
occur spontaneously through the operation of the common
market


Supranational removal of barriers to the movement of goods
and resources coupled with national social policy regulation


Exclusion of EU legislative competence in a number of fields
(pay, association, strike and lock
-
outs)




Warwick Business School

The evolution of the EU social model


Adoption of labour law directives (in specified areas) as
establishing a ‘floor of rights’ (Deakin and Wilkinson, 1994)


EU recognition of the benefits of dynamic labour standards, as
determined in autonomous systems of collective bargaining
(e.g. Sweden and Denmark)


Open Method of Coordination: as an example of reflexive
harmonisation


Reflexive harmonisation: supports divergence and mutual
learning between systems, use of procedural norms instead of
pre
-
emption (Deakin, 2008)

Warwick Business School

The EU social model before the Laval
quartet: specific issues (1)


Use of the non
-
discriminatory approach by the ECJ as the
underlying test for the compatibility of national rules with free
movement (Barnard, 2008)


ECJ awarded states some discretion in terms of imposition of
labour standards on posted workers: ‘Community law does not
preclude Member States from extending their legislation, or
collective labour agreements entered into by both sides of
industry, to any person who is employed, even temporarily,
within their territory, no matter in which country the employer
is established’ (
Rush Portuguesa
, para 18)


But posted workers do not have access to the labour market of
the host state’ (
Rush Portuguesa,
para 15)


Warwick Business School

The EU social model before the Laval
quartet: specific issues (2)


Posted Workers Directive (PWD) (96/71/EC): lays down the
degree of protection for posted workers on work and
employment conditions that are to be determined by statutory
or administrative rules and/or (in the construction sector) by
collective agreements extended erga omnes or by arbitration
awards


Adoption by the ECJ of the ‘market access’ approach: asks
whether the national rule hinders the ability of the outside actor
to gain access to the market or to exercise freedom of
movement (Barnard, 2008)


Warwick Business School

The decisions in the Laval quartet:
Viking
(C
-
348/05)


Viking route between Helsinki and Tallinn (crew were
members of the Finnish trade union); decision to reflag the
Rosella by registering it in Estonia and entering into a
collective agreement with an Estonian union (for lower wages);
ITF circular requesting to abstain from negotiations


ECJ decision: recognition of the right to take collective action;
but its exercise may be subject to restrictions; collective action
by a trade union is subject to article 49 TFEU (‘horizontal
direct effect’); use of proportionality test with regard to trade
union rights

Warwick Business School

The decisions in the Laval quartet:
Laval
(C
-
341/05)


Construction contract in Vaxholm (Sweden) won by a Swedish
subsidiary of Laval; use of Latvian posted workers; breakdown
of negotiations between Laval and the Swedish unions;
blockage of the site and solidarity action from other unions


Although protected by Swedish national law (i) industrial
action by Swedish unions, (ii) designed to compel a Latvian
contractor to pay Swedish rates determined by a Swedish
collective agreement to his Latvian workers employed on
Swedish building sites, (iii) was precluded by the TFEU
(article 56) and the PWD (article 3).


PWD interpretation: switch from a minimum to a maximum
directive

Warwick Business School

The decisions in the Laval quartet:
Rüffert (C 346/06)


A Polish subcontractor (i) cannot be required by the law of
Lower Saxony, (ii) to pay his workers posted from Poland, (iii)
the terms of a collective agreement in force at a site where the
work was being carried out


German law requirement to comply with local collective
agreements as an unjustifiable restriction on the freedom to
provide services and the PWD


Meanwhile, the BVerfG had held that an equivalent provision
in a Berlin law was constitutional, without considering the EU
issues


Warwick Business School

The decisions in the Laval quartet:
COM
v Luxembourg (C
-
319
-
06)


Luxembourg acted in breach of the Treaty (article 56) and the
PWD on a number of grounds by requiring posting employers
to comply with standards beyond those laid down in the
Directive (including a procedure for the automatic indexation
of wages)


Limits on the scope of article 3(10) of the PWD which permits
measures beyond the minimum set our in the Directive ‘in the
case of public policy provisions’

Warwick Business School

It’s free movement, stupid! The impact of
the Laval quartet at national level


Court striking a balance between EU freedoms and
fundamental rights by way of a restriction of the latter: EU as a
‘communist market economy’ (Supiot, 2008)


Potential for destabilisation of national systems, especially of
those relying on collective autonomy of the social partners
(Malmberg and Sigman, 2008); potential for social tensions
between different groups of workers


But Member States can respond by adjusting national laws to
avoid Court rulings (Barnard and Deakin, 2010)


National responses influenced by the complementarity between
institutions and the balance of interests between the main
parties (Menz, 2005)



Warwick Business School

Industrial action and collective standard
-
setting (1)


Balance of interests in the Nordic states: contrast between
significant consensus achieved in Denmark and opportunity for
national changes in Sweden


Denmark: amendment of the Posting of Workers Act in 2009;
trade unions may use industrial action against foreign providers
in order to conclude collective agreements that regulate pay for
posted workers provided certain conditions are met


Sweden: adoption of Lex Laval in 2010; trade unions may take
industrial action against foreign providers provided certain
conditions are met (including an ‘evidential requirement’);
court decision on trade union liability for industrial action


Warwick Business School

Industrial action and collective standard
-
setting (2)


Luxembourg: 2010 amendment of the specific issues of the
Posted Workers law that were criticised by the ECJ but
maintenance of the overall national social policy


Germany: recognition of the right to strike but different
interpretation of the proportionality principle; no amendment
of the Posted Workers Act but possibility of erosion of the
protection offered by the freedom of association (Bücker,
2010)


UK:

Viking
as a useful point of reference for trade unions;
perceived ‘chilling effect’ of the decisions on industrial action;
increased litigation by employers and unions; collective
disputes involving posted workers (e.g. Lindsey Oil refinery)

Warwick Business School

Labour clauses in public procurement


Germany: no action at federal level; initial suspension of state
provisions; adoption later of an opposite trend towards the
incorporation of social criteria in public procurement in order
to promote fair competition; case law illustrating a critical
appreciation of the Rüffert case


The Nordic countries: ratification of ILO Convention no 94 by
Denmark and Norway; no movement towards amending the
legislation


UK: denouncement of ILO Convention no 94 in 1982; issues
arising out of the Living Wage Campaign

Warwick Business School

The race to court as race to the bottom?


Impact of case law: deepening of the EU integration process
(Barnard and Deakin, 2010)


European Commission’s stance moving from ‘no action’ to a
search for solution (perhaps a directive on enforcement)


Division of opinion between the EU social partners and the
Member States


European Court of Human Rights: recent case law affirming
the right to bargain collectively (
Demir and Baykara
) and the
right to strike (
Enerji Yapi
-
Yol Sen
)



Warwick Business School

Further research


Four
-
country qualitative study on the socio
-
legal implications
of the ECJ case law


Countries: two host states (UK and Sweden) and two home
states (Latvia, Poland and/or Portugal)


Objective: to assess the impact of the case law on collective
standards and industrial action in the host states and the
possibilities for change in the home states, paying particular
attention to developments leading to a ‘race to the top’ or
‘bottom’ of the national protection systems and to relate this
back to the notion of the European social model