Faro, Antonio Lo --- "Toward a De-fundamentalisation of Collective Labour Rights in European Social Law?" [2011] ELECD 892; in Moreau, Marie-Ange (ed), "Before and After the Economic Crisis" (Edward Elgar Publishing, 2011)

Book Title: Before and After the Economic Crisis

Editor(s): Moreau, Marie-Ange

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849809924

Section: Chapter 13

Section Title: Toward a De-fundamentalisation of Collective Labour Rights in European Social Law?

Author(s): Faro, Antonio Lo

Number of pages: 14

Extract:

13. Toward a de-fundamentalisation
of collective labour rights in
European social law?
Antonio Lo Faro

INTRODUCTION

A sort of double antithesis is emerging within the juridical representa-
tion of Europe. Social rights v. Economic freedoms is the first; Individual
employment rights v. Collective labour rights is the second. Whereas many
comments have been devoted to the former, scarce attention has been
given to the latter.
Though, a certain degradation of collective labour rights is precisely
one of the main side-effects of the new `post-enlargement' jurisprudence
steadily put forward by the European Court in cases such as Laval, Viking
and Rüffert. A streak of cases which seems to be further prolonged by the
recent Germany case,1 an infringement procedure ­ addressed to a German
law allowing to award service contracts related to occupational pensions
to bodies designated by collective agreements ­ which the Court decided
according to the statement that `the exercise of the fundamental right to
bargain collectively must [therefore] be reconciled with the requirements
stemming from the freedoms protected by the FEU Treaty'.
Most probably, it was not by mere chance that the lesser status of social
rights vis-à-vis economic freedoms has been stated by the Court precisely
in cases where a collective aspect of the labour relations was at stake: the
right to strike in the two `Nordic' cases; the right to collective bargaining

1 Case C-271/08 of 15 July 2010, European Commission v. Federal Republic of

Germany. Having recalled that `the ...