The European Commission is considering authorising, in cases of posting of workers, restrictions on fundamental rights by economic freedoms and vice versa, "provided these do not go beyond what is appropriate, necessary and reasonable". It also places national courts in the country where the industrial action is planned or implemented in charge of ruling on any disputes.
This is what emerges from the so-called Monti II' draft regulation, seen by Europolitics social, which clarifies exercise of the right to take collective action in the context of economic freedoms in the single market.
The text, whose publication date is increasingly uncertain, forms part of the posting of workers package. With the draft directive on implementation of Directive 96/71/EC, its aim is to regulate situations where a worker is sent to a member state other than the one where he normally works, for a limited period and in the framework of providing a given service. The regulation also deals with restructuring and/or relocation situations involving more than one member state.
The Commission's objective is to reconcile two key principles: on the one hand, the right to take collective action to defend the rights of posted workers, including the right to strike, and on the other, economic freedoms, in particular freedom of establishment and freedom to provide services. Working on the basis of EU Court of Justice case law (Viking, Laval, Ruffert and Luxembourg cases), the Commission reiterates that there is no inherent conflict between these two concepts, nor does one take precedence over the other. Consequently, this equality of status implies that economic freedoms may be restricted in the interest of fundamental rights and vice versa. The executive nevertheless introduces a rebuttable presumption of lawfulness of collective action, whereby the action should be...