The ECJ judgments are not only jeopardising the exercise of rights which are constitutionally protected in a number of Member States.; they are also creating considerable tension between international standards and Union’s law.
ILO Convention C87 on Freedom of Association and Protection of the Right to Organise has been ratified by all the EU Member States. In March 2010, the Committee of Experts of the International Labour Organisation expressed serious concerns about practical limitations on the effective exercise of the right to strike as a result of the ECJ judgments. The ILO experts considered that a violation of the Convention was therefore likely to occur.
The entry into force of the Lisbon Treaty has sent a strong signal that the Union is committed to the respect of fundamental rights. In particular, the Charter of Fundamental rights has become legally binding and the Union is now negotiating its accession to the European Convention on Human Rights. In recent judgments, the European Court of Human Rights has unanimously ruled that the right to strike is a human right recognised and protected in international law and, as such, can only be limited in strictly defined circumstances (cases Demir and Baykara of 12.11.2008, and Enerji of 21.04.2009). In the Laval and Viking, the ECJ ruled on the contrary that it is the economic freedoms – not the fundamental rights - that could only be limited in strictly defined circumstances.
The ETUC is convinced that the case law of the European Court of Justice is no longer sustainable in the light of new legal developments. In order to accelerate the revision process, the ETUC is pressing the case for a Social Progress Clause to be attached to the EU Treaties.