This judgment had very much restricted the rights of trade unions in respect of posted workers on the basis of ‘fundamental economic freedoms’, which were considered as more important than fundamental social rights. Trade unions across Europe have always heavily criticised this jurisprudence.
In their complaint to the ECSR, the LO and TCO argued that the Swedish legislation was not in conformity with the right to strike and to collective bargaining as stipulated in the Revised European Social Charter. They also expressed the view that posted workers had to have the same rights as migrant workers. In its decision the ECSR has backed the trade union point of view.
ETUC General Secretary Bernadette Ségol welcomed this outcome: “This decision recognises the rights of trade unions to protect posted workers. It obliges the Swedish Government to bring its legislation and practice into conformity with these requirements. At the same time it indirectly criticises the Court of Justice’s jurisprudence for not taking social rights sufficiently into account. It therefore opens a new round of challenging this jurisprudence. The Court of Justice should now change its jurisprudence and give trade unions all collective rights which they need to protect posted workers efficiently.”
- ECSR decision on Swedish Laval legislation: http://www.coe.int/T/DGHL/Monitoring/SocialCharter/NewsCOEPortal/CC85AdmissMerits_en.asp
- ETUC positions on the Laval and related CJEU: http://www.etuc.org/etuc-demand-social-progress-protocol
- Further reading on the Laval and related CJEU (including on their impact), see ETUI website - http://www.etui.org/Topics/Social-dialogue-collective-bargaining/Social-legislation/The-interpretation-by-the-European-Court-of-Justice
Council of Europe's European Committee of Social Rights strengthens collective rights! Sweden's Laval legislation is violating the Revised European Social Charter