For the first time in EU history, the Member States’ have used the “orange card procedure,” an alarm mechanism that allows national Parliaments to stop an EU initiative. The suspension of the so called Monti 2 Regulation concerning the exercise of workers’ collective trade union rights pleased many people as the proposal had been widely criticised.  However, what will happen now? The status quo is not acceptable as it is eroding the European citizens’ access to their rights.

The collective negative decision of the National Parliaments suspends the procedure for the adoption of this Regulation. According to the EU Treaties, the Commission now has three options:  withdraw the proposed regulation; modify the proposal; or maintain it, if the European Parliament and the Council still support the proposal.

Drafting the proposed Regulation had not been easy. The Commission had been asked to produce a Regulation clarifying the relationship between the exercise of fundamental trade union rights and more specifically the right to take collective actions such as strikes, and the respect of the EU’s economic freedoms (freedom of movement and of establishment and free provision of services).

Additionally, a number of conditions had to be respected, which made the drafting close to impossible. However, this task had been subject to a number of conditions: 1) the proposal cannot regulate strikes as this is explicitly prohibited in the EU Treaty; 2) the proposal should reflect the new situation of the Fundamental Rights in the EU’s legal system after the adoption of the Lisbon Treaty; and 3) it should not contradict the Court of Justice’s judgements in the Viking and Laval case, which de facto restricts the ability to strike across borders... In two words: mission impossible!

However, we believe that a solution to the problematic situation created after the Viking and Laval judgements is necessary. Today, the EU does not treat the fundamental right to take collective action and the economic freedoms in the same manner, as it gives precedence to the economic freedoms.

Following EU law, the economic freedoms cannot be restricted, unless by law on grounds of public policy, public security or public health. For the exercise of fundamental rights, EU law currently takes a different approach:  the right to collective action cannot be used unless the organiser proves in a costly, unpredictable and long judicial proceeding that their action is justified and proportional. This makes the actual use of this right de facto impossible.  

To remedy this situation, the ECA Conference has now adopted a statement addressed to the EU Institutions proposing a system that guarantees the respect of fundamental rights and ends this discriminatory approach. As for economic freedoms, ECA proposes a system where the exercise of fundamental union rights cannot be restricted unless by national law on grounds of public safety, public health or security. Consequently any collective action that is in compliance with the relevant national strike legislation will have to be deemed legal in the context of the European Union, and by European Courts. The ECA submission is available here.