Free movement, equal treatment and workers' rights: can the European Union solve its trilemma of fundamental principles?

Abstract

This article analyses the trilemma the EU is facing concerning three fundamental principles on which the Community rests: free movement of services and labour; non-discrimination and equal treatment, and the rights of association and industrial action. With rising cross-border flows of services and (posted) labour after the Eastward enlargement, the conflict between these rights has triggered industrial disputes and judicial strife. In the view of the European Court of Justice (ECJ), highlighted in the Laval Quartet, some principles are more fundamental than others. Tracing the 'dual track' along which European integration has evolved, whereby supranational market integration has been combined with national semi-sovereignty in industrial relations and social policies, our claim is that the supremacy of free movement over basic social rights implied by the ECJ judgments is leading Europe in a politically and socially unsustainable direction. To prevent erosion of the European Social Models and of popular support for European integration, the politicians have to reinsert themselves into the governance of the European project. A pertinent start would be to ensure that the rising mass of cross-border service workers in Europe become subject to the same rights and standards as their fellow workers in the emerging panEuropean labour market.

Nordic Economic Policy Review

“…Contrasted e.g. with the wired borders between Mexico and USA within NAFTA, the introduction of free movement of labour and services among European countries with comparable wage and welfare gaps -in 2004 ranging from 1:7 to 1:10 in nominal wages -is unprecedented and can be viewed as an ultimate "laboratory of globalization in one continent" (Dølvik and Visser, 2009). For affluent "old" EU/EEA states, such as the Nordics, this has implied a veritable supply-side shock in the labour market -especially at its lower ends.…”

Stepping up to strike: a union mobilization case study of Polish migrant workers in the Netherlands

“…Four influential ECJ judgments, also referred to as the 'Laval quartet' 9 , have fuelled the debate and changed the level playing field with regards to posting. These forced countries to change regulations and trade union practices, as the rulings constrained trade union bargaining rights and rights to collective action (Dølvik and Visser 2009;Woolfson and Sommers 2006;Bengtsson 2014). While the impact of the Laval quartet decisions was limited on the regulatory context and on trade union practices in the Netherlands 10 , posted workers have become an increasing migrant group over the years, especially in the Dutch construction sector.…”

“…Violations of migrants' labour rights and cases of social dumping have been reported across Europe and firms' regulatory non-compliance (in various degrees) become systematic due to the blurring boundaries of EU regulatory frameworks (Cremers 2011;Houwerzijl 2014;Lillie et al 2014;Van Hoek and Houwerzijl 2011;Lillie 2010;Lillie 2012). All the while national industrial relations systems seem to have become ill adapted to effectively deal with the social consequences and downward labour market pressures of recent intra-EU mobility (Wagner 2014;Lillie 2012;Woolfson and Sommers 2006;Dølvik and Visser 2009). 2 While employers have been experimenting with EU mobility frameworks, pushing and transgressing its boundaries, trade unions and enforcement authorities have struggled to keep up with the sheer number of migrants temporarily working in their constituency and with the variety of employment arrangements used by employers to reduce labour costs.…”

“…This EU market logic has conflicted with certain national industrial practices. European Court of Justice rulings (the 'Laval quartet' 62 ), for instance, prevent nation states and trade unions from taking measures that impinge on freedom of movement within the EU (Woolfson and Sommers 2006;Dølvik and Visser 2009). While the Laval quartet case law had limited impact on the Dutch regulatory and industrial relations context (Houwerzijl 2010), the growth of posted and other types of temporary workers sometimes presented as posted workers, whose labour rights are regularly violated, has impacted sectors of the Dutch labour market substantively.…”

“…Arguably, hyper-mobile workers represent an existential challenge to union regulation and collective bargaining in many EU countries. Research has shown that the EU regulatory regime and employer strategies complicate unions' ability to organise and represent these workers (Cremers 2011;Wagner 2014;Dølvik and Visser 2009;Kilpatrick 2009), and that unions in many places need to develop new strategies given the diverse workforces they encounter (Connolly et al 41 This chapter is co-authored with Nathan Lillie and forthcoming in Eldring et al 2012;Bengtsson 2013;Greer et al 2013;Kahmann 2006). This chapter shows using the Eemshaven example, that even in the Dutch case, where the labour law is relatively favourable, and the union representation strategy well-resourced and sophisticated, the unions were unable to arrive at a sustainable way to represent hyper-mobile workers.…”