Unions’ Freedom to Establish and Provide Services

Abstract

Concern has been growing, especially since the Viking and Laval opinions, that business rights are unjustly trumping democracy and labour rights. Those cases reviewed the proportionality of collective action by trade unions on the assumption that strikes infringed business rights to establish and provide services. But the Court of Justice never had submissions on the rights of trade unions to establish and provide services to their members. A plain reading of the Treaty on the Functioning of the European Union compels the conclusion that union freedoms are protected by law. If the Court had turned its attention to those rights, it would have found a union taking collective action cannot violate a business’ right of establishment or service provision, any more than a business can violate rights of another business by fairly outcompeting it. Conflicting rights to establish and provide services cancel each other out. From this perspective, labour rights are not merely overriding interests and human rights. Labour rights form the general principles underpinning the European Union. The explicit acknowledgement of trade union freedoms is desirable in law and to advance the EU’s social and economic aims.