Fabbrini on Free Market and Right to Strike

Europe in Need of a New Deal: On Federalism, Free Market and the Right to Strike

Federico Fabbrini

European University Institute



Georgetown Journal of International Law, Vol. 43, 2012

Abstract:     
The paper analyzes the protection of the right to strike in Europe in a comparative perspective with the United States (US). The paper argues that the overlap and interplay between state law and European Union (EU) law in the field of industrial relations has generated major tensions. Although the protection of collective labour rights varies widely across EU member states, the development of a judge-made standard for the regulation of industrial action at the supranational level has challenged the effectiveness of the protection of the right to strike in most EU countries. In fact, the right to strike has been recognized at the EU level, but has been subjected to significant limitations in order to ensure free market principles. As the paper claims, nevertheless, the dynamics which Europe is currently experimenting are not sui generis and rather reveal numerous analogies with the constitutional experience of the US. For long time tensions between social rights guarantees and free market rules have characterized the US because of the interaction between state and federal law. During the New Deal, however, the US found a way to address the challenge of protecting labour rights in a federal system committed to the free market by enacting federal legislation such as the Wagner Act. The paper hence explores how additional reforms may be envisaged in the EU constitutional system to strengthen collective labour rights vis-à-vis free market principles and advances the argument that Europe should enact an EU regulation setting a standard for the protection of strike action in labour-management disputes having a cross-border dimension. Taking also into account the unprecedented effects of the current economic crisis, the paper concludes that if Europe wants to take the right to collective action seriously and strike a ne/w balance between market integration and social protections, it needs a New Deal.
Number of Pages in PDF File: 73

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2029145