Marco Rocca

Enemy at the (Flood) Gates: EU ‘Exceptionalism’ in Recent Tensions with the International Protection of Social Rights

During the Great Recession we are witnessing a growing tension between the actions of the EU institutions and the rights and values embodied by the ILO Conventions and the European Social Charter. The present contribution explores two case studies embodying this tension. The first section provides a brief historical account of the relationship between the EU and these legal orders. Sections two and three deal with two recent conflicts, in the areas of austerity policies and the case law of the Court of Justice. The contribution then looks, in section four, at the possibilities offered by the EU legal order for a more genuine commitment to respecting international standards of protection for social rights. Section five considers a different outcome of the conflict, exploring the possibility of a reduced commitment of the EU to the respect of international standards of protection of social rights. Section six is devoted to concluding remarks.

The Proposal for a (so-called) 'Monti II' Regulation on the Exercise of the Right to Take Collective Action within the Context of the Freedom of Establishment and the Freedom to Provide Services

After sketching out the current legal framework for fundamental rights protected under EU law this article discusses the role of free movement law in delimiting the scope of application of EU fundamental rights, the balancing of fundamental rights and free movement, and finally the possible horizontal direct effect of EU fundamental rights on private economic actors, in particular employers, exercising their right of free movement.

Florescu: A Memorandum of Understanding Finally before the Court

European Court of Justice; Memorandum; Romania; Right to Private Property; Fundamental Rights

Free movement of workers in the EU and occupational pensions: Conflicting priorities? Between case law and legislative interventions

The European Union appears to be promoting at the same time both cross-national mobility of workers and an increased role for occupational pensions. There is, however, a potential tension between these two objectives because workers risk losing (some of) their pension rights under an occupational scheme as a consequence of their mobility. After long negotiations, the EU has addressed this issue through a minimum standards Directive. Shortly before the adoption of this Directive, the Court of Justice also delivered an important decision in the same field, in the case of Casteels v British Airways. By analysing the resulting legal framework for safeguarding pension rights under occupational schemes in the context of workers’ mobility, we argue that the application of the case law developed by the Court of Justice in the field of free movement of workers has the potential to offer superior protection compared to the Directive. We also highlight the fact that the present legal framework seems to afford a much fuller protection to the intra-company cross-national mobility of workers employed by multinational companies, while also seemingly favouring mobility for highly specialised workers.

The Proposal for a (So-Called) ‘Monti II’ Regulation on the Exercise of the Right to Take Collective Action within the Context of the Freedom of Establishment and the Freedom to Provide Services: Changing without Reversing, Regulating without Affecting

On the 21 March 2012 the European Commission adopted its proposal for a Regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services. Conceived as both a response and a clarification of the case law of the Court of Justice, the new Regulation should address the widely debated problem of the relationship between fundamental freedoms and fundamental social rights. The present contribution seeks to identify the objectives of the proposal, through a critical reading of its text and of the explanatory memorandum, to assess its potential effect. The analysis is developed around two main themes: the relationship of the proposal with the recent case law of the European Court of Human Rights regarding the right to strike, and its consistency with the doctrine developed by the CJEU in Viking and Laval.

Case C-271/08, Commission v. Germany (2010)

in this case the court of Justice of the European union had once more to examine the interrelationship between fundamental economic freedoms guaranteed by the treaty and fundamental social rights. in the aftermath of Viking1, Laval2 and Rüffert3, this relationship has become one of the most debated topics in the discussion about social Europe. under this light, in analyzing the case, i will focus on this issue, although a large part of the judgment (and of the opinion) is in fact devoted to the calculations necessary to assess the respect of the thresholds established by the public procurement directive. The issue at stake in the infraction procedure was the direct awarding, by local authorities and local authority undertakings having more than 1218 employees4, of service contracts in respect of occupational old-age pensions, without call for tenders at European level, to bodies specified in collective agreements. such agreements were concluded between the Vereinigung der kommunalen Arbeitgeberverbände (Federation of Local authority Employer associations) and the Vereinte Dienstleistungsgewerkschaft eV (ver.di; united service sector union). This practice was considered by the commission as being in breach of council directive 92/50/ EEc of 18 June 1992 relating to the coordination of procedures for the award of public service contracts5, in conjunction with articles 23 to 55, of directive 2004/18/Ec of

Conference Report: Reconciling Fundamental Social Rights and Economic Freedoms after Viking, Laval and Rüffert (13 and 14 January, Brussels)

Three years have passed since the “judgment day”1, but the interest surrounding Viking and Laval (together with the other members of the quartet, Rüffert and Commission v. Luxembourg) is still high all across Europe. The conference “reconciling fundamental social rights and economic freedoms after Viking, Laval and rüffert”, held in brussels on 13–14 January 2011, gives evidence of this persisting trend. indeed, more than 80 registered participants (legal practitioners, trade unionists and civil servants coming from various European countries) attended the conference, which was jointly organized by the European trade union confederation and the university of Wismar. The purpose of the event was to present and discuss the results of a two-year long research aimed at assessing the impact of Viking, Laval and Rüffert on the national industrial relation systems of several member states (namely belgium, Germany, Hungary, italy, poland, the uK and the “Nordic countries”), which was coordinated by andreas bücker (university of Wismar) and Wiebke Warneck (Etui). The event, which took place in the premises of the European trade union institute, as well as the research project was financially supported by the European commission. after a short welcome address of andreas bücker, professor at the university of Wismar, Wiebke Warneck (researcher at the Etui) took the floor for an introductory speech aimed at presenting the research. building upon the consequences of the cJEu decisions on national industrial relations systems (explored in the national reports), Warneck identified the perspectives stemming from the findings: the multilevel regulation of the European labour market delivered by the courts and the need