Comparing CJEU Approaches to Clashes of Social Partners’ Collective Bargaining with Internal Market Freedoms and Competition Rules

Abstract

The EU Court of Justice (CJEU) approach to solving cases of clashes of collective bargaining with the freedoms of the internal market is noticeably different from how the same Court resolves clashes of collective bargaining with the rules of economic competition. This difference has been the subject of disputes before the CJEU, but to date it persists despite the tensions that it raises due its practical consequences. The problem lies in the fact that while the CJEU is very accommodating towards the collective bargaining process in antitrust cases, it is strikingly unfriendly in cases involving the freedoms of the internal market. In them, the CJEU constantly assesses the exercise of the fundamental right to collective bargaining and action as a possible exception to the freedoms of movement that could only be justified by an overriding reason in public interest provided its defence passes the strict proportionality test. The study examines whether such a different approach is legally justified and concludes that the real problem lies not so much in the diversity of approaches as such, but in how deep and significant this difference is. In the end, the study seeks to offer a solution that would remove this sharp contradiction and the socio-political tensions that are caused by it.

Keywords: EU Court of Justice, collective bargaining, fundamental social rights, freedoms of the internal market, protection of competition, proportionality test