15 December 2014

Below is a short blog by John Foster on a presentation given by Keith Ewing. The paper was initially presented in Dublin followed by an updated version in Paris. A copy of that full version is attached.

“As Delors had the wisdom to realise, without enforceable rights workers in some countries may rightly feel that they have no reason to support continuing membership of the EU. If Draghi is right that Social Europe is dead, then so is the EU. The latter message is one we have a duty to express loudly and clearly”.

This was the conclusion of a paper that Professor Keith Ewing gave to a conference of progressive lawyers in Paris on 15 November this year.

Professor Ewing’s paper reviewed the status of EU treaty law on collective bargaining since the 1980s. He ended with the stark warning that whatever was gained under Delors has already been seriously undermined and is now directly at risk from the provisions of the Trans-Atlantic Trade and investment Partnership and other free trade treaties.

Professor Ewing noted the importance of Delors’s 1988 declaration on collective bargaining and its inclusion in the 1992 Maastricht Treaty. As developed in subsequent EU legislation and legal judgments, this did require dialogue between employers and trade unions.

It also, critically, gave legal force to the incorporation of EU regulations on labour standards within national collective bargaining structures where these had a basis in national law. Across most of Europe where trade union rights were embodied in constitutions the result was to enhance standards – although where, as in Britain, there was no legal basis to collective bargaining, the impact of the EU’s provisions was far weaker.

Now, however, all this is not just at risk but is already largely undermined. Ewing highlights three factors that have transformed the situation. First, the conditions enforced on debtor countries in 2010-11. Second, the EuroPlus Pact and the National Reform Programmes being imposed on all deficit countries. Third, the likely impact of the free trade treaties in undermining labour standards.

As a condition for bailout, countries such as Romania and Greece were compelled, by the EU-led Troika, to end their national structures for collective bargaining in order to secure wage flexibility. In Greece’s case this over-rode existing constitutional rights. Subsequently the EU took powers under Articles 120 and 121 of the Lisbon Treaty (TFEU) that require all member states to adopt wage setting structures that took account of differences in productivity and performance – i.e. ending national and sector wide collective bargaining.

Ewing also highlighted this year’s RMT finding by the European Court of Human Rights, which appeared to limit the earlier 2008 ECHR judgment on government obligations to uphold trade union rights by limiting this to ‘core functions’ and not accessory’ ones such as solidarity action.

Professor Ewing says the trade union movement has an obligation to wake up to the new realities. Referring to the title of the well-known text by Hayek, godfather of neo-liberalism, he warns ‘we are now genuinely being taken on a journey by way of The Road to Serfdom’.