Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/3.3.4.5:3.3.4.5 The aftermath

Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/3.3.4.5

3.3.4.5 The aftermath

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

122. The trade unions have tried to challenge the constitutionality of the judgment by the Arbetsdomstolen before Sweden’s Supreme Court. However, in the summer of 2010 the Supreme Court denied the request.1 Further, as a result of the Court of Justice’s judgment and the domestic judgments in Laval, the Swedish legislature adopted the Lex Laval, which grosso modo confirms the judgment of the Arbetsdomstolen.2 When the social democrats won the Swedish elections in 2014, a committee was appointed to review the Lex Laval.3As a result of the review the Lex Laval was repealed again per June 2017 and replaced by new rules.4 Under the new rules trade unions are permitted to take collective action with the aim to force the posting employers to sign collective agreements setting out minimum terms and conditions5, regardless of the terms and conditions already used by the posting employer.6 The new rules are supposed to safeguard the Swedish labour market model and the status of collective agreements in situations involving posted workers.7

123. The trade unions filed a complaint to the International Labour Organisation in order to denounce the Lex Laval as well as the Arbetsdomstolen for its Laval judgment. In its observation of February 2013, the Committee of Experts of the International Labour Organisation has criticised the Arbetsdomstolen as well as the Lex Laval in the context of Convention 87 on the freedom of association and protection of the right to organise.8 Also, in June 2012, the trade unions filed a complaint to the European Committee on Social Rights (ECSR).9 Approximately a year later, the ECSR deemed the Lex Laval in conflict with the right to collective action as entrenched in Article 6(4) of the European Social Charter (ESC).10 The ECSR holds that “restrictions on the right to take collective action in the name of the exercise of economic freedoms should be proportionate provided that those freedoms cannot be treated, from the point of view of the system of values, principles and fundamental rights embodied in the Charter, as having a greater a priori value than core labour rights”.11 Hence, the ECSR laments the alleged hierarchical approach taken by the Court of Justice.12 Further, in February 2014 the Committee of Ministers of the Council of Europe adopted a Resolution emphasizing Sweden’s violations of the ESC.13 This Resolution is legally binding upon Sweden, but the ESC’s enforcement mechanism is rather weak. Although the Resolution does not have any impact on the outcome of the concrete case between Laval and the trade unions, it is axiomatic that the Resolution and the ECSR’s decision increase the tension between the ECSR and the EU.14

Deze functie is alleen te gebruiken als je bent ingelogd.