Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/3.3.5.1:3.3.5.1 The right to collective action in the Netherlands

Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/3.3.5.1

3.3.5.1 The right to collective action in the Netherlands

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.

124. In the Netherlands, the right to collective action is not regulated by any specific provision in national law.1 Instead, Article 6(4) ESC applies.2 In 1986 the Hoge Raad ruled that on the basis of Article 93 Grondwet this provision is directly applicable in the Netherlands.3 The provision reads:

“The right to bargain collectively

With a view to ensuring the effective exercise of the right to bargain collectively, the Parties [to the ESC; I.A.] undertake:

(1) to promote joint consultation between workers and employers;

(2) to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;

(3) to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes;

and recognise:

(4) the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.” [Emphasis added: I.A.]

The right to collective action can, as a rule, not be restricted and therefore collective actions falling within the scope of Article 6(4) ESC are in principle legitimate. However, Article G ESC [formerly: Article 31 ESC] states that the right to collective action can be restricted by way of exception. The provision stipulates:

“Restrictions

The rights and principles set forth in Part I when effectively realised, and their effective exercise as provided for in Part II, shall not be subject to any restrictions or limitations not specified in those parts, except such as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals.

The restrictions permitted under this Charter to the rights and obligations set forth herein shall not be applied for any purpose other than that for which they have been prescribed.” [Emphasis added: I.A.]

125. The open norm of Article G ESC has been concretised in Dutch case law, on the basis of which a collective action in the Netherlands is lawful, unless 1) there is an infringement of important rules of procedure concerning for instance the registration of the collective action or the ultimumremedium requirement,4 or 2) if, given the concrete circumstances of the case and taking into account the restrictions allowed on the basis of Article G ESC, the trade union(s) could not have reasonably decided to initiate the specific action at hand – i.e. the balancing of rights and interests.5 As a rule, Article 6:162BW on liability for tortious acts serves as the vehicle for the assessment of the lawfulness of a collective action.6

Deze functie is alleen te gebruiken als je bent ingelogd.