European Court of Human Rights

“Article 11- Freedom of assembly and association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

“154. Consequently, the Court considers that, having regard to the developments in labour law, both international and national, and to the practice of Contracting States in such matters, the right to bargain collectively with the employer has, in principle, become one of the essential elements of the ‘right to form and to join trade unions for the protection of [one’s] interests’ set forth in Article 11 of the Convention, it being understood that States remain free to organise their system so as, if appropriate, to grant special status to representative trade unions. Like other workers, civil servants, except in very specific cases, should enjoy such rights, but without prejudice to the effects of any “lawful restrictions” that may have to be imposed on ‘members of the administration of the State’ within the meaning of Article 11 § 2-a category to which the applicants in the present case do not, however, belong (see paragraphs 106-07 above).”

“59. In the absence of any exceptional circumstances, the Court finds it difficult to accept that upholding the principle of parity in collective bargaining is a legitimate aim (see paragraph 57 above) capable to justify depriving a trade union for three years and eight months of the most powerful instrument to protect occupational interests of its members. That is especially so in the present case where the applicant union was in that period not allowed to strike to pressure the Government of Croatia to grant doctors and dentists the same level of employment-related rights the Government had already agreed upon in the Annex, which had been invalidated on formal grounds only. It follows that the interference in question cannot be regarded as proportionate to the legitimate aim it sought to achieve.”

“1. Social dialogue, the regular and institutionalised dialogue between employers’ and workers’ representatives, has been an inherent part of European socio-economic processes for decades. The rights to organise, to bargain collectively and to strike-all essential components of this dialogue-are not only democratic principles underlying modern economic processes, but fundamental rights enshrined in the European Convention on Human Rights (ETS No. 5) and the European Social Charter (revised) (ETS No. 163).

2. However, these fundamental rights have come under threat in many Council of Europe member States in recent years, in the context of the economic crisis and austerity measures. In some countries, the right to organise has been restricted, collective agreements have been revoked, collective bargaining undermined and the right to strike limited. As a consequence, in the affected countries, inequalities have grown, there has been a persistent trend towards lower wages, and negative effects on working and employment conditions have been observed.

3. The Parliamentary Assembly is most concerned by these trends and their consequences for the values, institutions and outcomes of economic governance. Without equal opportunities for all in accessing decent employment and without appropriate means of defending social rights in a globalised economic context, the inclusion, development and life chances of whole generations will be put into question. In the medium term, the exclusion of certain groups from economic development, the distribution of wealth and decision making could seriously damage European economies and democracy itself.

4. Investing in social rights is an investment in the future. In order to build and maintain strong and sustainable socio-economic systems in Europe, social rights need to be protected and promoted.

5. In particular, the rights to bargain collectively and to strike are crucial to ensure that workers and their organisations can effectively take part in the socio-economic process to promote their interests when it comes to wages, working conditions and social rights. ‘Social partners’ should be taken to mean just that: ‘partners’ in achieving economic performance, but sometimes opponents striving to find a settlement concerning the distribution of power and scarce resources.”

“Article 8

1. The States Parties to the present Covenant undertake to ensure:

• (a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
• (b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;
• (c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
• (d) The right to strike provided that it is exercised in conformity with the laws of the particular country.

2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.

…”

“Article 4

Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation 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.”

“Workers covered by collective bargaining

209. With the exception of organizations representing categories of workers which may be excluded from the scope of the Convention, namely the armed forces, the police and public servants engaged in the administration of the State, recognition of the right to collective bargaining is general in scope and all other organizations of workers in the public and private sectors must benefit from it. However, the recognition of this right in law and practice continues to be restricted or non-existent in certain countries. This situation has given the Committee cause to recall that the right to collective bargaining should also cover organizations representing the following categories of workers: prison staff, fire service personnel, seafarers, self-employed and temporary workers, outsourced or contract workers, apprentices, non-resident workers and part-time workers, dockworkers, agricultural workers, workers in religious or charity organizations, domestic workers, workers in EPZs and migrant workers. The Committee further emphasizes that the right to collective bargaining should be recognized for teaching personnel and managerial personnel in educational institutions, as well as staff engaged in technical and managerial functions in the education sector.” (Footnotes omitted.)

• “1. The following shall be prohibited as incompatible with the internal market; all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:
  • (a) directly or indirectly fix purchase or selling prices or any other trading conditions;
  • (b) limit or control production, markets, technical development, or investment;
  • (c) share markets or sources of supply;
  • (d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
  • (e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
• 2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.
• 3. The provisions of paragraph I may, however, be declared inapplicable in the case of:
  • • any agreement or category of agreements between undertakings,
  • • any decision or category of decisions by associations of undertakings,
  • • any concerted practice or category of concerted practices, which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not
    • (a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;
    • (b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.”

“59. It is beyond question that certain restrictions of competition are inherent in collective agreements between organisations representing employers and workers. However, the social policy objectives pursued by such agreements would be seriously undermined if management and labour were subject to Article 85(1) of the Treaty when seeking jointly to adopt measures to improve conditions of work and employment.”

“60. It therefore follows from an interpretation of the provisions of the Treaty as a whole which is both effective and consistent that agreements concluded in the context of collective negotiations between management and labour in pursuit of such objectives must, by virtue of their nature and purpose, be regarded as falling outside the scope of Article 85(1) of the Treaty.”

• “22. it is to be recalled that, according to settled case-law, although certain restrictions of competition are inherent in collective agreements between organisations representing employers and employees, the social policy objectives pursued by such agreements would be seriously compromised if management and labour were subject to Article 101(1) TFEU when seeking jointly to adopt measures to improve conditions of work and employment (see judgments in Albany, EU:C:1999:430 , paragraph 59; International Transport and Workers’ Federation Finnish Seamen’s Union , C-438/05, EU:C:2007:772 , paragraph 49 and 3F v Commission , C-319/07 P, EU:C:2009:435 , paragraph 50).
• 30. a provision of a collective labour agreement, such as that at issue in the main proceedings, in so far as it was concluded by an employees’ organisation in the name, and on behalf, of the self- employed services providers who are its members, does not constitute the result of a collective negotiation between employers and employees, and cannot be excluded, by reason of its nature , from the scope of Article 101(1) TFEU .”

“Article 6- The right to bargain collectively

Part I: All workers and employers have the right to bargain collectively.

Part II: With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake:

• …
• 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;
• …”

“perform for an employer, under a works or service contract, the same activity as that employer’s workers, are ‘false self-employed’ and hence are not to be regarded as undertakings but as the equivalent of employees and so outside the scope of Article 101(1) TFEU . They are thus permitted to exercise the right to bargain collectively.”

• (a) a class of worker specified in Schedule 4 ; or
• (b) a class of false self - employed worker or fully dependent self - employed worker specified in an Order made by the Minister under s.15F .

• 1. actors engaged as voice-over actors;
• 2. musicians engaged as session musicians; and
• 3. journalists engaged as freelance journalists.

• (a) a class of worker specified in Sch.4 ; or
• (b) a class of false self-employed worker or fully dependent self-employed worker specified in an Order made by the Minister under s.15F .

• 1. actors engaged as voice-over actors;
• 2. musicians engaged as session musicians; and
• 3. journalists engaged as freelance journalists.