The Protection of the Fundamental Right to Strike within the Context of the European Internal Market: Implications of the Forthcoming Accession of the EU to the ECHR

Abstract

The possible accession of the EU to the ECHR raises questions about the compatibility of the systems of fundamental rights protection that are inherent in each of these European legal orders. This holds especially true for the protection of fundamental trade unions' rights furthering the social interests of workers, because these may clash with fundamental economic freedoms, the latter being singular rights that are common to the Union's legal order only. This submission examines recent benchmark cases decided by the ECJ and the ECtHR in respect of, especially, the fundamental right to collective action. On the basis thereof, a legal comparison is drawn that discusses the apparent incoherencies in the approach of the respective European courts. In a final analysis the issues underlying this conflict are explored, as well as some possible legal and political solutions to the problems that are presumed to arise. Nevertheless, the conclusion is drawn that the chances of 'a high noon conflict' between both European courts, once the accession of the EU to the Convention will be a fact, are hardly remote.