25 Amendments of Donata GOTTARDI related to 2008/2085(INI)
Amendment 1 #
Motion for a resolution
Title
Title
on Challenges to collective agreements and industrial relations in the EU
Amendment 11 #
Motion for a resolution
Recital B a (new)
Recital B a (new)
Ba. Whereas according to Article 136 EC, the Community and the Member States shall have as their objectives (...) “improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained”; and whereas with a view to achieving this objective, Article 140 of the EC Treaty provides that the Commission is to promote close cooperation between Member States in the social field, particularly in matters relating to the right of association and collective bargaining between employers and workers,
Amendment 22 #
Motion for a resolution
Recital F
Recital F
F. Whereas Aarticle 3(8).8 of the PWD gives the possibility to implement the directive either through legislation, generally applicable collective arrangements or through other collective agreements which are considered the most representative; the ECJ also affirms that other methods, e.g. the autonomous collective bargaining model, may be used, or through collective agreements that have been declared universally applicable, or that are generally applicable to all similar undertakings in the industry concerned or that have been concluded by the most representative employers’ and labour organisations at national level and which are applied throughout the national territory; the ECJ also affirms that since the purpose of Directive 96/71 is not to harmonize systems for establishing terms and conditions of employment in the Member States, they are free to choose a system at the national level which is not expressly mentioned among those provided for in the PWD; however, the ECJ at the same time has limited this freedom by adding the condition that this is only so ‘provided that it does not hinder the provision of services between Member States’, thereby questioning the subsidiarity principle,
Amendment 34 #
Motion for a resolution
Recital K
Recital K
K. Whereas the ECJ in the Albany judgement (C- 67/96) in the field of competition law gave substantial and large space for trade unions to regulate labour market issues; in fact, at that time the ECJ rejected the direct horizontal effect forsocial partners to adopt measures to improve conditions of work and employment; in fact, having regard to the social objectives of the EU, the ECJ rejected the application of competition rules on collective bargainingagreements,
Amendment 39 #
Motion for a resolution
Recital L
Recital L
L. Whereas the ECJ in both the Laval and Rüffert cases made a completely different interpretation of European legislation than the advocate general, showing that different interpretations of the PWD are possible,
Amendment 55 #
Motion for a resolution
Recital N
Recital N
Amendment 63 #
Motion for a resolution
Recital O
Recital O
O. Whereas the ECJ in the Viking case introduces a horizontal direct effect of Articles 43 and 49 which can be used by employers and service providers to challenge collective agreements and industrial actions with a cross-border effect; the autonomy for collective bargaining from competition rules is thereby not extended to the field of free movement with a risk that industrial relations in the Member States will be put under legal scrutiny; trade unions are consequently being treated as emanations of the state, which they are clearly not; this also means that trade unions – different from the state – cannot use public policy justifications; consequently, this new uncertainty in industrial relations could result in a “flood” of cases to the ECJ,
Amendment 74 #
Motion for a resolution
Paragraph 1
Paragraph 1
1. Underlines that the freedom to provide services is aone of the cornerstones of the European project; however, this has to be balanced against fundamental rights and the possibilitysocial objectives anchored in the Treaties and the right for governments and trade unions to ensure non-discrimination and equal treatment, and the improvement of living and working conditions;
Amendment 93 #
Motion for a resolution
Paragraph 3
Paragraph 3
Amendment 105 #
Motion for a resolution
Paragraph 4 c (new)
Paragraph 4 c (new)
4c. Emphasises that the freedom to provide services is not superior to the fundamental rights as laid down in the EU Charter of Fundamental Rights and in particular the right for trade unions to take industrial action, especially since this is a constitutional right in several Member States; emphasizes therefore that the ECJ rulings in Rüffert, Laval and Viking show that it is necessary to clarify that economic freedoms, as established in the Treaties, shall be interpreted in such a way as not infringing upon the exercise of fundamental social rights as recognised in the Member States and by Community law, including the right to negotiate, conclude and enforce collective agreements and to take collective action, and as not infringing upon the autonomy of social partners when exercising these fundamental rights in pursuit of social interests and the protection of workers;
Amendment 108 #
Motion for a resolution
Paragraph 5
Paragraph 5
5. Stresses that, even if – as the ECJ claimed in the Laval case – Article 3(7).7 of the PWD clearly states that trade unions should be able to demand terms and conditions of employment which are more favourable to workersmay have been drafted especially to ensure that the applicability of the mandatory rules of the host country as enumerated in Article 3.1 of the Posting Directive would not prevent the application of terms and conditions of employment which are more favourable to the worker pursuant to the law or collective agreements in the Member State of origin, the right of trade unions in the host country to demand terms and conditions of employment which are more favourable to workers can never be restricted as this is part of the fundamental right of freedom of association and collective bargaining;
Amendment 161 #
Motion for a resolution
Paragraph 11
Paragraph 11
11. Questions the introduction of a proportionality principle in the Viking case for the right to use collective action against undertakings which, when using the right of establishment or the right to provide services across borders, deliberately undercut terms and conditions of employment; such a proportionality principle is not compatible with the character of this right as a fundamental right; there should be no question about the right of trade unions to use industrial action to uphold equal treatment and secure decent working conditions;
Amendment 164 #
Motion for a resolution
Paragraph 11 a (new)
Paragraph 11 a (new)
11a. Emphasises that the EC’s economic freedoms cannot be interpreted as granting undertakings the right to exercise them for the purpose or with the effect of evading or circumventing national social and employment laws and practices, or for unfair competition on wages and working conditions; considers therefore that cross border actions of undertakings which may undercut terms and conditions of employment in the host country must be proportional and cannot be automatically justified by the Treaty provisions on free movement of services or freedom of establishment as such;
Amendment 180 #
Motion for a resolution
Paragraph 13
Paragraph 13
13. Regrets the fact that even though the PWD was formulated as a minimum standard directive, the ECJ determines that those minimum standards must be regarded as the maximum in the context of the Laval judgement; this approach causes great concerns as to whether any directives decided on the basis of a minimum approach are regarded as valid; if all directives in the social dimension were to be reformulated as maximum directives, as in the case of the PWD, the consequences would be enormous;
Amendment 187 #
Motion for a resolution
Paragraph 14
Paragraph 14
14. Regrets that theas a direct consequence of the ECJ’s interpretation of the PWD in the Rüffert judgment, the scope for the introduction and implementation of social considerations referred to in Articles 26 and 27 inof Directive 2004/18, do (Public Procurement Directive), has been limited and according to the ECJ cannot include anymore terms and conditions of employment which go beyond the mandatory rules for minimum protection as interpreted by the ECJ; draws attention to the fact that this may create problems of legal consistency and legal complications for the 10 EU Member States that have ratified ILO Convention 94;
Amendment 231 #
Motion for a resolution
Paragraph 19
Paragraph 19
19. Calls on all the Member States to implement and enforce the PWD properly;
Amendment 242 #
Motion for a resolution
Paragraph 20
Paragraph 20
20. Underlines that the ECJ has interpreted EU legislation in a way that was not the intention of the legislators;Expresses concerns that the ECJ rulings in the Viking, Laval and Rüffert cases have exposed loopholes, inconsistencies and weaknesses in European law and especially the PWD; therefore calls on the Commission, the Council and the EP to take immediate action to ensure the necessary changes in EU legislation to change the new practise of the ECJwhich would clarify the intentions of the legislators and lead to better regulation;
Amendment 247 #
Motion for a resolution
Paragraph 21
Paragraph 21
Amendment 273 #
Motion for a resolution
Paragraph 23 – indent 1
Paragraph 23 – indent 1
- a new or additional legal basis for the PWD to better protect workers; workers posted within the framework of services should be regarded as using the right of freedom of movement of workers and not, which would make reference to the free movement of workers provisions of the Treaty; it should be clarified that the free movement of services provisions were clearly intended to cover companies and self employed craftspersons and professionals providing services, whereas the moving around of workers would be covered by the free movement of serviceworkers provisions;
Amendment 274 #
Motion for a resolution
Paragraph 23 – indent 1 a (new)
Paragraph 23 – indent 1 a (new)
Amendment 275 #
Motion for a resolution
Paragraph 23 – indent 2
Paragraph 23 – indent 2
- a possibility in the Directive for Member States to refer in law or collective agrepublic procurements law to the 'habitual or prevailing wages' applicable on the basis of regulations or collective agreements in the place of work in the host country as defined in the ILO 94 and not only ‘minimum’ rates of payILO Convention 94;
Amendment 277 #
Motion for a resolution
Paragraph 23 – indent 5
Paragraph 23 – indent 5
- the recognition of a wider range of methods of organizing labour marketssetting terms and conditions of employment than those currently covered by Article 3(8) including in particular public procurement law;
Amendment 278 #
Motion for a resolution
Paragraph 23 – indent 5 a (new)
Paragraph 23 – indent 5 a (new)
- the recognition of Member States' wide margin of discretion in defining the public policy provisions referred to in Article 3.10 of the PWD, in accordance with the principle of subsidiarity;
Amendment 296 #
Motion for a resolution
Paragraph 25
Paragraph 25
25. Would welcome a move to summarize Urges the Commission, the Council and the European Parliament to ensure that also in primary law there is no ambiguity as to the fact that fundamental social rights are not hierarchically subordinate to the economic freedoms, as already recognized in secondary law, i.e. the social clauses that exist in the Monti directiveregulation and in the Services directive in a social clause, either, for instance through a protocol attached to the Treaty or in an inter- institutional agreementies at the next revision;
Amendment 304 #
Motion for a resolution
Paragraph 26 a (new)
Paragraph 26 a (new)
26a. Calls on the Commission to put forward the long awaited Communication on transnational collective bargaining proposing the establishment of a legal framework for transnational collective agreements;