The European Court of Justice and Trade Union Power in Europe

Lorenzo Cecchetti’s chapter defines and contextualises the legal approach taken by the CJEU in its case law relating to trade unions in the twenty-first century. Most notably, it explores the extent to which the judicialisation of social rights in the EU, particularly after the entry into force of the EU’s Charter of Fundamental Rights (CFR) as a binding instrument in 2009 following the adoption of the Treaty of Lisbon, can be seen as a manifestation of trade union power. This analysis thus considers the recourse to law by unions as a method of promoting solidarity by taking a closer look at the CJEU’s case law, with a focus on cases where unions have been involved in proceedings which relate to EU social law and fundamental rights as enshrined in Title III (‘Equality’) and Title IV (‘Solidarity’) of the CFR. Specific attention is devoted to a recent judgement of the Court in 2019, Case C-55/18, Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE. This judgement is characterised by important factors with immediate relevance for the trade union movement, including the court’s examination of the CFR’s rights which, in conjunction with relevant EU secondary law provisions, have been used by CJEU as the basis for the effective implementation of certain social rights, including as regards the limitation of working time on both a daily and weekly basis. This has resulted in an increase in the standard of protection of social rights in the EU vis-à-vis the national level, since, according to the Tribunal Supremo (Supreme Court of Spain)’s case law, Spanish law did not lay down any obligation of general application on employers to establish a system that would enable the duration of time worked each day by each worker to be measured. This judgement will be presented against the backdrop of the now notorious case law on the interaction and balancing operation between economic freedoms and collective social rights, in the Laval-quartet as well as in some more recent cases.