Article 28 - Right of collective bargaining and action
Key facts of the case:
(Request for a preliminary ruling from the työtuomioistuin (Finland))
(Temporary agency work — Directive 2008/104/EC — Article 4, paragraph 1 — Prohibitions or restrictions on the use of temporary agency work — Charter of Fundamental Rights of the European Union — Article 28 — Right of collective bargaining and action — Review of the compatibility with EU law of a clause in a collective agreement — Role of the national courts — ‘Horizontal’ dispute)
... in light of the foregoing considerations, I propose that the Court should answer the questions referred by the työtuomioistuin for a preliminary ruling as follows:
Compatibility with Article 28 of the Charter
67. The applicant in the main proceedings, relying on the principle of the autonomy of the social partners, also disputes that the prohibition on unjustified restrictions on the use of temporary agency work applies to clauses in collective agreements. It maintains that such clauses enjoy immunity as a result of the fundamental right to collective bargaining enshrined in Article 28 of the Charter.
68. I would observe that it is settled case-law that Articles 45 TFEU, 49 TFEU and 56 TFEU apply not only to acts of official bodies, but also to bodies of rules of other kinds intended collectively to govern employment, self-employment and the provision of services. The Court has confirmed on a number of occasions that collective agreements are not excluded from the scope of provisions relating to the freedoms protected under the Treaty. (31) Accordingly, where a measure or a collective agreement contains a provision restricting the use of temporary agency workers, it falls within the scope of Article 56 TFEU.
69. While the autonomy of the social partners is fully recognised in EU law, their right to negotiate and conclude collective agreements must be exercised in accordance with the law, including EU law. (32)
70. The Court has thus held that the social partners must comply with the provisions of secondary EU law which give specific expression to the principle of non-discrimination in the field of employment and occupation. The fact that secondary EU law might preclude a provision of a collective agreement does not interfere with the right to negotiate and conclude collective agreements recognised in Article 28 of the Charter. (33) If a provision in a collective agreement is precluded by EU law, the national court must disapply that specific provision. (34)
71. In my opinion, those considerations apply with equal force to Article 4(1) of Directive 2008/104, since it contains a mandatory rule that gives effect to a freedom protected by the Treaty and is not coupled with any derogation in favour of collective agreements. (35)
72. That approach is consistent with the fact that the provisions of EU directives in the field of employment law may be implemented not only by legislative means, but also by means of generally applicable collective agreements. Accordingly, pursuant to Article 11(1) of Directive 2008/104, the Member States are required not only to adopt the measures necessary to comply with the directive, but also to ensure that the social partners introduce the necessary provisions by way of agreement.
73. I see no valid reason to maintain that collective agreements should enjoy a privileged status by comparison with the legislation of the Member States and escape the application of EU rules.
74. Those considerations in no way imply that the freedom to provide services takes precedence over the right to collective bargaining. The fact that certain restrictions on the content of collective agreements may be laid down in mandatory rules does not interfere with the exercise of that fundamental right.
75. The right of collective bargaining enshrined in Article 28 of the Charter does not, therefore, preclude the interpretation of Article 4(1) of Directive 2008/104 according to which restrictions in collective agreements on the use of temporary agency work must be justified on grounds of general interest, failing which they must be declared incompatible with EU law.