2.2.4 Right to social dialogue

internal to the company and the employer can influence the strike by, for example, making concessions on working conditions. Finally, SAS had also argued that the obligatory compensation of flights cancelled due to a strike would infringe its freedom of enterprise (Article 16 EU Charter), its right to property (Articles 16 and 17 Charter EU) and its right to bargain (Article 28 EU Charter). The Court rejects this, among other things, because the risk that the airline will have to compensate for the cancelled flights does not mean that it must simply give in to all the demands of the employees. Moreover, the Court points out that the right to property and freedom of enterprise are not absolute rights and that, in this case, the interest of consumer protection is a justifiable objective for limiting these rights of the enterprise. This case thus represented a shared victory for the right of collective action and consumer law. This position of the Court was confirmed in the Eurowings case of 6 October 2021, where the same reasoning was applied to a solidarity strike by Eurowings staff with the staff of parent company Lufthansa.

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However, it is probably too soon to qualify the CJEU as an ardent supporter of the right to collective action. Therefore, whenever a specific case presents a conflict between the right to collective action and other rights or fundamental economic freedoms, it is recommended to think twice before aiming for a preliminary question to the CJEU.

71. PRINCIPLE 8 OF THE EUROPEAN PILLAR OF SOCIAL RIGHTS – Just like the right to collective bargaining, the right to collective action is included in the EPSR. However, this has not led to specific policy actions regarding collective actions (which is difficult seen the explicit exemption of the legislative competences of the EU) nor have the EU institutions gave recommendations to member states regarding e.g. a better respect for this right. therefore, until now, the EPSR does not have a real impact on the right to collective action.

2.2.4 Right to social dialogue

72. RECOGNITION AS PART OF THE RIGHT TO COLLECTIVE BARGAINING - While there is a clear right to collective bargaining and right to collective action, a right to social dialogue has not received the same interest or recognition. In the broad definition of collective bargaining, social dialogue itself, as a form of consultation necessary to start collective negotiations, could be included in that right. This is remarkable, because in theory social dialogue is the broader concept of which collective bargaining is a part. However, the better legal protection of the right to collective bargaining makes it tempting to include social dialogue in that protection. The need to include the right to social dialogue within the right to collective bargaining follows from its weak protection as an independent element. The international legal orders hardly ever explicitly mention a recognised right to social dialogue, except in ILO Recommendation No. 113 and in Article 6.1 ESC (but clearly as an accessory of the right to collective bargaining). Besides the connection to the right to collective bargaining, we could also claim that the right to social dialogue is formalised by the right to information and consultation, but the concept of social dialogue is broader than such a right to be informed or consulted for workers or worker representatives within the undertaking. The right to information and consultation is discussed in detail below in 2.2.5.

36 CJEU 6 October 2021, C-613/20, CS vs. Eurowings.

73. ILO RECOMMENDATION NO. 113 - In Recommendation 113, the ILO urges Member States to install consultation and cooperation procedures at the national and sectoral levels. But an ILO Recommendation lacks any binding effect. According to the ILO, social dialogue includes all forms of negotiation, consultation, information exchange, between or among representatives of governments and workers and employers on matters of common interest regarding economic and social policy. In their "UN Guiding Principles" paper, some major international workers' representatives adopt this definition, while stating, however, that there is no fundamental right to social dialogue, only a fundamental right to collective bargaining. 37 The ILO Committee on Freedom of Association has, however, stated in its Compilation of Decisions in the context of the right to collective bargaining that prior consultation of the social partners is certainly important in the event of changes to the collective bargaining system. The European Union defines (European) social dialogue in a similar way as "discussions, consultations, negotiations and joint actions involving organisations from both sides of industry (employers and employees)".

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74. ARTICLE 6.1 ESC - In addition, the legal order of the European Social Charter is the only one to explicitly recognise the right to social dialogue as part of the right to collective bargaining in a broad sense in Art. 6.1 ESC. That right includes an obligation on Member States to promote

bipartite social dialogue in the light of the effective realisation of the right to

collective bargaining. Art. 6.1 ESC is the clearest example that social dialogue and collective bargaining are inherently linked. The right to social dialogue appears to be necessary for an effective right to collective bargaining.

75. RECOGNITION IN THE EU TREATIES - Article 152 TFEU implies an obligation for the EU to recognise and promote the role of social partners at the European level. The EU must also promote mutual (and thus social) dialogue, while respecting the autonomy of the social partners. The scope of this article is limited to the European social partners recognised by the European Commission, namely the European Trade Union Confederation, BusinessEurope (Confederation of European Business, CEEP, (European Centre of Employers and Enterprises providing Public services), UEAPME (European Association of Craft, Small and Medium Sized Enterprises), Eurocadres (the Council of European Professional and Managerial Staff) and CEC (European Confederation of Executives and Managerial Staff as part of the European Trade Union Confederation) but this could also be extended to the recognised social partners on European sectorial level, including the European Cockpit Association. Social partners at national level will have to act through these EU-level organisations in order to invoke Article 152 TFEU. Moreover, there is a certain problem of invocability as this article contains is a very vague and rather positive obligation for the Union. The institutions are given a great deal of policy freedom in interpreting it, and the chances of success are very limited should the social partners ever dare to invoke the article before the Court of Justice. Nevertheless, a certain negative obligation can also be seen under Article 152 TFEU, namely a prohibition for the European institutions to take action when this would endanger the respect for the autonomy of

37 ITUC, INDUSTRIALL GLOBAL UNION, UNI GLOBAL UNION and THE CLEAN CLOTHES CAMPAIGN, “UN Guiding Principles on Business and Human Rights and the human rights of workers to form or join trade unions and to bargain collectively”, 2012, http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=2790&context=globaldocs. 38 European Commission, IndustrialRelations in Europe 2014, Luxembourg, Publications Office of the European Union, 2015, 115.