March 2011

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Francesca Bignami

But, on the flip side, these judgments (including Laval) undermine economically successful traditions of collective bargaining and do harm to a number of fundamental principles of EU law. I'm not thinking of the obvious one--the right to collective bargaining--but subsidiarity and flexibility. Note that, according to the logic of Dirk Ruffert and Laval, countries like Germany and Sweden can still require that foreign workers be paid the same as domestic ones. But they must do so through the legalistic, centralizing, and inflexible device of a national law applying the terms of a collective bargaining agreement to all of those employed in the trade, regardless of whether they are members of the trade unions and employer organizations that signed the agreement. This means trade unions and employers can't adjust the terms of collective bargaining agreements work-site by work-site (as was the case in Sweden with the Laval case) and that regions can't experiment with their own economic strategies (as was the case with Lower Saxony in Dirk Ruffert). Through its formalistic interpretation of Directive 96/71, the ECJ still allows Member States to set minimum wages but in the worst of ways.

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