10.6092/issn.1561-8048/10110
The article analyses, under a comparative approach, the case law of Us Courts and of the CJEU on the relationships between economic freedoms, competition law and collective action. In the first section, it describes the most controversial conclusions reached by the CJEU during the last decades. In the second one, it explains the rationales of American case law, on the basis of their historical development. In the third section, it compares the principles held in US case law with the decisions delivered by the CJEU and explains how them could be adapted to the problems recently emerged within European law, in order to correct the theoretical inconsistencies of the decisions upheld by the CJEU.
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Fabio Pantano
Italian Labour Law e-Journal
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Competition, Economic Freedoms and Collective Action: What the US can teach Europe
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2019-12-17
2019-12-04
2019-12-17
2020-09-15
123-148
ILLeJ
Fabio Pantano
2019/12/17
10.6092/issn.1561-8048/10110
123
University of Parma
1561-8048
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European union law
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Competition, Economic Freedoms and Collective Action: What the US can teach Europe
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    Competition, Economic Freedoms and Collective                                Italian Labour Law e-Journal
    Action: What the Us can teach Europe                                                Issue 2, Vol. 12 (2019)
    Fabio Pantano                                                                             ISSN 1561-8048
    fabio.pantano@unipr.it                                     https://doi.org/10.6092/issn.1561-8048/10110




       Competition, Economic Freedoms and Collective
          Action: What the Us can teach Europe
                                            Fabio Pantano

1. Introduction. Economic Freedoms and their Immanent Conflict with Collective Action:
Balance or Autonomous Scopes? Section 1. 1. Collective Bargaining Agreements,
Economic Freedoms and Competition in the CJEU Case Law. 2. Collective Action and the
Definition of Minimum Wages and Working Conditions for Posted Workers according to
the CJEU. Section 2. 1. At the Origins of the Relationship between Antitrust Law and
Labor within US Law. 2. The Immunity of Unilateral Unions’ Action from Antitrust Law:
the “Statutory Exemption”. 3. Collective Agreements and Antitrust Law: The “Non-
Statutory Exemption”. 4. Collective Bargaining in the Sport Sector: “Non-Statutory
Exemption” in Favor of Employers. Section 3. 1. How Collective Action and Collective
Bargaining Agreements Affect Economic Freedoms and Competition Within US and EU
Experience. 2. Competition, Economic Freedom and Labor: Simplistic Approaches and
Misleading Assumptions. 3. The “Rationales” of the Judiciary Approach to the Conflict
between Labor Rights and Economic Freedoms in US... 4. …And in European Law. 5.
Economic Freedoms vs. the “Essence” of the Fundamental Labor Rights: Courts and
Political Institutions’ Attitude in US and EU. 6. Conclusions.




                                                    Abstract

       The article analyses, under a comparative approach, the case law of Us Courts and of the
    CJEU on the relationships between economic freedoms, competition law and collective action.
    In the first section, it describes the most controversial conclusions reached by the CJEU
    during the last decades. In the second one, it explains the rationales of American case law, on
    the basis of their historical development. In the third section, it compares the principles held
    in US case law with the decisions delivered by the CJEU and explains how them could be
    adapted to the problems recently emerged within European law, in order to correct the
    theoretical inconsistencies of the decisions upheld by the CJEU.

    Keyword: Competition; Collective Action; Economic Freedoms; United States Law;
    European Union Law.





  Professor of Labour Law, University of Parma. My sincere thanks go to Mark Barenberg, Maria Giovanna
Greco, Robert Kheel, Luca Ratti, Orsola Razzolini, Riccardo Salomone, Adriana Topo and Monica Vitali, for
helpful comments on earlier drafts of this article. This article has been submitted to a double-blind peer
review process.
    Fabio Pantano                                                                     Italian Labour Law e-Journal
                                                                                             Issue 2, Vol. 12 (2019)
                                                                                              Section Miscellaneous


1. Introduction. Economic freedoms and their Immanent Conflict with Collective
Action: Balance or Autonomous Scopes?

   The conflict between economic freedoms and collective action has deep roots and
concerns trade unions’ typical social functions1. Nonetheless, while it has always been given
remarkable attention by the American case law and legal scholarship, it has not been object
of the European academic debate and judiciary practices until recent times.
   The US labor law has been strikingly affected by Courts’ decisions on the enforcement
of antitrust provisions on collective action and collective bargaining agreements. US
experience demonstrates that trade unions’ action can condition the economic processes2,
not only immunizing wages and salaries from competition, but also affecting companies in
their access to the market and in their strategic decisions, infringing the principles that
regulate competition in US law3. After a long and controversial process, Courts have
recognized immunity from antitrust law to collective action and collective bargaining
agreements, allowing them to perform their typical economic functions by limiting
competition.
   In the European scenario, the conflict between economic freedom and labor has
explicitly come out within the CJEU case law only more recently. In order to prevent social
dumping linked to the transnational supply of services, trade unions have tried to impose
the implementation of national collective agreements on foreign investor companies, by
means of strike or other economic weapons on a transnational scale, hindering the free
exercise of companies’ economic freedoms within the common market and calling into
question the balance between labor and trade-related interests, theoretically both protected
by the European law.
   The decisions delivered by the CJEU have been often criticized, since the Court has
treated collective action as domestic provisions in conflict with the European law,
scrutinizing their legitimacy under the proportionality test4. According to most European
scholars, this approach could frustrate the recognition of strike and collective bargaining as
fundamental rights, affirmed by the European Charter of Fundamental rights and by the
Court itself5.

1 Handler M., Zifchak W.C., Collective bargaining and the antitrust law: the emasculation of the labor exemption, in
Columbia Law Review, 81, 1981, 459; Leslie D.L., Principles of labor antitrust, in Virginia Law Review, 66, 7, 1980,
1185 ff.; Cox A., Labor and the Antitrust Laws-A Preliminary Analysis, in University Pennsylvania Law. Review, 104,
1955, 252, 256 - 257.
2 St. Antoine T.J., Antitrust Law at the Expense of Labor Law, in Virginia Law Review, 62, 2015, 603.
3 Leslie D.L., (1), 1185 ff.; Cox A., (1), 267, 276.
4 Freedland M., Prassl, J. Viking, Laval and Beyond: An Introduction, in Freedland M., Prassl J. (eds.), Viking,

Laval and Beyond, Hart Publishing, Oxford, 2014, 11; Velyvyte V., The Right to Strike in the European Union after
Accession to the European Convention on Human Rights: Identifying Conflict and Achieving Coherence, in Human Rights
Law Review, 15, 2015, 73 -84; Reich N., How proportionate is the proportionality principle? Paper presented at the
Oslo conference on “The reach of free movement”, 18 – 19 May 2011, 11; Micklitz H.W., De Witte B. (eds.),
The European Court of Justice and the Autonomy of the Member States, Intersentia, Antwerp, 2012, 83; Hös N., The
principle of proportionality in the Viking and Laval cases: An Appropriate standard of Judicial Review?, EUI Working
Paper Law 2009/06, 3.
5 See Deinert O., Art 28 CFREU. Right of collective bargaining and action, in Ales E, Bell M., Deinert O., Robin-

Olivier S. (eds.), International and European Labour Law. Article by Article Commentary, Hart, 2018, 1454 ff.;
Ballestrero M.V., Lo Faro A., Razzolini O., Sub. Art. 28, in Mastroianni R.N., Pollicino O., Allegrezza S.,
Pappalardo F., Razzolini O., Carta dei diritti fondamentali dell’Unione Europea, Giuffrè, Milano, 2017, 553;
Freedland M., Prassl J, (4), 4; Weatherill S., Viking and Laval: The EU Internal market perscpective, in Freedland

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    This paper maintains that CJEU’s approach is founded on a misleading notion of
collective action and of its very nature as an economic and social phenomenon, and that
the CJEU erroneously differentiates the balance between collective action and economic
freedoms, based on the fact that Treaties’ provisions on competition either on freedom of
establishment are at stake, with more favorable approach for employers in the latter case.
    In its most well-known decisions on this subject (the so-called Laval quartet) the Court
affirmed that collective action infringing the freedom of establishment have to be subject
to the proportionality test, as well as domestic statutory or administrative provisions,
undermining the effectiveness of trade unions’ action as private parties exercising a private
autonomy in the economic and productive scenario. In doing that, the Court moved away
from its previous pro-labor approach, held in Albany, exactly on the grounds that, in that
case, labor interests were not infringing the freedom of establishment but the treaties’
provisions on competition. The misleading foundation of the CJEU’s doctrine can be
challenged through a comparative approach, confronting it with the opposite ideas upheld
by US case law on the same matter6.
    In the first section, the article describes the most controversial conclusions reached by
the CJEU on the relationship between collective action, collective bargaining agreements
and economic freedoms. In the second one, it explains the rationales of American case law
on the same matter and their historical development. In the third section, it compares the
US case law with the decisions delivered by the CJEU and explains how the principles
adopted by American Courts could be adapted to the problems emerged within the
European law, in order to correct the misleading theories upheld by the European Court.

Section 1.

1. Collective Bargaining Agreements, Economic Freedoms and Competition in the
CJEU Case Law.

   Social issues have been core to the development of the different legal systems of
European member states. Most European Constitutions explicitly protect the right to strike
and collective bargaining7 and, in most member states, economic freedoms are subject to
explicit restrictions in order not to collide with the development of collective bargaining
processes.
   Nonetheless, from the one hand, the European Union has only recently recognized
formal protection to workers’ rights to strike and to undertake collective action, through


M., Prassl J. (eds.) (4), 23; Counturis N., Engblom S., Civilising the European Posted Workers Directive, in
Freedland M., Prassl J. (eds.), (5), 279 ff; Velyvyte V., (4), 75; Reich N., (4), at 6; Deakin S., The Lisbon Treaty,
The Viking and Laval Judgments and the Financial Crisis: In search of New Foundations for Europe’s ‘Social Market
Economy’, in Bruun N., K. Lörcher, Schömann I. (eds), The Lisbon Treaty and Social Europe, Hart Publishing,
Oxford, 2012.
6 For a similar approach, but based on the opposite point of view, see Willborn S.L., Laval, Viking and

American labour law, in Comparative Labor Law and Policy journal, 66, 2011, 1079 ff.; here, the author deals with
the comparison of US and European law more from the point of view of statutory law, analyzing how the
state and federal American labor law would have faced a problem similar to the ones raised within Viking and
Laval.
7 Carabelli U., Europa dei Mercati e Conflitto Sociale, Cacucci, Bari, 2009, 162.


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Art. 28 of the Charter of Fundamental Rights of the European Union8; from the other
hand, the relationship between economic freedoms, collective action and collective
agreements has always been particularly controversial in the EU law.
   In its first leading case on this matter9, the CJEU adopted a pro-labor approach,
granting collective bargaining agreements a wide space of autonomy from competition
law10. The court recognized that the correct and natural functioning of collective bargaining
does not allow scrutiny on the strategies of social partners, grounded in competition law11;
on the contrary, they have to be free in using economic weapons, as far as they are
addressed to carrying out negotiations on employment conditions:
   “The social policy objectives pursued by such agreements would be seriously
undermined if management and labour were subject to Article 85(1) of the Treaty when
seeking jointly to adopt measures to improve conditions of work and employment”12.
   About 8 years after Albany, in Viking, the CJEU13, although affirming that “the right to
take collective action, including the right to strike, must be recognized as a fundamental
right which forms an integral part of the general principles of Community law”14,
substantially subverted the Albany doctrine, maintaining that collective action is not
immune from judiciary control when it does constraint the freedom of establishment
protected by art. 43 of the treaty (now art. 49 of the TFEU).
   In more recent cases, the Court confirmed that the decisive point producing the shift
from the Albany to the Viking approach was the fact that fundamental economic freedoms,
namely freedom of establishment and to provide services, were explicitly at stake. When
the case is to be decided only on the basis of art. 101 of the TFEU, and art. 49 and 56 are
not into question, the Court appears to be more inclined to recognize wider immunity to
collective bargaining agreements, following the Albany doctrine, as it has recently done in
FNV Kunsten Informatie en Media15.
   On the contrary, when collective action or collective bargaining agreements hinder
fundamental economic freedoms, they have to be subject to a case-by-case scrutiny based

8 Deinert O. (5), at 1454 ff.; See Ballestrero M.V., Lo Faro A. Razzolini O., (5), 528 ff.; Velyvyte V., (5), 74;
Carabelli, (7), at. 160 and 161.
9 CJEU, Case C-67/96 Albany International BV v. Stichting Bedrijfspensioenfonds Textielindustrie (1996)

ECLI:EU:C 1999:430. See also CJEU, Case C-115/97 Brentjens' Handelsonderneming BV v. Stichting
Bedrijfspensioenfonds voor de Handel in Bouwmaterialen, ECLI:EU:C:1999:434; CJEU – Case C-219/97
Maatschappij Drijvende Bokken BV v. Stichting Pensioenfonds voor de Vervoer- en Havenbedrijven (1997)
ECLI:EU:C:1999:437. More recently, CJEU, Case C-180/98 Pavel Pavlov and others v. Stichting
Pensioenfonds Medische Specialisten (1998) ECLI:EU:C:2000:428.
10 Ballestrero M.V., Lo Faro A., Razzolini O., (5), 535; Freedland M., Prassl J., (4), 16.
11 CJEU, Case C-67/96 Albany International BV v. Stichting Bedrijfspensioenfonds Textielindustrie (1996)

ECLI:EU:C 1999:430. See. Deinert O. (5), at 1454 ff.
12 CJEU, Case C-67/96 Albany International BV v. Stichting Bedrijfspensioenfonds Textielindustrie (1996)

ECLI:EU:C 1999:430, par. 59. Similar conclusions have been reached by The EFTA Court in Norwegian
Federation of Trade Unions and Others v. Norwegian association of Local and Regional Authorities and Others, 22.3.2002,
case E-08/00; see Kilpatrick C., Fitzpatrick B., The ‘Albany-test’ compared with the ‘EFTA guidelines’, in 33
Industrial Law Journal, 33, 2004, 73, 74.
13 CJEU – C-438/05 International Transport Workers’ Federation e Finnish Seamen’s Union v. Viking Line

ABP e OÜ Viking Line Eesti, (2005) ECLI:EU:C:2007:772, paras 6 -27.
14 See Hös N., (4), 2
15 CJEU, Case C-413/13 FNV Kunsten Informatie en Media V. Staat der Nederlanden (2013)

ECLI:EU:C:2014:2411; see Grosheide E., Barenberg M., Minimum Fees for the Self-Employed: A European
Response to the "Uberized" Economy? in Columbia Journal of European Law, 22, 2016, 193.

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on the proportionality test16. On this regard, collective actions are treated as provisions
adopted by public authorities in contrast with freedom of establishment17 and are
considered lawful only when a legitimate aim, deduced by a member state in order to justify
a restriction to art. 49 TFEU, is proved18.


2. Collective Action and the Definition of Minimum Wage and Working Conditions
for Posted Workers according to the CJEU.

   Many decisions of the CJEU involving the conflict between collective action and
economic freedoms concern the implementation of directive No. 96/71 on posted
workers19. Companies located in Eastern countries provide services at lower conditions,
exploiting the lower level of wages and workers’ treatments provided for by their domestic
laws, obtaining remarkable competitive advantages20. Most of the time, these companies
provide services within the territory of other member states employing workers posted
from their country of incorporation. The competition triggered by the mobility of these
employers and of their employees foster the race to the bottom for labor standards and
jeopardize the maintenance of the acquired levels of workers’ protection in many European
member states, as well as job opportunities of national workers of the state where the
service is performed21.
   In order to prevent such processes, Directive 96/71 allows member states to establish
minimum conditions for posted workers, with a very limited role for collective bargaining
agreements. Pursuant to art. 3(1) of the Directive, only collective agreements universally
applied, according to domestic law, may participate in the definition of minimum
treatments.
   Trade unions have tried to force foreign enterprises to subscribe national collective
agreements, in order to grant the same working conditions to domestic and foreign
workers and, therefore, reduce social dumping. The CJEU dealt with these problems in
Laval22, Rüffert23 and Commission v. Luxemburg24.

16 Velyvyte V. (5), 75.
17 Even if the Court has admitted restrictions on economic freedoms founded on non-labor fundamental
rights; see CJEU, C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v. Republik
Österreich, (2000) ECLI:EU:C:2003:333; CJEU, C-36/02 Omega Spielhallen- und Automatenaufstellungs-
GmbH v. Oberbürgermeisterin der Bundesstadt Bonn (2002) ECLI:EU:C:2004:614; see also Carabelli U., (7),
173; Reich N., (4), 24; de Vries S. A., Protecting fundamental (social) rights through the lens of the European single
market: the quest for a more “holistic approach”, 32 in International Journal of Comparative Labour Law, 293, 32, 2016,
216.
18 Even “a fundamental right, such as the right to bargain collectively (…) must (…) be reconciled with the

requirements stemming from the freedoms protected by the FEU Treaty (…) and be in accordance with the
principle of proportionality”, CJEU, C-271/08 Commission v. Germany, (2008) ECLI:EU:C:2010:426, pr. 44.
19 Recently amended by “Directive (EU) 2018/957 of the european parliament and of the council of 28 June

2018”.
20 Counturis N, Engblom S., (5), 286; Deakin S., (5), 25.
21 See Bercusson B., The Trade Union Movement and the European Union: Judgment Day, in European Law Journal, 13,

3, 2007, 279, 305.
22CJEU, Case C–341/05 Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet, Svenska

Byggnadsarbetareförbundets avdelning 1, Byggettan e Svenska Elektrikerförbundet (2005)
ECLI:EU:C:2007:809.

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    In Laval, confirming “labor restrictive” interpretations adopted in Viking, the Court
maintained that, since fundamental freedoms “could be neutralised by obstacles resulting
from the exercise of their legal autonomy by associations or organisations not governed by
public law”25, “the right to take collective action” is subject to restrictions when it infringes
in such freedoms, even though it “must therefore be recognised as a fundamental right
which forms an integral part of the general principles of Community law”26.
    Like in Viking, the court submitted the exercise of collective rights to the
proportionality test, considering it not legitimate in the relevant case, since the lack of
precise and clear provisions on collective bargaining within the Swedish law, connected
with the uncertainties naturally related to any kind of negotiation, made investment too
risky for foreign enterprises and, as a consequence, constituted an obstacle to the exercise
of economic freedoms, disproportionate respect the legitimate objective of protecting
workers27.
    Competition and race to the bottom issues have been explicitly called into question in
Rüffert. Rüffert referred to the law of the German Land Niedersachsen, which expressly
provided for a “social clause” establishing that “public contracting authorities may award
contracts for building works and local public transport services only to undertakings which
pay the wage laid down in the collective agreements at the place where the service is
provided”, in order to “counteracts distortions of competition which arise in the field of
construction and local public transport services resulting from the use of cheap labour”28.
    Even though - theoretically - both domestic and European law were aimed at favoring
fairer competition between undertakings, the European Court has criticized the German
legislation, since any restriction imposed by member states to economic freedom has to be
interpreted strictly. While, in Albany, the Court had clearly established immunity for
collective agreements, in Rüffert, minimum levels of wages or working conditions imposed
by them have been considered as “an additional economic burden that may prohibit,
impede or render less attractive the provision of (…) services in the host Member State”,
and, as such, subject to the proportionality test29.

23 CJEU, C-346/06 Dirk Rüffert v. Land Niedersachsen (2006) ECLI:EU:C:2008:189.
24 CJEU, C-209/08 Commission v. Luxemburg (2008) ECLI:EU:C:2008:776.
25-CJEU, Case C – 341/05 Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet, Svenska

Byggnadsarbetareförbundets avdelning 1, Byggettan e Svenska Elektrikerförbundet (2005)
ECLI:EU:C:2007:809, pr. 91.
26CJEU, Case C – 341/05 Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet, Svenska

Byggnadsarbetareförbundets avdelning 1, Byggettan e Svenska Elektrikerförbundet (2005)
ECLI:EU:C:2007:809, pr. 91.
27CJEU, Case C – 341/05 Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet, Svenska

Byggnadsarbetareförbundets avdelning 1, Byggettan e Svenska Elektrikerförbundet (2005)
ECLI:EU:C:2007:809, pr.112.
28CJEU, C-346/06 Dirk Rüffert v. Land Niedersachsen (2006) ECLI:EU:C:2008:189, pr. 30.
29 CJEU, C-346/06 Dirk Rüffert v. Land Niedersachsen (2006) ECLI:EU:C:2008:189, par. 37. The more “pro

labor” approach adopted by the Court in the more recent RegioPost decision is not decisive for our
reasoning29, since, while “in the judgment in Rüffert, the Court based its conclusion on the finding that what
was at issue (…) was a collective agreement applying solely to the construction sector, which did not cover
private contracts and had not been declared universally applicable” (CJEU, C-115/14 RegioPost GmbH &
Co. KG v. Stadt Landau in der Pfalzpr (2014) ECLI:EU:C:2015:760, par.74), there, “the minimum rate of pay
imposed by the measure at issue in the main proceedings is laid down in a legislative provision, which, as a
mandatory rule for minimum protection, in principle applies generally to the award of any public contract in
the Land of Rhineland-Palatinate, irrespective of the sector concerned” (paragraph 75). Had the provision at

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   The CJEU confirmed this doctrine in Commission v. Luxemburg30, holding that “article
3(1) sets out an exhaustive list of the matters in respect of which the Member States may
give priority to the rules in force in the host Member State”31. Therefore, the treatments
granted to national workers by collective bargaining agreements are not to be extended, by
domestic law, to foreign posted workers outside the scope of the matters specified by pr.
3(1) of Directive 96/71, which does not refer to an “automatic adjustment to reflect
changes in the cost of living”, but only to “minimum rates of payments”32.

Section 2.

1. At the Origins of the Relationship between Antitrust Law and Labor within US
Law.

   In the US, the debate on the relationship between labor action and economic freedoms
has a longer tradition and the Sherman Act has been enforced against labor unions more
often than against companies33.
   Since the second half of XIX century, US industrial relations have been characterized by
an intense economic conflict34. Through various forms of collective action and bargaining
agreements, American trade unions have been able to block companies’ commercial
activities, hindering their economic exchanges and their possibility to compete in the
interstate market, in order to obtain more favorable working conditions and affect
managerial strategic decisions35.
   Because of the absence of a specific and organic system of rules for labor relations36,
courts have governed the collective conflict as a matter of individual rights, assuring intense
protection to companies’ economic interests37. In that phase, as mere agents of employees,
unions were not considered as holders of autonomous “property rights”38 or legal
personality39, and their activities were mostly repressed as inadmissible restrictions of
employers’ economic freedoms40.

issue been contained in a collective agreement, RegioPost would have been decided on the basis of the Rüffert
doctrine.
30CJEU, C-209/08 Commission v. Luxemburg (2008) ECLI:EU:C:2008:776, paras. 4 – 7.
31 CJEU, C-209/08 Commission v. Luxemburg (2008) ECLI:EU:C:2008:776, para. 26.
32 See Freedland M., Prassl J., (5), 17; Counturis N., Engblom S. (5), 279 and 283 ff.; McCrudden C., The

Rüffert Case and Public Procurement, in Cremona M. (ed.), Market Integration and Public Services in the European
Union, Oxford University Press, Oxford, 2011, 128.
33 Tomlins C.L., The State and the Unions. Labor Relations, Law, and the Organized Labor Movement in America, 1880-

1960, Cambridge University Press, 1985, 6.
34 See Forbath W.E., Law and the Shaping of the American Labor Movement, Harvard University Press, Cambridge,

1991, 11, 59; Tomlins C.L. , (33), 11; Brody D., Section 8(a)(2) and the Origins of the Wagner Act, in Friedman S.,
Hurd R.W., Oswald E.A., Seeber R.L. (eds), Restoring the Promise of American Labor Law, Cornell University
Press, 1994, 32. For a description of the labor conflicts at the end of XIX century in US, see the report of the
facts object of decision in U.S. v. Debs, 64 F. 724 (1894).
35 Forbath W.E., (34), at 26; Tomlins C.L., (33), 8 - 16 ff.; Brody D., (34), 35.
36 Forbath W.E., (34), 33; Leslie, (1), 1183.
37 Tomlins C.L., (33), 26 – 27 (1985); St. Antoine T.J., (2), 604 ff.
38 See Forbath W.E., (34), 86; Tomlins C.L., (33), 64.
39 Tomlins C.L., (34), 121. Only gradually courts attributed autonomous legal positions to unions within the

collective bargaining process; Tomlins C.L., (33), 117; Brody D., (34), 32.
40 Tomlins C.L., (34), 58.


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    Within this scenario, it is not surprising that antitrust law has appeared to judicial
authorities as the most effective tool for restricting trade unions’ powers in favor of
enterprises’ interests and contain their activism41, assuming that common and statutory law
did not provide for any legal grounds to exempt collective action from the enforcement of
Sherman Act42. As the Supreme Court affirmed, the Sherman Act “prohibits any
combination whatever to secure action which essentially obstructs the free flow of
commerce between the States, or restricts, in that regard, the liberty of a trader to engage in
business”43, and, as a matter of fact, under a mere antitrust law perspective, trade unions
are conspiracies and collective agreements are cartels44. In particular US courts’ decisions
strikingly hit “secondary” boycotts and “sympathy” strikes, which represented fundamental
and effective instruments of pressure against employers for American trade unions45.
    In order to contain the restrictive attitude of courts toward labor actions, Congress
enacted statutory provisions aimed at immunizing collective action from the enforcement
of antitrust law46. In 1914, sections 6 and 20 of the Clayton Antitrust Act has been passed 47,
establishing (namely at sec. 6) that, since labor is “not a commodity or article of
commerce”, labor organizations were not to be considered per se illegal and should have
been exempted from the enforcement of Sherman Act. Sec. 20 of the Clayton Act
prohibited the issuing of restrictive orders or injunctions against collective actions
“involving, or growing out of, a dispute concerning terms or conditions of employment”, if
“peaceful”, “lawful” and undertaken through “lawful means”.
    Nonetheless, Clayton Act provisions were construed as specific exemptions from the
antitrust law and Courts interpreted them in a restrictive way, in absence of any statutory
general recognition of labor as a fundamental social and economic value.
    In Duplex Printing Press v. Deering48, the Supreme Court maintained that secondary
boycotts and sympathy strikes49 were not included within the scope of Clayton Act’s
exemptions, because they were not “peaceful and lawful” and the targeted enterprises were
not “concerned as parties” in the dispute, as required by a strict interpretation of the
statutory language of the Clayton Act50.

41 Cox A., (1), 256; Tomlins C.L., (33), 37 ff.
42 U.S. v. Debs, 64 F. 724 (1894).
43 Loewe v. Lawlor, 208 U.S. 274, 307 (1908).
44 Tomlins C.L., (33), 39; Bogg A., Viking and Laval: The International Labour Law Perspective, in Freedland M.,

Prassl J., (eds.), (4),71. See also Deinert O. (5), 1454 ff.
45 Handler M., Zifchak W.C., (1), 462 ff.
46 Forbath W.E., (34), 17; Cox A., (1), at 156 – 158 and 257; Handler M., Zifchak W.C., (1), 471.
47 As a reaction to Loewe v. Lawlor, where the Supreme Court had enforced the Sherman Act on a nationwide

boycott aimed at forcing an employer to unionize its shops, on grounds that a combination and a conspiracy
forbidden by the statute has been proved; Loewe v. Lawlor, 208 U.S. 274, 307 (1908).
48 Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921)
49 See Forbath W.E., (34), at 61, 95; Cox A., (1), 259.
50 While, on the one hand, Clayton act “exemption is limited to pressure exerted upon a ‘party to such

dispute’ by means of ‘peaceful and lawful ’influence upon neutrals” [Duplex Printing Press Co. v. Deering, 254
U.S. 443, 473 (1921)]; on the other hand, labor exemptions had to be enforced only within industrial disputes
strictly related to “terms or conditions of employment”. Any immunity could not have been granted “beyond
the parties affected in a proximate and substantial, not merely a sentimental or sympathetic, sense by the
cause of dispute” [Duplex Printing Press Co. v. Deering, 254 U.S. 443, 472 (1921)], and, for this reasons, “the
restriction upon the use of the injunction” was to be intended “in favor only of those concerned as parties” in
the labor dispute, excluding workers and unions involved within “sympathetic strikes” [Duplex Printing Press
Co. v. Deering, 254 U.S. 443, 470 (1921)]. See Forbath W.E., (34), 61; Meltzer B.D., Labor Unions, Collective

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    Duplex would have deeply affected trade unions’ strategies and, in order to prevent
courts’ restrictive decisions from undermining collective bargaining processes, Norris - La
Guardia Act extended the number of actions exempted from antitrust law under the
Clayton Act and established that labor immunity from antitrust law was not to be restricted
to immediate employer - employees disputes, as it had been the case in Duplex51.


2. The Immunity of Unilateral Unions’ Action from Antitrust Law: the “Statutory
Exemption”.

    Duplex doctrine was based on the idea that labor immunities from antitrust law had to
be founded on statutory provisions specifically aimed at exempting unions and their
activities. Twenty years later, in Apex Hosiery52, the Supreme Court explored a different
approach, deducing the limits to the enforcement of antitrust law to labor actions from the
Sherman Act itself, and finding, within the language of the statute, an autonomous and
reasonable balance between labor and companies’ economic freedoms53, on the basis of a
systematic interpretation of the policies pursued by the Congress54.
    According to the Court, for its very nature, “successful union activity (…) may have
some influence on price competition by eliminating that part of such competition which is
based on differences in labor standards”, and “an elimination of price competition based
on differences in labor standards is the objective of any national labor organization. But
this effect on competition has not been considered to be the kind of curtailment of price
competition prohibited by the Sherman Act”55.
    According to the Apex Hosiery doctrine, the immanent conflict between labor and
antitrust law could find a reasonable balance in an organic and systematic understanding of
their reciprocal ends and scopes56, founded only on the Sherman act itself:
    “If (…) we were to hold that a local factory strike, stopping production and shipment of
its product interstate, violates the Sherman law, practically every strike in modern industry
would be brought within the jurisdiction of the federal courts, under the Sherman Act, to
remedy local law violations. The Act was plainly not intended to reach such a result, its
language does not require it, and the course of our decisions precludes it”57.
    Nonetheless, the most significant breakthrough in the historical development of the
relationship between antitrust and labor law in the US legal system has been marked by
NLRA58, which made unions’ activities object of a specific and organic body of statutory
rules59, by which Congress’s policies explicitly intended to support labor and to maintain


Bargaining, and the Antitrust Laws, in The Journal of Law and Economics, 6, 1963, 152,158); Cox A., (1), 258.
51 Forbath W. E., (34), 158 – 164; Cox A., (1), 259.
52 Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940).
53 St. Antoine T.J., (2), 606 ff.; for a critical vision of this approach see Handler M., Zifchak W.C., (1), 479.
54 St. Antoine T.J., (2), 606.
55 Apex Hosiery Co. v. Leader, 310 U.S. 469, 504 (1940).
56 See St. Antoine T.J., (2), 614.
57 Apex Hosiery Co. v. Leader, 310 U.S. 469, 513 (1940). See, more recentely, Wood v. NBA, 809 F.2d 954, 960

(2d Cir. 1987).
58 See Handler M., Zifchak W.C., (1), at 471; Forbath W.E., (34), 165; Cox A., (1), 254.
59 Brody D., (34), 33; Tomlins C. L., (33), at 159; Handler M., Zifchak W.C., (1), 479.


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“workplace relations (…) in the realm of free collective bargaining”60. Therefore, labor
actions were covered by a general statutory immunity, derived directly from labor
legislation.
   The impact of the Congress’ pro-labor policies was made clear in United States v.
Hutcheson et al.61. Under the so called “statutory exemption” doctrine, unilateral action of
trade unions were per se immunized from any restrictive order or injunction grounded in
any U.S. statute, without being subject to any scrutiny by courts on “the wisdom or
unwisdom, the rightness or wrongness, the selfishness or unselfishness of the end of which
the particular union activities are the means”62.


3. Collective Agreements and Antitrust Law: the “Non-statutory Exemption”.

   The “statutory exemption” did not merely represent the effect of one or more
provisions immunizing unilateral trade unions’ action from the antitrust law
implementation. It has been the consequence of a general and profound change in the US
law as regards the conflict between labor and competition, due to the NLRA63.
   As the Supreme Court affirmed in United Mine Workers of America64, “harmonizing the
Sherman Act with the national policy expressed in the National Labor Relations Act, of
promoting “the peaceful settlement of industrial disputes by subjecting labor-management
controversies to the mediatory influence of negotiation”“, had become the crucial
theoretical point for regulating the conflict between antitrust and labor law. The
prerogatives granted to unions and collective bargaining by NLRA were only partially
restricted by the so called Taft-Hartely and Laundon-Griffin amendments65, but the
systemic and organic protection granted by the congress to Labor actions was not reverted.
   Nonetheless, on the sole basis of “statutory exemption”, unions were allowed to use
their traditional economic weapons only if acting unilaterally, without any combination
with non-labor groups or parties (employers, groups or associations of employers)66. Such
approach would have seriously jeopardized NLRA policies and the Congress’ intent to
promote collective bargaining, because collective agreements were not immunized from
being considered as conspiracies between labor and non-labor groups67.
   In United Mine, the Supreme Court recognized that Congress’ policies grant immunities
from antitrust law, not only (explicitly) to collective action, but also (implicitly) to collective
agreements, since the statutory law promotes collective bargaining as the proper and most
effective way for defining salaries and working conditions68.


60 See M. Biasi, Statutory Employee Representation in Italian and U.S. Workplaces: A Comparative Analysis of the
Fiat/Chrysler Case, in Labour law journal, 2015, p. 241 ss.; Brody, supra note 35, at 42. See Forbath W.E., (34),
165; Tomlins C.L., (33), 101 and 138
61 U.S. v. Hutcheson, 312 U.S. 219 (1941).
62 U.S. v. Hutcheson, 312 U.S. 219, 232 (1941).
63 Leslie D. L., (1), 1206 ff.
64 United Mine Workers of America v. Pennington, 381 U.S. 657 (1965).
65 Handler M., Zifchak W.C., (1), 466 ff.
66 Leslie D.L., (1), 1204.
67 Cox A., (1), 270 - 271; for a different opinion St. Antoine T.J., (2), 615.
68 United Mine Workers of America v. Pennington, 381 U.S. 657 (1965).


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   It cleared that the exemption can be enforced only as long as collective partners do not
go beyond their traditional economic function of regulating employment conditions and
salaries, recognized by the statutory law. In fact, a “union forfeits its exemption from the
antitrust laws” when collective agreements – or part of their provisions – do not genuinely
pursue the regulation of labor matters, but aim at goals prohibited by the antitrust law, like
supporting employers in limiting the access of competitors to a relevant market69.
   In Jewel Tea, the Supreme Court clarified that collective agreements are immunized from
the antitrust law when they concern mandatory subjects of bargaining according to the
NLRA:
   “Employers and unions are required to bargain about wages, hours and working
conditions, and this fact weighs heavily in favor of antitrust exemption for agreements on
these subjects”70.
   According to Jewel Tea, legitimate intents of collective bargaining are to be appreciated
on the basis of an objective criterion71, concerning the subjects treated by the agreement at
stake72. Only when collective agreements have no relation – even indirect - with wages,
hour or working conditions73, antitrust law has to be enforced and agreements’ effects on
competition scrutinized on the basis of the “rule of reason” 74.


4. Collective Bargaining in the Sport Sector: “Non-statutory exemption” in Favor of
Employers.

   Subsequent developments of US case law confirmed the approach adopted by the
Supreme Court in United mine and Jewel Tea75. Nonetheless, in the last decades, the
relationship between antitrust and labor law has lost its grasp on US scholarship and it is


69 In United Mine, in order to increase the level of wages in the relevant economic sector, unions took part in
negotiations with bigger coal mining enterprises whose intent was to exclude smaller companies from the coal
market, by making access conditions too onerous for them. The approach held by the court in United Mine
has been highly criticized, since they have been deemed to open more space for a scrutiny on collective
actions based on antitrust law, but this idea denied by the successive development of US case law, mostly in
sport sector; Handler M., Zifchak W.C., (1), 483 ff.
70 Local Union No. 189, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, et al. v. Jewel

Tea Company, Inc., 381 U.S. 676, 689 (1965).
71 See also Conn. Ironworkers Emplrs. Assoc. v. New Eng. Reg’l Council of Carpenters, 157, F.Supp.3d 173 (D. Conn.

2016); KSW Mech. Servs. v. Mech. Contrs. Ass’n of N.Y., 2012 U.S. Dist. LEXIS 42248; California ex rel. Harris v.
Safeway, Inc., 651, F.3d 1118 (9th Cir. 2011).
72 See Leslie D.L. (1), 1213; Meltzer D.B., (50), 185. For a in-depth clarification of what as to be understood

as mandatory working conditions see Handler M., Zifchak W.C., (1), at 503 ff.
73 It has been confirmed by recent case law; see KSW Mech. Servs. v. Mech. Contrs. Ass’n of N.Y., 2012 U.S. Dist.

LEXIS 42248; Conn. Ironworkers Emplrs. Assoc. v. New Eng. Reg’l Council of Carpenters 157, F.Supp.3d 173 (D.
Conn. 2016); Am. Steel Erectors, Inc. v. Local Union No. 7, Int’l Ass’n of Bridge, 932 F. Supp. 2d 240. According to
Steel Erectors, Inc. v. Local Union No. 7.
74 According to the court, agreements’ content has to be “so intimately related to wages, hours and working

conditions that the unions’ successful attempt to obtain that provision (…) in pursuit of their own labor
union policies, and not at the behest of or in combination with non-labor groups, falls within the protection
of the national labor policy and is therefore exempt from the Sherman Act”; Local Union No. 189, Amalgamated
Meat Cutters and Butcher..., 381 U.S. 676, 690 (1965). See St. Antoine, supra note 2, at 606; Leslie, (1), 1192;
Meltzer D.B., (50), 177, 186 and 222.
75 See Connel construction c. v. Plumbe Local 100, 421 U.S. 616 (1975)


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no longer a major topic of discussion in Courts, probably because of the loss in power and
consensus suffered by trade unions within the US society, especially in the private sector76.
    The American Labor movement has changed radically77 and no longer has the power to
affect competition between employers, as it did at the times of Jewel Tea or United Mine;
neither is it able to control workers’ access to employment or to condition employers’
strategic choices under the pressure of economic weapons78.
    The most recent and innovative decisions on this matter concern collective conflicts in
the sports sector. In this field, the terms of the economic conflict have been reversed, since
it is the workers who invoke the antitrust law to protect their economic freedoms79.
    In fact, in order to limit any excessive increases in salaries, to distribute talented players
among all teams and to improve the attractiveness of sport entertainment, collective
agreements restrict the possibility for especially skilled athletes - with more remarkable
negotiating power - to compete freely on the labor market80. They also impose strict limits
to players’ income and to their possibility to move from one team to the others81.
Therefore, most disputes rose from players’ challenges to such contractual provisions82.
    This situation has exacerbated the economic conflict and, on the one hand, teams have
undertaken aggressive unilateral actions, namely through lockouts or unilateral enforcement
of contractual conditions; on the other hand, through the so called “decertification
strategy”, major players have tried to prevent the enforcement of “non-statutory
exemption” on employers’ collective action and to escape the limits imposed by collective
agreements to their negotiation freedom, by terminating their labor organization’s status as
their collective bargaining agent and maintaining that, since trade union were no longer
involved, the controversy was not to be included within the scope of labor immunities.
    A major contribution in this field has been given by lower courts, which have adapted
the general principles defined by the Supreme Court on “statutory” and “non-statutory”
exemptions to the specificities of collective action in the sports sector. In particular, it has
been established whether non-statutory exemption was to be enforced to employers’
unilateral action.
    In Mackey83, the Eighth Circuit Court of Appeals held that, “since the basis of the non-
statutory exemption is the national policy favoring collective bargaining, and since the
exemption extends to agreements, the benefits of the exemption logically extend to both



76 Rosenfeld J., What Unions No Longer Do, Harvard University Press, 2014, 10 ff.
77 See Dau-Schmidt K.G., The Changing Face of Collective Representation: The Future of Collective Bargaining, in Indiana
University School of Law-Bloomington Legal Studies Research Paper Series, Research Paper N. 72, 2007, 9.
78 Rosenfeld J., (76), 90 ff.
79 Leroy M.H., The narcotic effect of antitrust law in professional sports: how the Sherman act subverts collective bargaining, in

Tulane Law Review, 86, 2012, 859, 889 ff.
80 Leroy M.H., (79), 860 ff.
81 For a clear explanation of these phenomena see Farzin L., On the antitrust exemption for professional sports in the

United States and Europe, in Jeffrey S. Moorad Sports Law Journal, 22, 2015, 75 and 77 ff.; Parlow M.J., The NBA
and The Great Recession: Implications For The Upcoming Collective Bargaining Agreement Renegotiation, in Marquette
University Law School Legal Studies Research Paper Series. Research Paper No. 10-29, 102 ff.
82 Violations of this kind of clauses entailed the inclusion of the player in a black-list that excluded him from

the market, with severe penalties on recalcitrant member clubs. See Haywood v. National Basketball Ass’n, 401
U.S. 1204 (1971).
83 Mackey v. National Football League, 543 F.2d 606 (1976).


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parties to the agreement”, so that “under appropriate circumstances (…) a non-labor group
may avail itself of the labor exemption”84.
    The enforceability of labor exemption on all the action involved in collective
negotiations has been motivated by Courts on grounds of the preeminence of the labor
legislation over the antitrust law in regulating collective bargaining, consistently with the
principles defined by the Supreme Court in United Mine and Jewel Tea85.
    As long as negotiations deal with labor matters, the antitrust law cannot be enforced on
collective bargaining, which involves not only the agreement itself, but also all the unilateral
initiatives undertaken by the involved social partners in order to negotiate86. Employers’
traditional economic weapons are essential for the natural development of collective
bargaining and an uneven situation - where only employees’ action were immune from the
antitrust legislation - would jeopardize the successful conclusion of the collective
bargaining process or the very existence of the process itself 87.
    In Antony Brown et al. v. Pro Football88, the Supreme Court has sustained lower Courts’
decisions, confirming that the bargaining process is the result of a complex negotiation,
grounded on an array of unilateral actions and interactions, whose limits are to be defined
on grounds of labor law principles and of rules commonly accepted within the industrial
relations environment:
    “Antitrust liability (…) threatens to introduce instability and uncertainty into the
collective-bargaining process, for antitrust law often forbids or discourages the kinds of
joint discussions and behavior that the collective-bargaining process invites or requires”89.
    An effective implementation of the United Mine and Jewel Tea principles implies that
collective action adopted by both parties to the bargaining processes are to be immunized
from the antitrust law, as long as they can be considered normal phases of the
negotiations90.

Section 3.

1. How Collective Action and Collective Bargaining Agreements affect Economic
Freedoms and Competition within US and EU Experience.

   The evolution of the US and European case law demonstrates that the problematic
relationship between competition, economic freedoms and collective action is highly
controversial and its regulation requires a delicate balance between the various interests at


84 See Leroy M.H., (79), 893.
85 Wood v. NBA, 809 F.2d 954, 959 (2d Cir. 1987); see, recently, Clarett v. NFL, 369 F.3d 124, 57 (2d Cir.
2004).
86 Included “decertification”, when it is linked by a “close temporal and substantive relationship” with a

“labor dispute between League and the Players’ union”; Brady v. NFL, 640 F.3d 785, 791 (2011). See also
Clarett v. NFL, 369 F.3d 124, 57 (2d Cir. 2004)
87 See also Second Circuit Court of Appeals in NBA v. Williams, 45 F.3d 684 (2d Cir. 1995).
88 Brown v. Pro Football, Inc., 518 U.S. 231, 237 (1996).
89 Brown v. Pro Football, Inc., 518 U.S. 231, 242 (1996). Se also Powell v. NFL, 930 F.2d 1293, 1303 (8th Cir.

1989); White v. NFL, 585 F.3d 1129, (8th Cir.).
90 Even when the collective agreement has expired or the bargaining process is stuck; see Brown v. Pro Football,

Inc., 518 U.S. 231, 243 (1996).

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stake. Different solutions are possible and most of the time they are affected by the
historical, political and economic traditions of the concerned institutional contexts91.
   Limiting competition among workers is the major institutional aim of collective
agreements, in order to provide for uniform levels of wages and fairer working
conditions92. Nonetheless, in the US, collective agreements have also been used in order to
control the access of new workers to the labor market93, and, in both the US and Europe,
they have been employed for regulating conflicts involving different groups of workers94.
   Collective action and collective bargaining have affected competition also in achieving
goals that do not have direct connection with labor related interests and labor market95,
exploiting the impact of collective agreements on workforce costs96. In the US, through
collective bargaining, unions have been able to exclude from the market companies
refusing to bargain and employers have hindered the economic activities of their market
competitors97.
   The European scenario is particularly articulated from this point of view. On the one
hand, labor and employment laws are mostly in the jurisdiction of national legal systems,
which often present dramatic differences in the level of workers’ protection98. On the other
hand, the EU law endows all member states’ companies with highly protected economic
freedoms, in particular freedom of movement, freedom of establishment and of providing
services.
   In order to hinder race-to-the-bottom processes and to preserve national employment
rates, unions of the member states with higher protection of workers’ rights have
attempted to impose uniform working conditions by means of strike and other collective
action aimed at the implementation of national collective agreements. In some cases,
member states themselves have required foreign companies to implement collective
agreements, in order to protect the employment of their national workers, limiting
competition advantages for foreigner investors.
   The outcomes of these processes are highly controversial. They can generate positive
effects on the enhancement of fair competition, preventing social dumping and ensuring
uniform and acceptable conditions for undertaking businesses 99. Nonetheless, unions’
strategies can affect companies’ economic freedoms and may reduce competitive benefits

91 See Freedland M, Prassl J., (4), 227.
92 Leslie D.L., (1), 1185 ff.; St. Antoine T.J., (2), 604 and 612; Cox A., (1), 254 and 275 ff.
93 Leslie D.L., (1), 1186.
94 See Rebhahn R., Broader Lessons for European and Domestic Labour Law, in Freedland M., Prassl J., (4), 301.
95 For an in-depth analysis see Leslie D.L., (1), 1185 ff.
96 Leslie D.L., (1), 1188 ss.; Meltzer B.D., (50), 78; Cox A., (1), 278; St. Antoine T.J., (2), 611 ff.; Bogg A.,(44),

54.
97 Tomlins C.L., (33), 16 ff; Meltzer B.D., (50), 179 ff.; Cox A., (1), 276; St. Antoine T.J., (2), 608 ff.
98 See Deinert O. (5), at 1454 ff.
99 See McCrudden C., (32), 140. On the capacity of labor action to foster fair competition, in that case, with

reference to the collective action of self-employed workers, see Grosheide E., Barenberg M., (15), 196 - 199;
see also Dau-Schmidt K.G., (77), 6 ff. Of course, the exclusion of genuine sel-employed workers from the
scope of “labor immunities” can hinder the general impact of the immunity itself, but this profile deals with
the protection of self-employed workers and do not affect the rationales of the relationship between
competition and labor from a more general perspective; for an in-depth analysis of this issue see M. Biasi,
“We Will All Laugh at Gilded Butterflies”. The Shadow of Antitrust Law on the Collective Negotiation of Fair Fees for Self-
Employed Workers, in https://www.ssrn.com/index.cfm/en/, p. 7 ff., also in European Labour Law Journal, 2018, 9, 4,
354 ff.

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in terms of job opportunities for workers employed in countries with lower labor
standards.


2. Competition, Economic Freedom and Labor: Simplistic Approaches and
Misleading Assumptions.

   Both the US and European experiences demonstrate that the way labor and competition
interact is often problematic and diversified. Therefore, simplistic theoretical categories are
not useful to analyze such intricate phenomena, which require a correct systematic
approach.
   The case law of the CJEU seems to be grounded on two major assumptions, both of
which reveal them as misleading, under a more accurate survey. The first one is the idea
that, in modern liberal capitalistic economies, labor rights and companies’ economic
freedoms are necessarily conflicting interests; while, on the contrary, in some circumstances
collective bargaining agreements have positive effects on the development of beneficial
economic relationships among enterprises and can foster economic growth and fair
competition100.
   European domestic legislations impose social clauses or promote collective bargaining
in order to prevent social dumping phenomena based on the different levels of workers
protection among member states101. As it was the case for the relevant national laws in
Laval and Rüffert, they aim to “create a climate of fair competition, on an equal basis”102 and
to “counteracts distortions (…) resulting from the use of cheap labour”103.
   While the CJEU seems to be aware of this phenomenon when approaching collective
agreements and action conflicting with the European competition law, this is not the case
when provisions protecting fundamental economic freedoms are directly at stake.
   This differentiated approach brings into the light the other misleading assumption on
which the rationales of the so called “Laval quartet” are grounded: the idea that the
protection of fundamental economic freedoms and the regulation of competition are two
separated issues and regulatory frameworks and that, consequently, a different legal
approach to the solution of their respective conflicts with labor would be justified. On the
contrary, the US case law clearly demonstrates that these two issues cannot be treated
through different rationales.
   As scholars have already explained:
   “Market access and regulatory competition are two sides of the same coin. Within a
federal constitutional framework (or in a transnational entity such as the EC), mobility of
economic resources is one of the first preconditions for the emergence of a market in legal
rules. When courts review laws of Member States against criteria of how far such laws


100 See Rebhahn R., (94), 298; Bercusson B., (21), 305; McCrudden C., (32), 145.
101 See Freedland M., Prassl J., (4), 12; Meltzer D.B., (50), 160.
102 CJEU, Case C–341/05 Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet, Svenska

Byggnadsarbetareförbundets avdelning 1, Byggettan e Svenska Elektrikerförbundet (2005)
ECLI:EU:C:2007:809.
103 CJEU, C-346/06 Dirk Rüffert v. Land Niedersachsen (2006) ECLI:EU:C:2008:189, pr.14. See also CJEU -

C-209/08 Commission v. Luxemburg (2008) ECLI:EU:C:2008:776, pr. 341

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obstruct, or promote, economic mobility, they are necessarily defining the scope and nature
of regulatory competition”104.
   Within the European law, the legal regulation of competition and economic freedoms
aims at creating a free common market, within which all economic players can freely
undertake economic activities and compete, without distinctions or discriminations based
on their national origins105. They have a sole objective and should be given the same
“weight” when balancing them with other fundamental rights such as strike, collective
action and collective bargaining.


3. The “Rationales” of the Judiciary Approach to the Conflict between Labor Rights
and Economic Freedoms in US…

   Both the European and US laws protect economic freedoms and collective action.
Nonetheless, the regulation of conflicts between labor and competition has found a very
different equilibrium in the two legal systems and the dialectic between Courts and political
powers has generated different outcomes106.
   In the US, under the pressure of the Congress’ statutory measures, Courts have
gradually recognized the immunity of collective action and collective bargaining agreements
from the antitrust law107. After a one-century case law experience, the idea that collective
bargaining can achieve a fair balance among all the different interests at stake in the
economic conflict has been accepted, along as the one that the collective bargaining
process is effective only when it develops through genuine negotiations, consistently with
industrial relations customary rules.
   In the New Deal scenario, the US legislation has fostered collective bargaining under the
assessment that it can produce positive effects for the development of the national
economy. To this end, Congress enacted provisions designed to protect the dynamics of
the industrial relations environment from interferences rooted in non-labor legislation.
Within the NLRA framework and the limitations set by the NLRB, collective bargaining
has developed through the free use of social partners’ traditional economic weapons, in
order to obtain a balanced equilibrium between the concerned conflicting interests108. This
clear trend in the legislation forced courts to accept that labor principles have to prevail on
any non-labor system of rules in case of conflict between labor and non-labor interests, if
labor matters were at stake109.
   US case law has highlighted that courts’ interferences on the dynamics of negotiation
could compromise the traditional economic function of collective bargaining or jeopardize
the possibility of negotiations itself110. Only when social partners are free to use their

104 Barnard C., Deakin S., Market Access and Regulatory Competition, Jean Monnet Working Paper 9/0, 2001, 5.
105 See Caro de Sousa P., Horizontal Expressions of Vertical Desires: Horizontal Effect and the Scope of the EU
Fundamental Freedoms, in Cambridge Journal of International and Comparative Law, 2, 3, 2013, 480, 487.
106 See Willborn S.L., (6), 1080 ff.
107 Forbath W.E., (34), 169.
108 See Handler M, Zifchak W.C, (1), 469.
109 Forbath W.E., (34), at 165. For a clear explanation and defense of this approach, with a strong critic to the

“emasculation” of this principle in the US case law after Hutcheson, see Handler M, Zifchak W.C., (1), 479 ff.
110 See Deinert O. (5), at 1454 ff.; Leroy H.M., (79)1, 864 and 884.


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traditional economic weapons, without the risk of any subsequent pervasive control by
courts, the settlement of interests established by collective agreements can concretely
achieve a well-balanced compromise111 and effective protection of labor can be granted.
According to US courts, the enforcement on labor phenomena of rules and principles
developed within other sectors of the law, governing other fields of the economic life, may
compromise the positive effects of collective bargaining on the economy. Instead, a
reasonable balance between collective rights and economic freedoms can be established
only by defining their separated scopes and by granting immunity to labor action as long as
they remain within their proper “labor scope”112.
    The scrutiny US courts applied to trade unions collective action or bargaining agreement
does not take into account that they formally infringe antitrust law or the provisions
protecting fundamental economic freedoms, or, according to a more “American”
definition, economic “property rights”, since the US law does not acknowledge this
differentiation as effect-generating in this field.
    Therefore, in US law, the only admissible scrutiny by Courts on collective action
involves the matter of the dispute and the players concerned by its effects. Despite the
critiques by part of the scholarship113, this scrutiny has nothing to do with the antitrust
reasonableness test, applied by US courts in order to evaluate whether or not the potential
positive effect of a conspiracy can compensate the restraint imposed on competition, or
with the proportionality test applied by the CJEU to domestic measures infringing in
fundamental economic freedoms.
    As long as the bargaining process deals with labor matters, under “statutory” and “non-
statutory” exemption doctrines, courts are not allowed to evaluate the reasonableness of
trade unions’ or employers’ strategies; neither can they judge the way economic weapons
are employed by social partners; the intensity of the restriction suffered by competition
because of collective action; whether or not that restriction is proportionate to the aim
pursed by the concerned social players.
    Originally, in their first decisions on the conflict between economic freedoms and labor,
the US courts and the CJEU both have been incline to consider collective action and
collective bargaining as potential bias to the natural development of economic processes. It
is not by case that the rationales of the first judgments adopted by the Supreme Court on
this matter were very close to the ones held by the CJEU in the Laval quartet114.
    Nonetheless, the statutory provisions adopted by the Congress in order to maintain
labor immune from the antitrust law gradually reversed this trend. The creation - through
the NLRA - of a regulatory framework for collective bargaining has forced courts to
recognize the relevance that statutory law attributes to labor rights and to grant them the

111 One of the major NLRA principles is that “when an employer and union negotiate terms and conditions
of employment, government should not interfere”; Leroy H.M., (79), 875. See Handler M, Zifchak W.C., (1),
486 ff.
112 See Caro de Sousa P., (105), at 496; for analogous remarks see Bogg A., (44), 42.
113 See supra pr. 4.7. This kind of potential interference with industrial relations dynamics has been highly

criticized and considered as a “return to the era of Duplex v. Deering”, since it would have reintroduces, after
Hutcheson, a sort of antitrust scrutiny on trade unions action; Handler M., Zifchak W.C., (1), 498.
114 “If a State, with its recognized powers of sovereignty, is impotent to obstruct interstate commerce, can it

be that any mere voluntary association of individuals within the limits of that State has a power which the
State itself does not possess?”; Loewe v. Lawlor, 208 U.S. 274, 304 (1908).

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same value and dignity of economic freedoms. Trade unions actions within the collective
bargaining process ceased to be considered as mere interference with the individual
“property rights” and began to be seen as the exercise of autonomous rights themselves.
The conflict between competition and labor had to be settled through the definition of a
reasonable balance between the different interests involved and this new theoretical
construct originated “statutory” and “non-statutory” exemption doctrines.


4. …and in European Law.

    In EU law, this process is still at a primordial stage and collective rights seem to be
highly undermined by the CJEU’s decisions, strikingly affected by a favor attitude to
economic freedoms115. After adopting a different approach in Albany, the CJEU has deeply
restrained unions’ autonomy in the economic conflict. According to the Court, when they
infringe economic freedoms, collective actions are subject to the continuous threat of an “a
posteriori” scrutiny through the proportionality test, which makes their exercise remarkably
risky for trade unions and collective bargaining process ineffective116.
    The CJEU theoretically recognizes strike and collective bargaining as fundamental
rights, granting them the same importance and rank as economic freedoms117. Nonetheless,
these rights should be, in practice, subject to continuous scrutiny by member states’ courts,
in order to evaluate whether or not the restraint imposed to fundamental economic
freedoms is “proportionate” and consistent with the EU law.
    According to most European scholars, this approach challenges the protection granted
by many European domestic laws to strike and collective agreements and undermines the
fundamental principles traditionally at the basis of the European industrial relation
systems118.
    The comparison between the US and the European case law emphasizes the “lack of a
coherent “dogmatic” structure”119 in the CJEU’s reasoning120. The way the European court
considers collective action and the way it regulates their conflict with fundamental
economic freedoms is clearly destined to hinder labor rights’ protection. The
acknowledgment – by the Court itself - of strike and collective bargaining as fundamental
rights is at risk of turning into a merely abstract and vacuous declaration121.


115  See Kilpatrick C., Has policentric strike law arrived in the UK? After Laval, after Viking, after Demir? in
International Journal of Comparative Labaour Law and Industrial Relations, 30, 2014, 294 ff.; Novitz T., The
internationally recognized right to strike: a past present future basis upon which to evaluate remedies for unlawful collective
actions, in International Journal of Comparative Labaour Law and Industrial Relations, 30, 2014, 371 ff.
116 Deakin S., (5), 26.
117 See Rebhahn R., (94), 295 and 296. On the protection of collective rights as fundamental within EU law

see Bercusson B., (21), 300 ff.; de Vries A., (17), 213 ff.
118 See note 4.
119 See Rebhahn R., (94), 305.
120 Regarding the need for more attention to be paid by the CJEU to the comparative approach in its legal

discourse on human rights see de Búrca G., After the EU charter of fundamental rights: the court of justice as a human
rights adjudicator?, in Maastricht Journal of European and Comparative Law, 168, 20, 2013, 179; more in general, on
the comparative approach in the human rights’ field see Velyvyte V., (5), 79.
121 See Deinert O. (5), at 1454 ff. For a critic view on the application of the proportionality test to

fundamental rights, see Reich N., (4), 19.

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   US courts have made it clear that the idea of restraining trade unions’ strategies,
submitting them to reasonableness scrutiny by courts, would nullify the effectiveness of
collective action and would prevent collective bargaining from successfully performing its
social functions122.
   The CJEU affirms that the Laval principles are meant to be “without prejudice to the
right of undertakings established in other Member States to sign of their own accord a
collective labor agreement in the host Member State, in particular in the context of a
commitment made to their own posted staff, the terms of which might be more favorable”,
but – as the US case law has taught - an agreement signed by undertakings “of their own
accord” implies free development of bargaining dynamics and free employment of
economic weapons. This process cannot take place under the Damoclean sword of judicial
scrutiny on the “reasonableness” or “proportionality” of collective action123. A legal
construct leading to such consequences cannot be considered consistent with the
protection of strike and collective bargaining as fundamental rights (theoretically)
guaranteed by the EU law124.
   From this point of view, the debate on the horizontal or vertical effects of the directive
on posted workers and of the provisions of European treaties on fundamental freedoms is
overestimated125. The point is not whether or not these rules are enforceable on private
associations, but whether their effects are consistent with the rank of fundamental rights
recognized to collective action and collective bargaining by the EU law, under art. 28 of the
Charter, and by normative acts, which the European Union and its member states are
committed to under International law126.
   The CJEU has treated labor action and collective bargaining agreements as provisions
adopted by a member state - implying potential distortions of competition - that can be
justified only on public interest grounds, and, as such, subject to the proportionality test127.
This construct disregards the more genuine essence of collective action, which is
constituted by the free exercise of an economic initiative, rooted within the rationales of
private rather than of public law128.
   As well as the fundamental economic freedoms established by the treaties, collective
action are the fruit of autonomous economic strategies designed to achieve an economic


122 See Bercusson B., (21), 304.
123 See Counturis N., Engblom S., (5), 290 and 291; Velyvyte V., (5), 90; Meltzer D.B., (50), 211.
124 See Bercusson B., (21), 303; Deakin S., (5), 29. For an example of the possible consequences of CJEU’s

case law on member states’ legal system, see Koukiadaki A., The Far-Reaching Implications of the Laval Quartet:
The Case of the UK Living Wage, in Industrial Law Journal, 43, 2, 2014, 91.
125 See Caro de Sousa P., (105), 480. For an analysis of the implications related to the implementation of

horizontal effects of EU fundamental freedoms provisions to private parties see Hös N., (4), 13 ff.
126 Among others the “ILO Declaration on fundamental principles and rights at work”, adopted by the

International Labour Conference at its Eighty-sixth Session, Geneva, 18 June 1998, which commits all the
member states “to promote and to realize”, together with other fundamental principle on workers’
protection, “freedom of association and the effective recognition of the right to collective bargaining”. See N.
Counturis N., Engblom S., (5), 292; Velyvyte V., (5), 74; Freedland M., Prassl J., (5), 12; Bogg A., (44), 44;
Novitz T., (115), 361 ff. Moreover, the treaty of Lisbon has extended the relevance of social rights within the
EU law; Deakin S., (5), 20.
127 See Rebhahn R., (94), 298 and 299; Velyvyte V., (5), 90.
128 The same misleading approach is expressed in the opinion of the Advocate general Mengozzi, of 23 May

2007, Laval, C-341/05, ECLI:EU:C:2007:291, par. 160. For critical remarks see Velyvyte V., (5), 89 - 90. On
the horizontal effects of economic freedoms see Caro de Sousa P., (105), 498 ff.; Hös N., (4), 21.

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goal, namely the definition of working conditions through collective bargaining
agreements. Collective action and labor organizations are traditional institutions within the
economic scenario that has developed after the second industrial revolution. Trade unions
act autonomously in the economic environment, in pursuant of an economic objective129.
Collective action is the instrument for the implementation of a private economic strategy,
as well as economic freedoms. From this point of view, the CJEU’s doctrine creates an
obstacle to “freedom to contract and also to freedom of contract”: it does not favor it, since
it creates limits to an area – collective bargaining – based on the free exercise of negotiating
power, aimed at achieving a fair balance in collective bargaining agreements, through
collective partners’ traditional economic weapons130.


5. Economic Freedoms vs. the “Essence” of the Fundamental Labor Rights: Courts
and Political Institutions’ Attitude in US and EU.

   The inconsistencies of the CJEU’s case law are remarkable and appear even more
evident if compared with the opposite approach held, on the same subject, by the ECtHR,
whose results appear, instead, extremely consonant with the US case law131.
   In Demir, the Human rights Court affirmed that, under art. 11 of the ECHR, states are
required not only to “permit” collective action, but also to make them “possible”, implying
that “under national law trade unions should be enabled to (…) strive for the protection of
their members’ interests”132, since the protection afforded by the ECHR to collective action
is effective when the union is “free, in one way or another, to seek to persuade the
employer to listen to what it had to say on behalf of its members”133.
   According to the ECofHR, the rights to undertake collective action and collective
bargaining are endowed with the same value as the other fundamental rights recognized by
the Convention and they cannot be a priori subordinated to other economic rights134.
Contracting states’ laws have to achieve a reasonable balance between collective rights and
other conflicting fundamental rights, granting all of them adequate protection. Restrictions
to collective rights are to be interpreted strictly135 and, in any case, cannot “impair the very
essence of the right”136.
   As US courts have gradually acknowledged, “the very essence” of collective rights is
always impaired when action undertaken by trade unions, employers and associations of



129 See Hös N., (4), 13.
130 See Hös N., (4), 29.
131 See Mantouvalou V., Labour Rights in the European Convention on Human Rights: An Intellectual Justification for an

Integrated Approach to Interpretation, in Human Rights Law Review, 13,3, 2013, 529.
132 ECHR Demir and Baykara v. Turkey (2008) 48 EHRR 54, paragraph 141.
133 ECHR Demir and Baykara v. Turkey (2008) 48 EHRR 54, paragraph 143.
134 See Freedland M., Prassl J, (5), 7; Bogg A., (44), 42 ff.; Hendy E., The Dramatic Implications of Demir and

Baykara, in Industrial Law Journal, 39, 2010, 47; Velyvyte V., (5), 77 ff.
135 See also, Enerji Yapi-Yol Sen v. Turquie, 26.4.2009 68950/01.
136 Demir and Baykara v. Turkey (2008) 48 EHRR 54, paragraph 97. See. Ballestrero M.V., Lo Faro A., Razzolini

O., (5), 528. On the possible limitation of the right to strike as a constitutional right see Davidov G., A
purposive approach to labour law, Oxford University Press, 216.

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employers are potentially subject to an a posteriori case-by-case scrutiny137 and when labor
conflict disputes are decided on the basis of rules and principles not deriving from labor
law138. Being based on the opposite idea that courts should scrutiny collective action each
time they infringe the economic freedoms of enterprises, the CJEU’s constructs are
inevitably destined to impair the “essence” of labor rights. Therefore, they are not
consistent with the value recognized to collective rights in the EU law by the Charter of
fundamental rights139, with the principles established by the ECofHR and with the
recognition of strike and collective action as fundamental rights, as acknowledged by the
Court itself140. CJEU doctrines concretely downgrade collective labor rights to a lower rank
than economic freedoms141.
   According to Viking, trade unions could never be certain of the lawfulness of the
collective action they undertake, until scrutinized by a Court. Under the test defined by the
CJEU, demonstrating the lawfulness of trade unions’ action would become almost
impossible, since unions would be required to prove not to have had at their disposal
“other means (...) less restrictive of freedom of establishment in order to bring to a
successful conclusion the collective negotiations” and that they had “exhausted those
means before initiating” their action142. Moreover, domestic courts could find that
collective action had not been supported by a justified overriding reason of public interest
at all, should they not agree with the evaluation of trade unions on the potential harm that
the challenged employer’s behavior would cause to the concerned workers. Strategic
autonomy of trade unions could radically be undermined, since the threat of judicial
control would prevent trade unions from using their economic weapons, hindering
dramatically the possibility of negotiations itself143.
   In this regard, US law has reached a more reasonable equilibrium between labor and
economic freedoms, thanks to the long-standing dialectic between Courts and Congress.

137 On the problems related to case-by-case scrutiny on unions’ action legitimacy, see Leslie D.L., (1), at 1217;
Bogg A., (44), 50.
138 See St. Antoine T. J., (2), 631.
139 See Deinert O. (4), at 1454 ff.; Hös N., (4), 12; On the importance of human rights within EU law and the

case law of the CJEU see de Búrca G., (120),173; Fudge J., The new discourse of labor rights: from social to
fundamental rights? In Comparative Labor Law and Policy Journal, 29,1, 2007, 29 ss.
140 See de Búrca G., (120),171.
141 See Hös N., (4), 28. It has been pointed out that the Court adopts a much more “deferential approach in

cases concerning civil and political rights and leaves considerable room for manoeuvre for the national
authorities in protecting them” in particular when economic freedoms are at stake: CJEU, Case C-112/00,
Eugen Schmidberger, Internationale Transporte und Planzüge v. Republik Österreich.(2000)
ECLI:EU:C:2003:333; Velyvyte V., (5), 90; see CJEU, Case C-36/02 Omega Spielhallen- und
Automatenaufstellungs-GmbH v.Oberbürgermeisterin der Bundesstadt Bonn (2002) ECLI:EU:C:2004:614;
CJEU, Case C-244/06 Dynamic Medien Vertriebs GmbH v. Avides Media AG, (2006) ECLI:EU:C:2008:85;
CJEU, Case C-208/09, Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien (2009)
ECLI:EU:C:2010:806; CJEU, Case C-391/09 Malgožata Runevič-Vardyn e Łukasz Paweł Wardyn v. Vilniaus
miesto savivaldybės administracija (2009) ECLI:EU:C:2011:291. See Bogg A, (44), 53; Hös N. (4), 8; and
Weatherill S., (5), 30, 32 and 35. Regarding, more specifically, economic freedoms, CJEU – Case C-201/15
Anonymi Geniki Etairia Tsimenton Iraklis (AGET Iraklis) v. Ypourgos Ergasias, Koinonikis Asfalisis kai
Koinonikis Allilengyis (2015) ECLI:EU:C:2016:972; Bogg A., (44), 50.
142 CJEU, Case C-438/05 International Transport Workers’ Federation e Finnish Seamen’s Union contro

Viking Line ABP e OÜ Viking Line Eesti (2005) ECLI:EU:C:2007:772, par. 185. See Hös N., (4), 20, also 8;
Velyvyte V., (5), 81.
143 See Bercusson B., (21), 305; Bogg A., (44), 57 and 61; Counturis N., Engblom S., (5), 280; See Hös N., (4),

6; Rebhahn R., (94), 297; Weatherill S., (5), 36.

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“Statutory” and “non-statutory” exemption doctrines have eventually prevented courts
from enforcing rules created for other sectors of economic life on typical labor
phenomena. Gradually, the synergic action of US Congress and legal scholarship has
induced courts to accept the immunity of labor action from antitrust law as the result of an
unquestionable power of legislative institutions to decide social policies in a democratic
country.
   The role Government and Congress played has made the difference between the US
and the European legal scenarios144. The restrictive approach held by the CJEU toward
collective action is consonant with the trends of social policies pursued by European
political institutions145. The creation of a solid system of collective bargaining at European
level would be in contrast with the trend toward the flexibilization of workers’ rights and
working conditions and toward the containment of salaries that have dominated EU social
strategies in the last decades146. EU strategies for workers rights’ protection have focused
on antidiscrimination provisions, erroneously applauded by European scholarships as a
progressive development of European law and as a sort of evolutionary panacea for the
increase of social inequality and injustice within employment relationships147.
   In the EU context, no institution has exercised the counterbalancing action performed
by Congress on US courts’ restrictive attitude to collective action148. As US courts at the
end of the XIX century, the CJEU has proved more sensitive to economic freedom
instances than to labor interests149, but it has not found counterweights to its approach
within the EU institutional framework.
   Nonetheless, although European political institutions have not provided striking
support to labor rights150, collective action and collective bargaining are still recognized as
fundamental rights within the European legal system and deserve adequate protection both
by the CJEU and the domestic courts of the member states151, all the more so after the
implementation of the Lisbon treaty, which granted legal recognition to the Charter of
Fundamental Rights and “provides some basis for a rebalancing of economic freedoms and
social rights” within EU law152.




144 Tomlins C. L., (33).
145  Ludlow A., The Public Procurement Rules in Action: An Empirical Exploration of Social Impact and Ideology, in
Cambridge Yearbook of European Legal Studies, vol. 16. 2014, p 2019; Deakin S., (5), at 19 ff.
146 Carabelli U., (7), 180.
147 Conversely, the European antidiscrimination law has recently been interpreted as the blanket for hiding

the gradual dismantlement of the traditional techniques of workers’ protection developed by national member
states; Somek A., Engineering Equality: An Essay on European anti-discrimination Law, Oxford University Press,
2011, 10 - 11.
148 See Rebhahn R., (94), 304; Deakin S., (5), 27; Ballestrero M.V., Lo Faro A., Razzolini O., (5), 543; Bogg A.,

(44), 69.
149 Reich N., (4), 23.
150 But see, recently, the European Pillar of Social Rights, proclaimed by the European institutions on November,

17th 2017.
151 On the duty for European institutions, including the Court, to grant adequate protection to labor rights

under art. 28 of the Chart see Deinert O., (4), 1454.
152 Deakin S., (5), 38 ff, 42; See Weatherill S., (5), 38 and 39; See Rebhahn R., (94), 302; de Vries A., (17), 227

ss.

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6. Conclusions.

   Through a comparison with the American case law, this essay has shown that the
CJEU’s doctrine on the relationship between labor actions and economic freedoms
potentially undermines the very “essence” of the right to strike and bargain collectively,
founded on the free exercise of customary economic weapons by social partners. These
outcomes are inconsistent with the protection granted to the right to strike and to
collective bargaining by EU law, and with the very statements of the CJEU itself, which has
in many occasions explicitly recognized the rights to strike and to collective bargaining as
fundamental.
   The decisions of the European Court assume that the conflict between labor rights and
economic freedoms is unsolvable in a modern capitalistic society and that the good
functioning of the common market requires collective rights to be significantly restricted.
   This theoretical construct disregards the positive effects that collective bargaining,
especially at a transnational level, can exercise on European market. Collective bargaining
could prevent the already increasing phenomena of social dumping; hinder the reduction in
salaries in most European countries153; mitigate the dramatic polarization of the European
labor market between workers coming from countries with high and low labor standards154,
and fostering fairer economic competition among undertakings.
   In the US legal system, labor immunities from antitrust law have been the consequence
of a clear political choice, achieved with the implementation of an organic legislative
framework for collective bargaining, and of a more in-depth understanding of the very
nature of collective bargaining as an economic and social phenomenon. For the time being,
a similar process has not taken place in the European scenario and CJEU case-law is
grounded on a misleading idea of collective bargaining and of is relationship with
competition and economic freedoms in the EU constitutional framework. Nonetheless, the
doctrine of collective actions and collective bargaining as fundamental rights, already
consolidated in its decisions, should lead the Court toward a different and fairer balance
between labor rights and economic freedoms155.


                                               Bibliography


Ballestrero M.V., Lo Faro A., Razzolini O., Sub. Art. 28, in Mastroianni R.N., Pollicino O.,
Allegrezza S., Pappalardo F., Razzolini O., Carta dei diritti fondamentali dell’Unione Europea,
Giuffrè, 2017, 527.
Barnard C., Deakin S., Market Access and Regulatory Competition, Jean Monnet Working Paper
9/0, 2001.
Bercusson B., The Trade Union Movement and the European Union: Judgment Day, in European
Law Journal, 13, 3, 2007, 279, 279.

153 See Deakin S., (5), 30 ff.
154 For an analysis of the negative consequences of trade unions’ decline on economic and social equality
within modern socio-economic systems, see Rosenfeld J., (76), 68 ff.
155 Hös N., (4), 30 ff.


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                                                                                     Issue 2, Vol. 12 (2019)
                                                                                      Section Miscellaneous


Biasi M., “We Will All Laugh at Gilded Butterflies”. The Shadow of Antitrust Law on the Collective
Negotiation of Fair Fees for Self-Employed Workers, in https://www.ssrn.com/index.cfm/en/, also in
European Labour Law Journal, 2018, 9, 4, 354.
Biasi M., Statutory Employee Representation in Italian and U.S. Workplaces: A Comparative Analysis
of the Fiat/Chrysler Case, in Labour law journal, 2015, p. 241 ss.;
Bogg A., Viking and Laval: The International Labour Law Perspective, in Freedland M., Prassl J.
(eds.), Viking, Laval and Beyond, Hart Publishing, 2014, 41.
Brody D., Section 8(a)(2) and the Origins of the Wagner Act, in Friedman S., Hurd R.W., Oswald
E.A., Seeber R.L. (eds), Restoring the Promise of American Labor Law, Cornell University Press,
1994.
Carabelli U., Europa dei Mercati e Conflitto Sociale, Cacucci, 2009, 162.
Caro de Sousa P., Horizontal Expressions of Vertical Desires: Horizontal Effect and the Scope of the
EU Fundamental Freedoms, in Cambridge Journal of International and Comparative Law, 2, 3, 2013,
480.
Counturis N., Engblom S., Civilising the European Posted Workers Directive, in Freedland M.,
Prassl J. (eds.), Viking, Laval and Beyond, Hart Publishing, 2014, 279
Cox A., Labor and the Antitrust Laws-A Preliminary Analysis, in University Pennsylvania Law.
Review, 104, 1955, 252.
Dau-Schmidt K.G., The Changing Face of Collective Representation: The Future of Collective
Bargaining, in Indiana University School of Law-Bloomington Legal Studies Research Paper Series,
Research Paper N. 72, 2007.
Davidov G., A purposive approach to labour law, Oxford University Press.
de Búrca G., After the EU charter of fundamental rights: the court of justice as a human rights
adjudicator?, in Maastricht Journal of European and Comparative Law, 168, 20, 2013, 168.
De Vries S. A., Protecting fundamental (social) rights through the lens of the European single market: the
quest for a more “holistic approach”, 32 in International Journal of Comparative Labour Law, 293, 32,
2016, 203.
Deakin S., The Lisbon Treaty, The Viking and Laval Judgments and the Financial Crisis: In search of
New Foundations for Europe’s ‘Social Market Economy’, in Bruun N., K. Lörcher, Schömann
I.(eds), The Lisbon Treaty and Social Europe, Hart Publishing, 2012, 19.
Deinert O., Art 28 CFREU. Right of collective bargaining and action, in Ales E, Bell M., Deinert
O., Robin-Olivier S. (eds.), International and European Labour Law. Article by Article
Commentary, Hart, 2018, 1454.
Farzin L., On the antitrust exemption for professional sports in the United States and Europe, in Jeffrey
S. Moorad Sports Law Journal, 22, 2015, 75.
Forbath W.E., Law and the Shaping of the American Labor Movement, Harverd University Press,
1991.
Freedland M., Prassl, J. Viking, Laval and Beyond: An Introduction, in Freedland M., Prassl J.
(eds.), Viking, Laval and Beyond, Hart Publishing, 2014.
Freedland M., Prassl, J. Viking, Laval and Beyond: An Introduction, in Freedland M., Prassl J.
(eds.), Viking, Laval and Beyond, Hart Publishing, 2014.
Grosheide E., Barenberg M., Minimum Fees for the Self-Employed: A European Response to the
"Uberized" Economy? in Columbia Journal of European Law, 22, 2016, 193.



https://doi.org/10.6092/issn.1561-8048/10110                                                              146
 Fabio Pantano                                                              Italian Labour Law e-Journal
                                                                                   Issue 2, Vol. 12 (2019)
                                                                                    Section Miscellaneous


Handler M., Zifchak W.C., Collective bargaining and the antitrust law: the emasculation of the labor
exemption, in Columbia Law Review, 81, 1981, 459.
Hendy E., The Dramatic Implications of Demir and Baykara, in Industrial Law Journal, 39, 2010, 2.
Hös N., The principle of proportionality in the Viking and Laval cases: An Appropriate standard of
Judicial Review?, EUI Working Paper Law 2009/06.
Kilpatrick C., Has policentric strike law arrived in the UK? After Laval, after Viking, after Demir? in
International Journal of Comparative Labaour Law and Industrial Relations, 30, 2014, 293.
Koukiadaki A., The Far-Reaching Implications of the Laval Quartet: The Case of the UK Living
Wage, in Industrial Law Journal, 43, 2, 2014, 91.
Leroy M.H., The narcotic effect of antitrust law in professional sports: how the Sherman act subverts
collective bargaining, in Tulane Law Review, 86, 2012, 859.
Leslie D.L., Principles of labor antitrust, in Virginia Law Review, 66, 7, 1980, 1183.
Ludlow A., The Public Procurement Rules in Action: An Empirical Exploration of Social Impact and
Ideology, in Cambridge Yearbook of European Legal Studies, vol. 16. 2014, p 2019.
Mantouvalou, Labour Rights in the European Convention on Human Rights: An Intellectual
Justification for an Integrated Approach to Interpretation, in Human Rights Law Review, 13, 3, 2013,
529.
Meltzer B.D., Labor Unions, Collective Bargaining, and the Antitrust Laws, in The Journal of Law
and Economics, 6, 1963, 152.
Micklitz H.W., De Witte B. (eds.), The European Court of Justice and the Autonomy of the Member
States, Antwerp, Intersentia, 2012.
Novitz T., The internationally recognized right to strike: a past present future basis upon which to
evaluate remedies for unlawful collective actions, in International Journal of Comparative Labaour Law
and Industrial Relations, 30, 2014, 357.
Parlow M.J., The NBA and The Great Recession: Implications for The Upcoming Collective Bargaining
Agreement Renegotiation, in Marquette University Law School Legal Studies Research Paper Series.
Research Paper No. 10-29, 195.
Rebhahn R., Broader Lessons for European and Domestic Labour Law, in Freedland M., Prassl J.,
Viking, Laval and Beyond, Hart Publishing, 2014, 295.
Reich N., How proportionate is the proportionality principle? Paper presented at the Oslo
conference on “The reach of free movement”, 18 – 19 May 2011, 11.
Rosenfeld J. What Unions No Longer Do, Harvard University Press, 2014.
Somek A., Engineering Equality: An Essay on European anti-discrimination Law, Oxford
University Press, 2011.
St. Antoine T.J., Antitrust Law at the Expense of Labor Law, in Virginia Law Review, 62, 2015,
603.
Tomlins C.L., The State and the Unions. Labor Relations, Law, and the Organized Labor Movement
in America, 1880-1960, Cambridge University Press, 1985.
Velyvyte V., The Right to Strike in the European Union after Accession to the European Convention on
Human Rights: Identifying Conflict and Achieving Coherence, in Human Rights Law Review, 15, 2015,
73.
Weatherill S., Viking and Laval: The EU Internal market perscpective, in Freedland M., Prassl J.
(eds.), Viking, Laval and Beyond, Hart Publishing, 2014.



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 Fabio Pantano                                                    Italian Labour Law e-Journal
                                                                         Issue 2, Vol. 12 (2019)
                                                                          Section Miscellaneous


Willborn S.L., Laval, Viking and American labour law, in Comparative Labor Law and Policy
journal, 32, 2011, 1079.


Copyright © 2019 Fabio Pantano. This article is released under a Creative Commons
Attribution 4.0 International License.




https://doi.org/10.6092/issn.1561-8048/10110                                                  148
