Industrial action in private international law

Abstract

This contribution deals with both jurisdiction and applicable law with regard to cross-border collective actions in labour law. It demonstrates that the European conflicts rule embodied in Article 9 of the Rome II Regulation is open to diverging interpretations. This can, to a large extent, be explained by the very diverse legal characterisation of industrial action in the national systems of the EU Member States. The connecting factors used in the Rome II Regulation also create specific challenges when applied in the context of industrial action. As a result of these complications, Article 9 Rome II currently fails to fulfil its function of creating legal certainty around the legality and the legal consequences of industrial action with a cross-border element. A further clarification of the scope of Article 9 and the role played by the law of the country in which the industrial action is taken would help to reduce the current confusion and uncertainty. The uncertainty as to the applicable law is exacerbated by the rules on jurisdiction in the Brussels I bis Regulation which allow, to some extent, for forum shopping. Two provisions of the Brussels I bis Regulation might warrant revision to reduce their negative impact on the exercise of the right to industrial action: the rule on multiple defendants (Article 8(1)) and the rule granting jurisdiction to the place where the damage caused by the industrial action is sustained (Article 7(2)).