The Proposal for a (So-Called) ‘Monti II’ Regulation on the Exercise of the Right to Take Collective Action within the Context of the Freedom of Establishment and the Freedom to Provide Services: Changing without Reversing, Regulating without Affecting

Abstract

On the 21 March 2012 the European Commission adopted its proposal for a Regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services. Conceived as both a response and a clarification of the case law of the Court of Justice, the new Regulation should address the widely debated problem of the relationship between fundamental freedoms and fundamental social rights. The present contribution seeks to identify the objectives of the proposal, through a critical reading of its text and of the explanatory memorandum, to assess its potential effect. The analysis is developed around two main themes: the relationship of the proposal with the recent case law of the European Court of Human Rights regarding the right to strike, and its consistency with the doctrine developed by the CJEU in Viking and Laval.