The Right to Collective Bargaining in Action: The ongoing short-circuit between economic and social dimensions
Title: The Right to Collective Bargaining in Action: The ongoing short-circuit between economic and social dimensions
Author: COMANDÈ, Daniela
Citation: European Journal of Social Law (EJSL), 2012, 2, 99-110
The co-existence of a social system of industrial relations and the EU legal order poses difficult problems of coordination, which can cause friction. Practices established by the social system – collective self-made laws – or considered legitimate – such as the strike – conflict with an interpretation of the Treaties, while the living law, as represented by the case law, finds full consecration in the opposite direction to the wishes of social partners, in a language that is not always coherent. The reality is that this is not just a contrast between some of the rules, important as that is, nor does it merely involve some segment of the European constitutional framework, however decisive. The right to collective bargaining in itself implies stepping outside the classical legal framework for a moment: it presupposes an act creating rules different from the ordinary ones – rules that are not only built with other parameters, but that even emanate from other authorities. The regulative process and the agreements made by social partners are not definitively situated according to the authority of the EU legal order, which could generate a split in this context. The fracture has created a unique situation, or in the Gramscian sense, a historic blockage between structure and superstructure which cannot be eliminated without the recognition of the economic conditions that prevent a rapprochement between two spheres which are potentially not so distant and which could be coordinated by following the footsteps of Joerges.
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