Collective Action in Labour Conflicts Under the Rome II Regulation

In the first part of this two-part study, the authors discuss the background and the scope of application of Article 9 of the Rome II Regulation. This Article contains a special rule for the law applying to non-contractual obligations arising out of cross-border collective action. With this, the Regulation – at first sight – seems to recognize the special status of industrial relations within the system of private international law. Upon closer scrutiny, however, the provision is still very much based on private law concepts. This leads to uncertainty as to the exact scope of application of the provision and this in turn reduces its effectiveness in protecting the right to collective action in cross-border cases.In the second part of this two-part contribution, we focus on the content of the choice of law rule of Article 9 and its relation to the other provisions of the Regulation. The application of the rule to some (in)famous cases – Tor Caledonia, Viking, Laval – demonstrates the difficulty in applying concepts developed to regulate individual behaviour in private law cases to the phenomenon of industrial action. The special rule of Article 9 seems to offer some protection to workers, but much will depend on its interpretation by the courts. In any case, the rule can not undo the effect of the Viking and Laval judgments which directly affect the right to strike as such