In our March labour law update we reported on the EU Commission's newly published proposal for a Regulation on industrial action. The draft Regulation was a response to a number of judgments by the European Court of Justice, notably in the Viking and Laval cases. These cases concern cross-border collective action which had the effect of restricting the exercise of economic freedoms (for example, a business's freedom of establishment) guaranteed by the EU Treaties. In both cases, the Court clarified that the right to strike may, in principle, restrict the exercise of economic freedoms if it pursued a legitimate objective, is justified and does not go beyond what is necessary to achieve the objective.

Reflecting ongoing trade union concerns that this case law hampered their ability to take collective action, the draft Regulation represented the Commission's attempt to reduce tensions and clarify the status quo. However, a number of member states objected on the grounds that it breached the principle of subsidiary (meaning that the EU should only act if it is more effective than action taken at national, regional or local level). As a result, the Commission has withdrawn the proposal.

ETUC, among other trade unions, has responded by lobbying for a "social progress protocol" to be added to the EU Treaties with the aim of clarifying that "economic freedoms and competition rules cannot take priority over fundamental social rights and social progress, and that in case of conflict, social rights shall take precedence". Business Europe, in contrast, has stated that the right to strike "is and should remain an issue to be regulated exclusively at national level" and that the "ECJ rulings in the Viking and Laval cases have set a fair test of proportionality for national courts to assess whether or not the right to strike is used proportionately in a given case."