Monti Regulation

The so-called Monti Regulation aims to ensure the free movement of goods in the EU, while acknowledging the right and freedom to take strike action. In order to address trade union concerns that economic freedoms were being given precedence over social rights, a second Regulation (Monti II) was proposed, but ultimately withdrawn due to objections from some EU Member States.

In November 1997, the EU Commissioner for the Internal Market, Mario Monti, proposed a regulation which sought to put pressure on Member States to take measures to remove obstacles to the free movement of goods. Obstructions to free movement caused by protesting farmers had earlier led to a complaint by the Commission against France for failing to take appropriate measures to guarantee the free movement of goods blocked by protesting farmers. The Court of Justice of the European Union (CJEU) upheld the Commission’s complaint (Commission v. France, Case C-265/95).

Both these developments caused considerable anxiety among trade unions, particularly in the transport sector, where industrial action could have similar effects on the free movement of goods. The outcome was the adoption by the Council of Ministers of the ‘Monti Regulation’ (Council Regulation (EC) No. 2679/98 of 7 December 1998 on the functioning of the internal market in relation to the free movement of goods among the Member States). The Regulation states that Member States should provide for existing alternative dispute resolution mechanisms to cover cross-border situations. It includes the following article: ‘This Regulation may not be interpreted as affecting in any way the exercise of fundamental rights as recognised in Member States, including the right or freedom to strike. These rights may also include the right or freedom to take other actions covered by the specific industrial relations systems in Member States’.

This is a rare acknowledgement in an EU legal measure of the right to strike: the Regulation establishes the priority of this right and the right or freedom to take other actions recognised in Member States over the EU principle of the free movement of goods.

However, trade unions remained concerned that economic freedoms established in the EC Treaty were being given priority over fundamental social rights such as the right to strike. Unions had aired their concerns as a result of CJEU rulings in the Viking case and the Laval case, which raised questions about the relationship between market freedoms and fundamental social rights. Therefore, in March 2012, the European Commission issued a proposal which it called the Monti II Regulation (80Kb PDF).

The proposed Monti II Regulation confirmed that there was no primacy of the freedom to provide services or of establishment over the right to strike, while recognising that situations may arise where these freedoms and rights may have to be reconciled in accordance with the principle of proportionality. The proposal introduced an alert mechanism in order to provide other Member States and the Commission with ‘timely and transparent’ information on serious acts or circumstances affecting the effective exercise of the freedom of establishment or the freedom to provide services.

However, in September 2012, 12 national Parliaments adopted reasoned opinions expressing concerns related to the added value of the draft Monti II Regulation, the choice of its legal basis and the European Union competence to regulate this matter.

Although the Commission was of the view that the principle of subsidiarity had not been breached, it nevertheless recognised that this proposal was unlikely to gather the necessary political support within the European Parliament and European Council to enable its adoption. Consequently, it withdrew the proposal at the end of September 2012, hoping that this would lead to a rapid negotiation of the other part of the package it had proposed, the proposal for an Enforcement Directive in the area of the posting of workers in the EU. This Enforcement Directive was adopted in May 2014 and came into force on 16 June 2016.

See also: Right to take collective action; Strike action at EU level; Transnational industrial action; Posted workers.