The Coronavirus pandemic has revealed the vulnerability of modern supply chains due to stoppages in production and unilateral border closures. In particular the initial lack of respirators and medical staff in some Member States due to export controls and border closures remains in the collective memory and has shed a light on structural supply and staff shortages. In order to be in a better position to bridge goods and services bottlenecks in future times of crisis, the EU Commission has now presented a new Single Market Emergency Instrument. It shall complement other, already applicable EU contingency plans.

Specific details of the emergency instrument

The proposal provides for the introduction of a new and comprehensive crisis response structure for the Single Market. Specifically, it is a multi-stage plan, which, according to risk assessment, entails a variety of measures. During the initial phase – contingency – both, EU Commission and Member States are able set up coordination und communication networks in smooth-running times already to be able to respond as best as possible to future disruptions. Vigilance – the second phase – can be activated by the EU Commission in the event of anticipated supply disruptions. In this case, supply chains for essential goods and services will be monitored. Apart from that, strategic reserves for such goods will be built and already existing reserves increased respectively. In the event of a crisis with a wide-ranging impact on the Single Market, the Council can – as a last phase – activate the emergency mode. Examples of such consequences are interfering in fundamental freedoms in the Single Market or considerable disruptions of supply chains, which are indispensable for economic and social life. During this phase, free movement in the Single Market will be upheld through a blacklist of prohibited restrictions. At the request of Member States, it will also be possible for the EU Commission to procure relevant goods and services more easily during this phase.

Single Market instrument must not be allowed to put right to strike at risk

However, from an employee perspective, the EU Commission proposal has a decisive flaw. Prior to the presentation of the emergency instrument, the European Trade Union Confederation (ETUC) had already pointed out the lack of a clause to protect the right to strike in the Commission proposal. ETUC expresses concern that because of the new proposal the existing Regulation on the functioning of the internal market, in which the right to strike is explicitly protected, would be rescinded. This would mean that the legal guarantee for ensuring the right to strike in the Member States would be missing, which might have direct consequences for employees and their representatives. AK President Renate Anderl also warned against such a gap in the law: “In a worst-case scenario, a strike could be seen as crisis, which puts security of supply or free movement of people at risk and which might be broken by referring to the Regulation. This fundamentally contradicts the Convention on Human Rights and the Charter of Fundamental Rights of the EU”. Hence, the Commission proposal is generally to be regarded as problematic. Single Market freedoms could take precedence over other policy fields such as labour law, consumer protection or climate policy, if these are regarded as free market restrictions. In response to the criticism by ETUC, the Commission has now at least included reference to the right to collective bargaining and action – however, only in the non-binding recitals rather than the actual legislation. Therefore, AK continues to support the request of ETUC to insert an explicit clause, which legally enshrines the commitment to trade unions and the right to strike in the Regulation.

Ambiguous role of social partners

Apart from that, according to first assessments there are further points, which have to be amended. For example, the role of social partners in connection with individual contingency measures is ambiguous, even though their cooperation is particularly vital when it comes to prevent personnel shortages and to forge consensus between affected employees and employers. Regarding this, a clear definition of the role of social partners would be required. Concerning employee protection, it is equally essential to incorporate trade unions, labour representatives and businesses.

Further information:

AK Wien: AK Anderl warns - “EU Commission must not be allowed to call into question the right to strike!“ (German only)

European Commission: Crisis-proofing the Single Market - equipping Europe with a robust toolbox to preserve free movement and availability of relevant goods and services

European Trade Union Confederation: Right to strike at risk in new EU law

European Trade Union Confederation: SMEI - Right to strike still not protected