Academic journal article International Labour Review

The Meta-Regulation of European Industrial Relations: Power Shifts, Institutional Dynamics and the Emergence of Regulatory Competition

Academic journal article International Labour Review

The Meta-Regulation of European Industrial Relations: Power Shifts, Institutional Dynamics and the Emergence of Regulatory Competition

Article excerpt

Abstract.

"Meta-regulation" describes the transnational governance of industrial relations emerging from attempts to resolve conflicts between national collective agreements and EU Member States' freedom to provide services and post workers abroad. The norm underpinning such meta-regulation is competition, not only between workers from different EU Member States but also between States' labour regulations. Using the concepts of "structural power" and "social field", the authors discuss judicial decisions that illustrate the gradual meta-regulation of industrial relations in the EU and show how the power asymmetry between labour and capital is growing in favour of the latter.

The [European] "common" market implied competition between firms, but cooperation between states. This keystone of European construction was removed when member states and the Commission took up the project of a deregulated market, with the wholesale elimination of restrictions in any country or sector to the free circulation of capital and goods. Such an approach is bound to undermine solidarity between member states, creating competition between national legal systems - particularly in the sphere of labour law - within the EU itself. (Supiot, 2006, p. 118)

On 21 February 2013, the European Parliament's Internal Market Committee (IMCO) adopted its opinion endorsing proposals for a new directive initiated by the Employment and Social Affairs Committee. The proposed new directive concerns the enforcement of the Directive concerning the posting of workers (Directive 96/71/EC).The IMCO opinion was strongly criticized by the European Trade Union Confederation (ETUC) for placing the freedom to provide services in the EU above the protection and rights of posted workers. Veronica Nilsson, ETUC Confederal Secretary, stated that "this opinion is a huge disappointment and is unacceptable" and urged the Employment and Social Affairs Committee to "distance itself from this opinion and start a debate on how to tackle exploitation of workers and social dumping" (ETUC, 2013). In our view, the IMCO opinion and the tensions over the final version of the new directive should not be seen in isolation, but as instances of a long and ongoing power struggle over the emergence of "meta-regulation" as a mode of governing industrial relations across the EU. The final outcome of this struggle will define the conditions of work and the social rights of millions of European workers for many years to come.

We borrow the term "meta-regulation" from Morgan (2003), who nearly a decade ago used it to describe the increasing "economization" of regulatory politics of social welfare in Australia. For Morgan, meta-regulation refers to a mode of governance that "excludes competing ways of understanding regulatory policy choices, causing bureaucrats to 'translate' aspects of social welfare ... into the language of market failures or market distortion" (idem, p. 489). In this article, we apply this concept to the regulatory politics of European industrial relations. We explore the gradual emergence of meta-regulation as a novel, market-enhancing mode of governing industrial relations across and between EU Member States, and assess its implications for European labour.

Our starting point is an insightful observation by Supiot, who remarked that "there is already a glaring contradiction between the rules originating from the old common market project (aiming at the harmonization of member states' laws, especially in the social and environmental fields) and those stemming from the new global-market project (aiming at setting national legal systems in competition with each other)" (Supiot, 2006, pp. 118-119). We demonstrate that, with regard to industrial relations, this "glaring contradiction" is currently being resolved on very unfavourable terms for European trade unions, and for European labour in general. In particular, we will show how a series of "top-down" political initiatives from the European Commission and "bottom-up" initiatives from the European Court of Justice (ECJ) have resulted in the gradual "economization" of the regulation of industrial relations in the EU. …

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