Seminar 5 (8 November 2012) Competition Law and Labour Law
In this seminar we look at a handful of cases that have taken on labour arrangements. The tension between the normative stance of labour lawyers and that of antitrust lawyers should be self-evident: the latter believe in market forces as a means of adjusting factors of production, the former are unconvinced that labour is such a malleable factor of production, and workers require protection. The cases show that the court has not quite worked out how to manage the intersection, what might be said to be puzzling is how in some cases the court ‘sees’ the issue (e.g. Albany) while in others it does not notice the point (e.g. Höfner).
Case C-67/96 Albany International  ECR I-5751
Case C-22/98 Criminal Proceedings against Becu  ECR I-5665
Case C-55/96 Job Centre  ECR I-7119
Brown v Pro Football, Inc. 518 US 231 (1996)
Van den Bergh and Camesasca ‘Irreconcilable Principles? The Court of Justice Exempts Collective Labour Agreements from the Wrath of Competition Law’ (2000) 25 European Law Review 492
Plus, one of the following three, which are papers written by labour lawyers reacting to competition law intervening in ‘their’ territory:
Deakin ‘Labour Law as market Regulation: The Economic Foundations of European Social Policy’ in Davies et al (eds) European Community Labour Law: Principles and Perspectives (Oxford University Press, 1996)
Giubboni Social Rights and market Freedom in the European Constitution: A Labour Law Perspective (CUP 2006) ch.3 (you can skip the part on internal market law)
Sciarra ‘Job Centre: An Illustrative Example of Strategic Litigation’ in Sciarra (ed) Labour Law in the Courts (Hart, 2000)
Time permitting, have a look at Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union, ‘Viking Line’  ECR I-10779. This is not an antitrust case (could it have been brought as such?) but have a look at how the ECJ refuses to apply Albany International.
A very interesting debate in the US, which will no doubt reach the EU at some point, is the link between labour law/antitrust law and sport/entertainment industries. The EU case law above looks at hard core labour markets, but sport/entertainment markets have some different dynamics. The Brown case picks up on these matters in some way, but if you wish to follow these up more fully, see the following:
LeRoy ‘The narcotic Effects of Antitrust Law in Professional Sports: How the Sherman Act Subverts Collective bargaining’ (2012) 89 Tulane Law review 859
Perritt Jr. ‘Competitive entertainment: Implications of the NFL lockout litigation for sports, theatre, music, and video entertainment’ (2012) available at: http://ssrn.com/abstract=2116664