‘No2EU’ revisited: unpicking the arguments of British left nationalism
At the last European elections, the No2EU campaign targeted various aspects of EU law and the way it impacts on workers in Britain. They went on to win 153,236 votes – a mere 1 per cent of the total vote, as UKIP monopolised the nationalist vote (winning 2.5m / 16.5 per cent). Despite this failure, there is now talk on the left of reviving the No2EU coalition for the 2014 European elections. In light of this, we republish this critique written by Natalie Silverstein in 2009, which unpicks the arguments of Bob Crow’s electoral coalition.
The No2EU campaign is another sign of a worrying turn towards nationalism in the labour movement following the strikes for ‘British jobs, for British workers’ in the construction industry.
Despite being backed by a number of left wing groups, including the Socialist Party and Tommy Sheridan’s Solidarity, the whole emphasis and focus of the No2EU campaign seeks to blame the European Union and capitalists in Europe.
In this article, I consider whether arguments of the No2EU campaign justified.
I first look at the stance the campaign takes on immigration controls, arguing that the logic of their position is essentially reactionary, for it breaks openly with the principle of defending the freedom of movement in Europe. Moving on, I then take a closer look at the judgements of the European Court of Justice (ECJ), which are given considerable emphasis by No2EU and have, more generally, gained prominence on the left since the strikes in the construction industry. I try to correct some of the misconceptions surrounding these judgements.
Perhaps the most worrying section of the No2EU website is the one on “Yes to workers’ rights,” which starts with the argument that “The social dumping of exploited foreign workers in Britain is being carried out under EU rules demanding the “free movement of capital, goods, services and labour” within the EU.”
This is a cynical and deliberately confusing attack on what is actually one of the main progressive aspects of EU law, namely the free movement of workers. For internationalists, the only possible criticism of this is the fact that it creates a “fortress Europe”, a bloc within which workers can move freely, while those from outside Europe find it increasingly difficult to enter.
No2EU have actually picked up on this, saying “The so-called ‘free movement’ of labour is part of the development of a deeply racist Fortress Europe which would increasingly exclude people from outside the EU and undermine wages and working conditions inside the bloc.”
But, perversely, rather than arguing for an opening of the borders to those from outside Europe, their answer is…. excluding European workers from Britain by abolishing the free movement of labour inside the EU.
No2EU state that “To ferry workers across Europe to carry out jobs that local workers can be trained to perform is an environmental, economic and social nonsense.” But the fact that workers from one European country can move to any other, can bring their dependant relatives with them, and, at least in theory, cannot be discriminated against in relation to “native” workers, is undoubtedly something socialists and progressive trade unionists must support. Instead, No2EU argue that this “creates a pool of working people to be exploited and treated no better than a commodity like a tin of beans.”
There are countless examples of foreign workers being super-exploited in Britain and other wealthier EU nations. But the answer to this is united struggle for these workers to be given the same pay, terms and conditions as local ones – not to say they should be denied the opportunities altogether to work here.
On the other hand, No2EU have very little to say about what is actually a more problematic aspect of EU law, namely the free movement of goods, which illustrates how the EU is a capitalist club designed to protect business interest.
Of course, socialists and the left should reject protectionism on internationalist grounds. We should be against the discrimination of foreign capitalists in Britain too, like how third world producers are barred from British markets.
But it is important to also recognise the irrationality of the market system that huge quantities of the same good are shipped between different countries at great environmental cost. Britain, for example, exports masses of beef to Holland each year and imports a roughly equal amount of the same.
All that No2EU have to say about this is “If ‘food-miles’ represent an unacceptably large carbon footprint, then ‘labour-miles’ and shunting human beings around Europe in the pursuit of profit is even more damaging.”
This is an absolutely shameful statement. It shows clearly that a re-introduction of stricter immigration controls is their overwhelming priority.
The Laval judgement
Also in this section, No2EU write, “Successive EU Directives and European Court of Justice (ECJ) decisions have also been used to attack trade union collective bargaining, the right to strike and workers’ pay and conditions.”
The first problem with this is its one-sidedness – it ignores progressive aspects of EU law, such as the Working Time Directive, which sets a maximum working week and lays down minimum standards for rest periods and annual leave. Nonetheless, there is certainly a pattern of anti-working class decisions from the European Court of Justice in recent years, most famously the Viking and Laval judgments.
Laval was decided on 18 December 2007. Its background lay in the process that saw Swedish unions take action against a Latvian construction company, Laval, about the working conditions of Latvian workers refurbishing school in a Swedish town Vaxhold.
It is interesting that No2EU cite the case, because the Swedish unions fighting for rights of Latvian workers, obviously had a very different approach from that taken in the first Lindsay Oil Refinery Strike, where the (false) belief that foreign workers were suffering worse conditions, was met not by calls for these to be improved but for the jobs to go to British workers.
In this case, Laval refused to sign a collective agreement with the Swedish building union, instead signing one for lower wages with a Latvian union. The trade unions initiated a blockade of the building site in protest, and Laval took legal action to challenge this collective action on the basis that it interfered with their right under EU law to provide services across borders.
The case was referred to the ECJ; in its ruling, the court recognised the right to take industrial action as “fundamental,” but stated that this had to be “balanced” against employers’ competing rights under EU law, in this case the provision of services across borders. It ruled that industrial action supporting union demands in member states where workers were “posted” (i.e. sent by an employer to work for a set period), were not justified where their demands exceeded the extent of provisions under the Posting of Workers Directive.
Until this point, the Posting of Workers Directive had been generally seen as setting a minimum level of protection to workers posted to separate states. The Directive exists to protect those workers sent temporarily by their employer to work in another member state – an arrangement that is common in industries such as transport, telecommunications, entertainment, maintenance and, of course, construction. It does not apply to those hired directly by an employer in another state.
Under the Directive, each EU member state must ensure that employers observe national terms & conditions on issues like minimum pay and holidays, maximum hours, health and safety, maternity, and young workers’ protection. There are no uniform EU-wide terms and conditions, each state is allowed to make exemptions, and some aspects are only “options” rather than requirements – for example the application of all generally binding collective agreements to posted workers. But the basic advantage is that more favourable terms and conditions in the host state override less favourable ones in the posted workers’ contract.
The Directive was passed in 1996 (although it was not in effect until 1999); at the time, the British conservative government criticised it as an abuse of the EU treaty because of its “granting rights to employees” and asked for the treaty to be amended to prevent this in future.
This underscores the absurdity of the idea that British bosses are somehow better on workers rights – while the Directive did not go far enough to protect these, the British government thought it had gone too far! The British government also failed to fully implement specific provisions on construction workers and the recognition of collective agreements.
Part of the reason that the Directive initially passed was as a response to bosses undercutting wages and conditions by use of workers from another country. In substance, the Directive is something to be defended, but is very minimal and much more protection is needed. It certainly should not be used to stop workers using industrial action towards better conditions.
There is a lot of confusion out there regarding the directive. Many activists on the left have argued that the Directive was a neoliberal measure in itself, which has since been reinforced by a series of European Court of Justice (ECJ) judgements that have ruled against attempts to restrict the employers’ exploitation of this measure.
This is not the case. The Laval judgement interpreted the Directive along reactionary, anti-union lines. The effect of the Laval judgement was that workers are stopped from using industrial action to fight for anything better than the minimum of protection.
The Posting of Workers Directive, thereafter, becomes a ceiling, rather than a floor, and, as has been explained by the European Trade Union Congress (ETUC), this means collective action to push for equal pay for migrant workers with host country workers could be regarded as an obstacle to free movement of services and therefore unlawful. But it is the interpretation, rather than the original legal framework as such, which is the issue.
Anti-union rulings of the ECJ
Viking was a linked case, decided one week before. Viking Line, a Finnish passenger shipping company, owned and operated a ferry, Rosella. Most of the crew were Finnish and benefited from a collective agreement negotiated by Finnish Seamen’s Union. Viking then wanted to re-register Rosella as an Estonian ship and replace the crew with Estonians on lower wages. The FSU effectively prevented this, protecting jobs and wages, and called on the International Transport Federation (ITF) to support this.
Once Estonia joined the EU, Viking took action against the FSU and ITF to stop their prevention of the company re-registering the ship. One of the union’s arguments was to state that a private company cannot sue a union. Unfortunately the ECJ disagreed, stating that a private company could sue a union or federation for losses as a result of threatened or actual collective action taken in the context of the company exercising the freedoms for business in the EU – a totally reactionary judgement, undermining the right to strike.
The judgment also stated that Article 43 of EU Treaty (which sets out the “right of establishment” for businesses to set up in other EU countries), and a Regulation which applies this to a particular area of maritime transport for passengers / goods, could be invoked against trade unions in a situation where they were threatening this right.
The Advocate General (a type of legal advisor to the ECJ) said that the right to freedom of establishment was important for increasing economic welfare of all member states, but at the same time, had painful consequences for workers of companies that have decided to locate. He went on to state that the European economic order is based on a “social contract” whereby workers must accept recurring negative consequences inherent to the common market in exchange for the general improvement of society’s living and working conditions.
This was a quite unambiguous statement that the bosses’ right to relocate comes ahead of workers’ rights to use collective action to protect their jobs.
This attitude is also shown in the judge’s pronouncement that collective action must be “proportionate.” The ETUC point out that “proportionality” would be defined by the court on case-by-case basis, leading to an “intolerable uncertainty for unions involved in virtually any case of industrial action over migration and free movement.”
There are two more recent anti-worker decisions of ECJ. The first was Rüffert, decided in April 2008. This addressed whether public authorities, when awarding contracts for work, have the right to demand that companies tendering for the work commit themselves to pay wages to all workers including posted workers. The ECJ stated in this case that the Posting of Workers Directive “seeks in particular to bring about the freedom to provide services” – rather than being about the protection of workers.
In the Luxembourg case in June 2008, the European Commission brought legal proceedings against the state of Luxembourg, because of the state’s legal requirement that companies posting workers to its territory had to comply with certain standards. The Commission argued that this exceeded what was allowed under the Posting of Workers Directive. The court agreed, stating that the way Luxembourg had implemented the Directive was an obstacle to the free provision of cross border services, and ordering it to change its laws. It then made the more general pronouncement that any exception to the fundamental freedom to provide services would be strictly interpreted.
Put it in context: Britain has the toughest anti-union laws in Europe
No2EU argue that the ECJ, which currently decides specific questions of EU law referred from national courts, would effectively become the ‘supreme court’ of EU under the Lisbon Treaty. They refer to the ECJ as ‘unaccountable’ and this, of course, leads to the strange, and wrong, implication that other courts are somehow accountable; in fact, of course judges in the UK and other national courts, are not elected and are close to impossible to remove from office.
There is, nonetheless, a pattern of decisions of ECJ that put the interests of capital before that of workers. The “right to strike” has been cited as a right that is fundamental by the court, but not as fundamental as others. However, in some member states, the right to strike is a key constitutional right and all member states have ratified the ILO & Council of Europe conventions guaranteeing freedom of association and the right to collective bargaining and strike, at least in theory.
In general this is undermined by ECJ, but it needs to be put in context. The reality is that in UK domestic law, the situation is very different from those states where there is a constitutional right to strike.
In English law this right does not exist and at “common law” (the system of law established by judgements of courts which become precedents), those striking and organising strikes liable for breach of contract, a range of torts (civil wrongs) such “inducing breach of contract,” as well as possible criminal offences.
Historically, this was tempered by legislation, brought in by successive Labour governments, which established immunity from torts in given situations, where there was a direct dispute between the worker and their employer over given issues – but never a right to strike as such.
This was always attacked by the English courts – but, of course, since the Thatcher government the legislation brought in has also made it much more difficult to strike. Under current English law, strikes are allowed only for very limited aims and with tremendous bureaucratic obstacles put in the way of taking strike action, like the need for postal ballots.
The bottom line is that it is absurd for No2EU to blame anti-working class legislation on the EU alone, when our own government is even more a source of such legislation, and is key in pushing for anti-working class policies such as privatisation across Europe.
Neoliberalism and the EU
Clearly, not everything that the No2EU campaign says is wrong or reactionary. They are right to identify the reactionary anti-union judgements of the ECJ. They also focus on opposition to the Lisbon Treaty. No2EU say correctly that this is a reworked version of the failed EU constitution, which workers had rightly rejected.
But what was excellent about the French “no” in the referendum on the European constitution was that it was resolutely a “no of the left,” and certainly not on a nationalist basis.
Workers in France correctly identified that the EU constitution would enshrine in constitutional law (i.e. law with a higher status than normal statute legislation passed at national or European level) a series of neoliberal, pro-market measures.
The references on the No2EU site to the “EU gravy train” with huge salaries and expenses claims highlight a serious injustice and scandal in the European system, but just look at the expense scandal in the British parliament now. Isn’t it so symbolic of the great similarities between “our own” bosses and those in Europe?
Indeed No2EU also emphasise the pushing of competition law and privatisation, but this is a process championed and led by the British government that obviously would not be reversed as a result of leaving Europe. They also talk about attacks on civil liberties due to EU directives giving state agencies the power to monitor emails and websites visited, but this pales in comparison with much more serious attacks on civil liberties (such as 28 days’ detention without charge) carried through by the British government.
As absurd and ridiculous as these and many of the arguments of No2EU are, they have to be taken very seriously and fought against in the working class movement. We shouldn’t mince our words either: at a time of global capitalist crisis, when there is an urgent need to fight as a class against the bosses, the No2EU campaign is at best an almighty diversion, at worst its anti-migrant language risks turning workers against our own brothers and sisters, fighting for their jobs when we should be fighting for jobs for all workers.
Many of the same forces and activists that campaigned for this “no of the left” vote are now involved in organising the NPA (New Anticapitalist Party) in France. If only rather than setting up a nationalist campaign, Bob Crow and the RMT had followed their example and set up a new anticapitalist party in Britain. But with or without Bob Crow, we urgently need to take steps to such a party.
Authors’ addendum: This year, Left Unity, a new project to form a radical alternative party to the left of Labour, has been launched. I support this initiative for a new left party and hope it will take a clear stance on defending migrants, and refuse to parrot the jingoism that blighted the No2EU campaign. This article was written and first published in 2009 in the newspaper, Workers Power. It has been republished with minor edits.