한-EU FTA 노동조항 관련 분쟁의 법적 쟁점

This article analyses the recent report of the Panel of Experts with respect to the dispute between the European Union (EU) and the Republic of Korea (Korea) regarding the implementation of Article 13.4.3 of the EU-Korea Free Trade Agreement (FTA). Firstly, it looks into the procedural issue, namely the legal admissibility of the EU’s complaint based on a trade-labour link requirement under Article 13.2.1. Specifically, it perceives the debate between the two disputing parties over this issue as a ‘framing battle’, i.e. ‘trade dispute’ vs ‘labour dispute’, which led the Panel to consider it unnecessary for the EU to establish the trade-labour link condition. Secondly, this article delves into the issue of the content and scope of the obligations in respect of the principle of freedom of association in the context of Article 13.4.3. In particular, it examines the reasoning of the Panel that read into the text of Article 13.4.3 the case law of the supervisory bodies in the International Labour Organization (ILO) on freedom of association as well as the whole text of the ILO Nos 87 and 98 Conventions, while critical of the legal reasoning, not necessarily of the final conclusion. Thirdly, this article explores the findings of the Panel on the compatibility with the applicable law of the concerned provisions and/or practices of the Trade Union and Labour Relations Adjustment Act in turn. After taking a brief note of the Panel’s decision on the obligation to make sustained and continued efforts towards ratifying the fundamental Conventions, this article concludes with some suggestions for the Korean government in order to address potential issues that may arise in the future.