European Trade Union Institute, ETUI.

Viking C-438/05

  • The facts

The shipping line Viking runs ferry services between Finland and Estonia under the Finnish flag. The company’s management decided to re-flag their ferries - using the Estonian flag. The decision was also taken to employ Estonian labour in order to take advantage of the fact that wages are lower in Estonia. In response, the Finnish Seamen’s Union (FSU) warned the company Viking that they might take collective action to stop the re-flagging process. To avoid the danger of being undercut, it also asked the International Transport Workers’ Federation (ITF) under its “Flag of conveniences campaign” to ask their members not to start negotiations with Viking unless they were based in Finland. According to this campaign, the ITF affiliates agreed that only trade unions established in the state of beneficial ownership should have the right to conclude collective agreements covering the vessel concerned.

  • The judgement

The ECJ recognised the right to take collective action, including the right to strike as a fundamental right which forms an integral part of the general principles of Community law. Nevertheless, this right might be restricted, as reaffirmed by Article 28 of the Charter of Fundamental Rights of the European Union which states that it is to be protected in accordance with Community law and national law and practices. Furthermore the exercise of this right may be subject to certain restrictions.

In the Laval and Viking cases the ECJ states that national employment law comes inside the scope of Community’s free movement legislation. This means that no special treatment is applied in the employment law sphere. The judges go even further when they consider that the freedoms can be invoked against trade unions (this is called: horizontal direct effect), meaning that employers can now take trade unions to court, to get a judgement on the legality of a collective action.

The ECJ sees the right of trade unions to take collective action as a restriction on the freedom to provide services or the freedom of establishment. Collective action must be justified. It must have a legitimate aim, respond to overriding reasons of public interest and be suitable for securing the attainment of the objective pursued and not go beyond what is necessary in order to attain it. Those conditions are often called the proportionality test, which is now introduced by the court with respect to the trade union rights.

The protection of workers is a legitimate interest, which in principle justifies a restriction of one of the fundamental freedoms guaranteed by the Treaty. It is in principle up to the national courts to ascertain whether the objectives pursued by means of collective action concern the protection of workers. However the court lays out very strict guidelines to national courts with regard to how they have to judge those cases. The question they have to answer is, if the jobs and conditions of employment are really jeopardised or under serious threat by the behaviour of the enterprise.

Read the judgement
Read the opinion of Advocate General POIARES MADURO