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Viking and Laval: Collective Labour Rights and Market Freedoms in the Enlarged EU

Published online by Cambridge University Press:  27 October 2017

Extract

The aim of this chapter is to argue that the European Court of Justice’s (ECJ’s) rulings in Viking and Laval raise a not completely explicit, but nevertheless significant, challenge to the role and function of national trade unions. Unions must face the dilemma of adjusting action taken to protect their members to the economic freedoms of the EU, whenever there is a situation of potential social dumping.

Type
Research Article
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2008

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References

1 See below n 39.

2 In fact, it first made its entry in the so-called ‘Strawberries Case’, Case C-265/95, Commission v France [1997] ECR I-6959, in which French farmers’ organisations boycotted products from other states. The French Government was found to have infringed Art 28 EC for not having adopted the necessary measures to guarantee the free movement of goods. This ruling led to the so-called Monti Regulation, Council Regulation (EC) 2679/98, [1998] OJ L337/8. See, for a comprehensive analysis, G Orlandini, ‘The free movement of goods as a possible “Community” limitation on industrial conflict’ (2000) ELJ 341; and Novitz, T, International and European protection of the right to strike (Oxford, Oxford University Press, 2003) 254 CrossRefGoogle Scholar. The Court refers to the ‘Strawberries Case’ in Case C-438/05, Viking [2007] ECR I-11767 para 62, to confirm the right of private subjects to rely on Treaty provisions that guarantee fundamental freedoms.

3 The Commission mentions these issues in Communication from the Commission on the Social Agenda, COM(2005)33 fi nal, 9 February 2005, 8. See also the proposals by the groups of experts appointed by the Commission and coordinated by Professor Eduardo Ales in ‘Transnational collective bargaining: past, present and future. Final Report’ (2006), available at <http://www.ec.europa.eu/employment_social/labour_law/docs/transnational_agreements_ ales_study_en.pdf> accessed 27 August 2008. Useful ideas on the ‘Ales Report’ can be found in A Lo Faro, ‘La contrattazione collettiva transnazionale: prove di ripresa del dialogo sociale in Europa?’ (2007) Giornale di diritto del lavoro e di relazioni industriali 551 ff.

4 This passage was rightly emphasised by Lo Faro, ibid, 560.

5 Schmidt, F and Neal, A, ‘Collective agreements and collective bargaining’ in International encyclopaedia of comparative law, vol XV ch 12 (The Hague/Boston/London, Martinus Nijhoff Publishers, 1984) 51–2Google Scholar.

6 An English translation of the Act on the Joint Regulation of Working Life, entered into force on 1 January 1977, can be found in an annex to Schmidt, F, Law and industrial relations in Sweden (Stockholm, Almqvist & Wiksell International, 1977) 234 ff Google Scholar.

7 See Schmidt, ibid, especially 23–4 and 166 ff. See also the references in Kahn-Freund, O, Labour and the law (London, Stevens, 1977) 63 & 71–2Google Scholar; and Wedderburn, Lord’s comprehensive comparative analysis of the Scandinavian systems in ‘The right to strike: is there a European standard?’ in Employment Rights in Britain and Europe, Selected Papers in Labour Law (London, Lawrence and Wishart, 1991) 276 ff Google Scholar.

8 Fahlbeck, R, ‘Industrial relations and collective labour law: characteristics, principles and basic features’ in Wahlgren, P (ed), Stability and Change in Nordic Labour Law (Stockholm, Institute for Scandinavian Law, 2002) especially 119 ff Google Scholar; Edström, Ö, ‘The Free Movement of Services in Conflict with Swedish Industrial Relations Model—or was it the Other Way Around?’ in Wahl, N and Cramér, P (eds), Swedish Studies in European Law (Oxford, Hart, 2006) 129 ff Google Scholar.

9 Bruun, N, ‘Finnish labour law report’ in Dorssemont, F, Jaspers, T and van Hoek, A (eds), Cross-border collective actions in Europe (Antwerpen, Oxford Intersentia, 2007) 105 Google Scholar.

10 Viking Line ABP v International Transport Workers’ Federation [2005] EWCA Civ 1299, [2006] 1 Lloyd’s Rep 303. Useful references to the position taken by the trade unions in the litigation before the ECJ, with ETUC’s support, can be found in B Bercusson, ‘The trade union movement and the European Union: Judgment day’ (2007) ELJ 279 ff.

11 ITWF, Flags of convenience campaign, <http://www.itfglobal.org/flagsconvenience/index.cfm> accessed 27 August 2008. See also G Orlandini, ‘Italian labour law Report’ in Dorssemont et al (eds), above n 9, especially 167 ff, for an overview of Italian case law on ITF collective agreements.

12 See Fitzpatrick, D, ‘Transnational collective action: the FOC campaign case study’ in Dorssemont, et al (eds), above n 9, 88 Google Scholar.

13 Schmidt, F, ‘Ships flying flags of convenience’ (1972) 12 Arkiv for Sjørett (Journal of Maritime Law) 77, 93Google Scholar.

14 Schmidt, ibid, 84–6.

15 Case C-438/05, Opinion of 23 May 2007.

16 Case C-67/96, [1999] ECR I-5751.

17 Viking Opinion, above n 15, para 26. Against this see Novitz, T, ‘Labour rights as human rights: implications for employers’ free movement in an enlarged European Union9 (2006–2007) CYELS 366 Google Scholar. It is the impression of the present writer that Albany portrays a different function of the collective agreement, aimed at setting up a pension fund, pursuing as such a service of general economic interest.

18 Viking Opinion, above n 15, para 28.

19 Ibid, para 32.

20 Ibid, para 59.

21 Lord Wedderburn’s comments, above n 7, on the comparative analysis of the right to strike in West European legal systems are still topical. See also the critical references to the role of the ECJ in Lord Wedderburn, ‘Labour Law 2008: 40 Years on’ (2007) ILJ 397 ff & 417 ff. For references to market freedoms and the right to strike, see also Orlandini, G, Sciopero e servizi pubblici essenziali nel processo d’integrazione europea. Uno studio di diritto comparato e comunitario (Torino, Giappichelli, 2003) especially ch IGoogle Scholar.

22 Case C-112/00, [2003] ECR I-5659.

23 Case C-36/02, [2004] ECR I-9609.

24 Viking, above n 2, para 46.

25 Ibid, paras 61–3. See n 2 above for references to the Monti Regulation.

26 Ibid, paras 78–9.

27 Ibid, para 77.

28 See the significant references in Viking, above n 2, para 77, to Joined Cases C-369 & 376/96, Arblade [1999] ECR I-8453; and Case C-165/98, Mazzoleni [2001] ECR I-2189. See also Sciarra, S, ‘Servizi nel mercato interno europeo e nuove dimensioni della solidarietà’ in Sciarra, S (ed), Solidarietà, mercato e concorrenza nel welfare italiano. Profili di diritto internoe comunitario (Bologna, Il Mulino, 2008) 21 ff Google Scholar.

29 Viking, above n 2, paras 81–3.

30 Ibid, para 86.

31 See also Ewing, K, ‘The implications of Wilson and Palmer ’ (2003) 32 ILJ 1 ff CrossRefGoogle Scholar.

32 Viking, above n 2, para 89.

33 See Bruun, N and Malmberg, J, ‘Finland, National Report’ in Sciarra, S (ed), The Evolution of Labour Law (1992–2003) vol 2 (Luxembourg, OOPEC, 2005) 88 Google Scholar, emphasising the role of conciliation in the Finnish system where strikes do not enjoy much public support.

34 Cooperation agreements aimed at preventing social dumping were reached among Baltic trade unions and neighbouring Nordic countries, especially in the construction industry (EIRR, Aug 2006, 3). A long controversy arose at Irish Ferries about its potential social dumping. This was settled in an agreement reached with the trade unions. References in Novitz, above n 17, 359.

35 See ETUC and CEEP, ‘Joint statement on a European framework for services of general interest’, available at <http://www.etuc.org/IMG/pdf/SGIs_-_06-03-07CEEP-ETUC_March_ 2007_EN1.pdf> accessed 27 August 2008.

36 Viking, above n 2, paras 80 ff.

37 ILO, Maritime Labour Convention, MLC (C186), adopted on 23 February 2006, avail able at <http://www.ilo.org/ilolex/english/convdisp1.htm> accessed 27 August 2008.

38 Communication from the Commission under Art 138(2) of the EC Treaty on the strengthening of maritime labour standards, COM(2006)287 final, 15 June 2006. The Commission consulted the social partners in order to reach a framework agreement for the transposition into European law of some principles enshrined in the ILO Convention. See ‘EU social partners: agreement reached on implementing ILO maritime labour convention’, European Employment Review, 13 December 2007 (no 407). See also positive comments on this original developments by Lillie, N, ‘The ILO Maritime Labour Convention 2006: a New Paradigm for Global Labour Rights Implementation’ in Papadakis, K (ed), Cross-Border Social Dialogue and Agreements: an Emerging Global Industrial Relations Framework (Geneva, ILO, 2008) 191 ff Google Scholar.

39 C Woolfson and J Sommers, ‘Labour mobility in the construction. European implications of the Laval un Partneri dispute with Swedish labour’ (2007) EJIR 49 ff indicate that in 2004 average wages in countries of enlargement were one-quarter of the average wages in the ‘EU-15’ Member States. See also D Vaughan-Whitehead, ‘Work and employment conditions in new EU Member States: a different reality?’ (2007) Industrial Relations in the New Europe 46–7 & 54 on how high unemployment discourages claims for higher wages. See, further, the chapter by Rönnmar in this volume.

40 See Schmidt, above n 7, 122 ff; and more recently, B Nystrom, ‘The evolving structure of collective bargaining in Europe (1990–2004). National Report on Sweden’, available at <http://eprints.unifi.it/archive/00001175/01/Svezia.pdf> accessed 27 August 2008; and Bruun and Malmberg’s chapter on Sweden in S Sciarra (ed), above n 33, 101–3. See also Eklund, R, Sigeman, T and Carlson, L, Swedish Labour and Employment Law: Cases and Materials (Uppsala, Iustus Förlag, 2008) 28 ff Google Scholar.

41 Woolfson and Sommers, above n 39, 54 report that in 2004 in the construction industry 98 decentralised agreements were reached with foreign employers; 21 strikes were called in view of reaching such agreements.

42 Case C-341/05, Laval, judgment of 18 December 2007, para 36.

43 Case C-341/05, Opinion of 23 May 2007, paras 3–6 & 78.

44 Ibid, para 260.

45 Ibid, para 137.

46 See Bruun and Malmberg, above n 40, 101–2 arguing that 90% of workers are covered by collective agreements.

47 See n 5 above.

48 Laval, above n 42, paras 68–76.

49 See Schmidberger and Omega, above nn 22 and 23 respectively, referred to by the Court in Laval, above n 42, paras 93–4.

50 Laval, above n 42, para 85.

51 R Eklund, ‘The Laval case’ (2006) ILJ 202 ff; and Sigeman, T and Inston, R, ‘The Freedom to Provide Services and the Right to Take Industrial Action—An EC Law Dilemma’ (2006) 2 Juridisk Tidskrift 365 ff Google Scholar. The Lex Britannia is recalled in Laval, above n 42, paras 1115–16. Reich, N, ‘Free movement v. social rights in an enlarged Union: the Laval and Viking cases before the European Court of Justice’ (2008) 9 German Law Journal 125, 147, available at <http://www.germanlawjournal.com/pdf/Vol09No02/PDF_Vol_09_No_02_125160_Developments_Reich.pdf> accessed 27 August 2008, maintains that this provision may not be in compliance with European lawGoogle Scholar. See also on this point Edström, above n 8, 139 ff. Compare with Eklund et al, above n 40, 33 ff.

52 Laval, above n 42, para 100.

53 Reich, above n 51, arguing that there should have been an argument for state liability, following Joined Cases C-6 & 9/90, Francovich [1991] ECR I-5357.

54 Case cited above n 2, paras 110 & 57. See also Giubboni, S and Orlandini, G, La libera circolazione dei lavoratori nell’Unione europea. Principi e tendenze (Bologna, Il Mulino, 2007) 105 ff Google Scholar; and Giesen, R, ‘Posting: social protection of workers vs. fundamental freedoms?’ (2003) 40 CML Rev 147 Google Scholar.

55 Laval, above n 42, para 60.

56 Ibid, paras 112–20.

57 Edström, above n 8, 151 ff argues in favour of a compromise, whereby it should be the unions, making recourse to self-regulation, to set limits to industrial actions whenever it may clash with European law and market freedoms. An analogy is drawn with similar selfregulation adopted in the Special Basic Agreement for the public sector. The social partners in Sweden are also discussing a revision of the 1938 Saltsjöbaden agreement, a relevant source in the private sector which contributed to the consolidation of the Swedish model of industrial relations. See, further, the chapter by Rönnmar in this volume.

58 C Joerges and F Rödl, ‘On the “Social Deficit” of the European Integration Project and its Perpetuation through the ECJ Judgments in Viking and Laval’, RECON online WP 2008/6, available at <http://www.reconproject.eu/projectweb/portalproject/RECONWorkingPapers.html> accessed 27 August 2008.

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