European Court of Justice: right to strike is fundamental under Community law

In a groundbreaking ruling the European Court of Justice - ECJ has confirmed that the rights of the trade union movement to collective bargaining and strike action are a fundamental element of European Community law. The ruling in a case concerning the Viking Line vessel Rosella recognises the right of trade unions to take industrial action in defence of the interests of employees, even when such action curtails the freedom of establishment of business enterprises. However, such union measures must not be disproportionate, and must be undertaken solely in order to protect employees.

"One important feature of this ruling is that it specifically states that the Community is not merely an economic entity, but also seeks to promote social objectives. Freedom of movement may be restricted if it has an undesirable impact on the interests of employees," observes Jorma Rusanen, Director of FinUnions, the Finnish trade union mission to the European Union (formerly KEY Finland).

The preliminary ruling issued on Tuesday 11 December only concerns the principle of freedom of establishment under the EC Treaty. This principle allows individuals and businesses to engage in economic activities throughout the European Union. Next week the ECJ is due to consider the Swedish Laval/Vaxholm case, in which the Court will express its position on how the principles formulated in this latest ruling affect a corresponding EC Treaty freedom to provide services.

In its ruling the ECJ finds that restrictions on freedom of business establishment are permissible if they seek a legitimate objective and are justified by an overriding reason of public interest. The court also finds that industrial action seeking to defend the interests of employees constitutes a legitimate objective of this kind.

Situations involving protection of employees arise, for example, when jobs or terms of service are threatened. The ECJ notes that it is up to the national court to decide whether industrial action seeks to protect employees in a particular case. One special feature of the Rosella case, however, is that the venue for further consideration of the matter is the Court of Appeal in London, and not the Finnish judiciary.

Background to the Rosella case

The Rosella affair began some years ago when Viking Line announced a plan to outflag the Finnish vessel Rosella to Estonia, and to replace its Finnish crew with Estonian seafarers. The Finnish Seamen's Union then insisted that the shipping line should conclude a collective agreement ensuring continued application of the previous terms and conditions of service of crewmembers. The Seamen's Union issued a strike warning when negotiations on this matter broke down. A new crew agreement was subsequently concluded on the basis of a proposal from Finland&#;8217s National Conciliator.

In 2004, following this accord, Viking Line initiated legal proceedings at the Commercial Court in London. This choice of legal venue was possible because the International Transport Workers' Federation - ITF was also a party to the case. The ITF had supported the bargaining rights of the Finnish Seamen's Union by sending a circular to its affiliated trade unions.

Viking Line sought an injunction banning any industrial action by the Finnish Seamen's Union and any sympathetic measures by the ITF seeking to prevent Viking Line from outflagging its vessel, or to ensure that a Finnish collective agreement would thereafter be applied aboard the Rosella. Viking Line argued that such industrial action, though lawful in Finland, was contrary to Community law.

In June 2005 the Commercial Court in London allowed the claims of Viking Line and issued the requested injunction against trade union action. It was this judgement that the Finnish Seamen's Union contested at the Court of Appeal in London, which quashed the injunction in November 2005 and referred the Community law aspects of the case to the European Court of Justice for a preliminary ruling.