International Transport Workers Federation v Viking Line ABP
Encyclopedia
The Rosella or International Transport Workers Federation v Viking Line ABP [2008] IRLR 143 (C-438/05) is an EU law case, relevant to all labour law
within the European Union, including UK labour law, which held that there is a positive right to strike. However, it also held that the right to strike must be exercised proportionately and in particular this right was subject to justification where it could infringe the right to freedom of establishment under the Treaty on the Functioning of the European Union article 49 (ex TEC article 43).
ITWF v Viking Line ABP was shortly followed by another case on freedom to provide services called Laval Un Partneri Ltd v Svenska Byggnadsarbetareforbundet
, and by the influential European Court of Human Rights
decision in Demir and Baykara v Turkey
.
and Finland
. It wanted to operate under the Estonian flag so that it could use Estonian workers on lower wages than the higher Finnish wages for the existing crew. The policy of the International Transport Workers Federation (ITWF) was to oppose such "reflagging" for convenience by companies registering their ship abroad in a low labour cost jurisdiction, when their real seat is in another country. The Finnish Seamen's Union, a member of the ITWF, planned industrial action
. The ITWF told its partners to not negotiate with Viking and hinder its business. Viking Line ABP responded by seeking an injunction
in the English courts, claiming that the industrial action would infringe its right to freedom of establishment under TEC art 43, now TFEU art 49.
The English High Court granted the injunction, but the English Court of Appeal overturned the injunction on the balance of convenience. It held that there were important issues of EU law to be heard, given that, in the words of Waller LJ, it affected the "fundamental rights of workers to take industrial action". So it made a TEC article 234 reference (now article 267) to the European Court of Justice
.
held that, though it was for the national court to ultimately answer the question, it was possible that collective action taken by workers to protect their interests could be unlawful because it infringed the employer's interests under TFEU article 56. It could not be the case, in this situation that the workers interests were sufficiently threatened, because the ECJ felt that the jobs and conditions of the workers' employment were not 'jeopardised or under serious threat'. It was the case that 'the right to take collective action, including the right to strike, must... be recognised as a fundamental right which forms an integral part of the general principles of Community law', but 'the exercise of that right may none the less be subject to certain restrictions... in accordance with Community law and national law and practices.'
EU cases
ECHR cases
Labour law
Labour law is the body of laws, administrative rulings, and precedents which address the legal rights of, and restrictions on, working people and their organizations. As such, it mediates many aspects of the relationship between trade unions, employers and employees...
within the European Union, including UK labour law, which held that there is a positive right to strike. However, it also held that the right to strike must be exercised proportionately and in particular this right was subject to justification where it could infringe the right to freedom of establishment under the Treaty on the Functioning of the European Union article 49 (ex TEC article 43).
ITWF v Viking Line ABP was shortly followed by another case on freedom to provide services called Laval Un Partneri Ltd v Svenska Byggnadsarbetareforbundet
Laval Un Partneri Ltd v Svenska Byggnadsarbetareforbundet
Laval Un Partneri Ltd v Svenska Byggnadsarbetareförbundet [2008] IRLR 160 is an EU law case, relevant to all labour law within the European Union, including UK labour law, which held that there is a positive right to strike...
, and by the influential European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
decision in Demir and Baykara v Turkey
Demir and Baykara v Turkey
Demir and Baykara v Turkey [2008] is a landmark European Court of Human Rights case concerning Article 11 ECHR and the right to engage in collective bargaining...
.
Facts
Viking Line ABP operated a ship called The Rosella between EstoniaEstonia
Estonia , officially the Republic of Estonia , is a state in the Baltic region of Northern Europe. It is bordered to the north by the Gulf of Finland, to the west by the Baltic Sea, to the south by Latvia , and to the east by Lake Peipsi and the Russian Federation . Across the Baltic Sea lies...
and Finland
Finland
Finland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside...
. It wanted to operate under the Estonian flag so that it could use Estonian workers on lower wages than the higher Finnish wages for the existing crew. The policy of the International Transport Workers Federation (ITWF) was to oppose such "reflagging" for convenience by companies registering their ship abroad in a low labour cost jurisdiction, when their real seat is in another country. The Finnish Seamen's Union, a member of the ITWF, planned industrial action
Industrial action
Industrial action or job action refers collectively to any measure taken by trade unions or other organised labour meant to reduce productivity in a workplace. Quite often it is used and interpreted as a euphemism for strike, but the scope is much wider...
. The ITWF told its partners to not negotiate with Viking and hinder its business. Viking Line ABP responded by seeking an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
in the English courts, claiming that the industrial action would infringe its right to freedom of establishment under TEC art 43, now TFEU art 49.
The English High Court granted the injunction, but the English Court of Appeal overturned the injunction on the balance of convenience. It held that there were important issues of EU law to be heard, given that, in the words of Waller LJ, it affected the "fundamental rights of workers to take industrial action". So it made a TEC article 234 reference (now article 267) to the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
.
Judgment
The European Court of JusticeEuropean Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
held that, though it was for the national court to ultimately answer the question, it was possible that collective action taken by workers to protect their interests could be unlawful because it infringed the employer's interests under TFEU article 56. It could not be the case, in this situation that the workers interests were sufficiently threatened, because the ECJ felt that the jobs and conditions of the workers' employment were not 'jeopardised or under serious threat'. It was the case that 'the right to take collective action, including the right to strike, must... be recognised as a fundamental right which forms an integral part of the general principles of Community law', but 'the exercise of that right may none the less be subject to certain restrictions... in accordance with Community law and national law and practices.'
See also
- Secondary actionSecondary actionSecondary action is industrial action by a trade union in support of a strike initiated by workers in another, separate enterprise...
- Regulatory competitionRegulatory competitionRegulatory competition, also called competitive governance or policy competition, is a phenomenon in law, economics and politics concerning the desire of law makers to compete with one another in the kinds of law offered in order to attract businesses or other actors to operate in their jurisdiction...
- UK labour law
- US labour law
EU cases
- Posted Workers DirectivePosted Workers DirectiveThe EU Posted Workers Directive is an EU directive concerned with the free movement of workers within the European Union. It makes an exception to the Convention on the Law Applicable to Contractual Obligations 1980, which ordinarily requires that workers are protected by the law of the member...
- Laval Un Partneri Ltd v Svenska ByggnadsarbetareforbundetLaval Un Partneri Ltd v Svenska ByggnadsarbetareforbundetLaval Un Partneri Ltd v Svenska Byggnadsarbetareförbundet [2008] IRLR 160 is an EU law case, relevant to all labour law within the European Union, including UK labour law, which held that there is a positive right to strike...
[2008] IRLR 160 (C-319/05, on free movement of services
ECHR cases
- Associated Society of Locomotive Engineers and Firemen v United Kingdom [2007] IRLR 361
- Wilson v United Kingdom (2002) 35 EHRR 20
- Demir and Baykara v TurkeyDemir and Baykara v TurkeyDemir and Baykara v Turkey [2008] is a landmark European Court of Human Rights case concerning Article 11 ECHR and the right to engage in collective bargaining...
(2009) 48 EHRR 54