4. Perspectives on the Evolution of European Social Policy

perspectives on the evolutionof european social policy 33The Viking case (Case C-438/05) concerns a worker’s right to take collective industrialaction, specifically if the effect of that action would be to impede the employer’sright to freedom of establishment. The case has its origin in the circumstancessurrounding the initiation of collective action by the Finnish Seamen’s Union,supported by the International Transport Federation, against shipping companyViking Line ABP and OÜ Viking Line Eestia. The dispute arose in 2003 over thecompany’s decision to reflag one of its ships, the Rosella, to an Estonian flag, toenable it to acquire cheaper Estonian labour to work on the ship. The FinnishSeamen’s Union, while accepting that the company had the right to employ theworkers, insisted that these workers must be employed under the terms of theexisting Finnish collective agreement. When the company refused to accept thisposition, the union commenced its collective action and called on trade unionsinternationally to support it. The company consequently brought a legal claimagainst the trade unions, on the basis that industrial action would infringe its rightto freedom of establishment under TEC art. 43.In both cases, the ECJ attempted to strike a balance between the right to takecollective action, including the right to strike, and the freedom to provide services.The court articulated that the EU has not only an economic but also a social purpose,the rights under the provisions of the EC Treaty on the free movement of goods,persons, services and capital must be balanced against the objectives pursued bysocial policy, which include... improved living and working conditions, so as to makepossible their harmonisation (Laval, para. 105)Whilst the Court recognised that the right to take collective action constituted a‘fundamental right’ and could be undertaken ‘for the protection of the workersof the host state against possible social dumping’ (Laval, para. 103), the exerciseof that right was ‘subject to certain restrictions’ (ibid, para. 91), namely that it bejustified according to the principle of proportionality. In the case of Laval, the Courtfound that the blockade was not proportionate since it would have required thecontracting company to adopt provisions which were not sufficiently precise andaccessible to allow the company to determine the obligations with which it wouldhave been required to comply.In the Viking Case, the Court also insisted that the right to take collective actionmust be must be balanced against the rights protected under the EU Treaty.According to the ECJ, the trade unions had considered that it is inherent in thevery exercise of their rights, including the ‘right to take collective action thatthose fundamental freedoms [as set out in the Treaty of the Functioning of theEuropean Union] will be prejudiced to a certain degree’ (para. 52). The Court alsoconsidered that the freedom to provide services would be compromised if theabolition of State barriers could be neutralised by private associations presentingobstacles to this freedom. The Court was in no doubt that the purpose of collectiveaction was to render Viking’s exercise of its right of freedom of establishment ‘lessattractive, or even pointless’ (Viking, para. 72). Again the Court maintained thatthis restriction could be justified by overriding reasons of public interest. But if itwas discovered that the jobs or conditions of employment were not ‘jeopardisedor under serious threat’, then collective action could not be justified since it wouldbe disproportionate to the ends to be achieved. The ECJ determined that it was forthe national courts to assess if this was the case or not and it (the ECJ) wouldprovide guidance.