Landmark case highlights issue of conflicting rights

Free movement of organisations is a fundamental principle of the European Union. A case currently before the European Court of Justice addresses the relationship between the rights of organisations to free movement and the rights of workers to take collective action – an issue on which the social partners take differing positions.


Following Estonia’s accession to the EU, a Finnish shipping company, Viking Line, operating a passenger and cargo ferry between Helsinki and Tallinn, decided that, in the interests of its own competitiveness, it would operate out of Estonia; thus, it sought to re-flag its ships as Estonian ships. In response, the Finnish Seamen’s Union (FSU) objected to the proposal, fearing that it would lead to a worsening of crews’ pay and working conditions. It called for a union blockade of Viking Line, at the same time obtaining the support of the International Transport Workers’ Federation (ITF). The FSU based its right to take collective action on the fact that such a move was a guaranteed constitutional right under Finnish law. However, Viking Line challenged the legality of this action, and has brought a case against both the ITF and the FSU, choosing to take its proceedings to the United Kingdom (UK), where the ITF headquarters are based.

UK court ruling

The UK High Court ruled in favour of Viking Line. In its decision, it concluded that the company’s right to freedom of movement overrides the existing rights of workers to take collective action, even where these are guaranteed under the country’s constitution. In response, the unions appealed the decision in the UK Court of Appeal (Viking Line ABP v ITWF [2006] IRLR 58), which in turn referred the case to the European Court of Justice (ECJ), as it raised principles and questions involving European law (Case C-438/05 Viking Line Abp OU Viking Line Eesti v the International Transport Workers’ Federation, the Finnish Seamen’s Union).

Fundamental rights

This case is perceived as a landmark case as it concerns the resolution of fundamental rights, whereby the exercising of one right threatens to negate the rights of another. Both sides, the trade unions and Viking Line, have based their claim on their interpretations of the different Titles of the European Commission (EC) Treaty. Thus, the background to the case, together with the outcome reached, will have important repercussions in understanding how EC/EU law should deal with competing fundamental rights. The rights in question are the:

  • right to freedom of movement – as protected under Article 43 and Article 49 of the EC Treaty, which guarantee freedom of establishment and freedom to provide services;
  • rights of workers – as protected under Article 28 of the Charter of Fundamental Rights, which guarantees the rights of workers or organisations ‘to take collective action to defend their interests, including strike action’.

The basis of the legal claim made by Viking Line is that the right to freedom of movement cannot be constrained, nor should it be subject to any overriding right to take collective action.

Wider relevance of case

The European Trade Union Confederation (ETUC) believes that the outcome of the Viking case ‘will have a landmark impact on workers’ rights and trade unions’ ability to negotiate effectively for the protection of workers and to defend social rights’, highlighting that it will have consequences throughout Europe and far beyond the maritime industry (see press statement, 20 April 2006).

It is anticipated that the ECJ is likely to hear the claim before the end of 2006, with a ruling expected in early 2007. The outcome could have far-reaching consequences, with Swedish unions even threatening that Sweden could leave the EU if the Laval case (Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet, Svenska Byggnadsarbetareforbundet, Avdelning 1, Svenska Elektrikerforbundet), which will be heard at the same time, ends in a ruling against the right to take collective action.

Possible scenarios

There are a number of possible scenarios. The ECJ could decide that the right to collective action is outside of EU law and that, as a consequence, it does not have the power to restrict such action. However, it could equally decide that, regarding issues over conflicting fundamental rights, either one right must override the other, or one right can only be exercised as long as it does not negate the other.

Sonia McKay, AWWW GmbH ArbeitsWelt

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