''The Rosella'' or ''International Transport Workers Federation v Viking Line ABP'' (2007
C-438/05
is an EU law case, relevant to all

labour law Labour laws (also known as labor laws or employment laws) are those that mediate the relationship between workers, employing entities, trade unions, and the government. Collective labour law relates to the tripartite relationship between employee, ...

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 could infringe a business's freedom of establishment under the Treaty on the Functioning of the European Union article 49 (ex Article 43

TEC TEC may refer to: Education * Technology, the subject itself of technology taught at schools * Tertiary Education Commission (disambiguation) *''The East Carolinian'', a campus newspaper of East Carolina University Governmental and public organiz ...

). The decision has been criticised for the Court's inarticulate line of reasoning, and its disregard of fundamental human rights. ''The Rosella'' was shortly followed by a case on freedom to provide services called ''

Laval Un Partneri Ltd v Svenska Byggnadsarbetareforbundet Laval means ''The Valley'' in old French and is the name of: People * House of Laval, a French noble family originating from the town of Laval, Mayenne * Laval (surname) Places Belgium * Laval, a village in the municipality of Sainte-Ode, Luxemb ...

'', and by the influential European Court of Human Rights decision in ''

Demir and Baykara v Turkey ''Demir and Baykara v Turkey'' 008ECHR 1345is a landmark European Court of Human Rights case concerning Article 11 ECHR and the right to engage in collective bargaining. It affirmed the fundamental right of workers to engage in collective bargain ...

''.

Facts

Viking Line ABP operated a ship called ''The Rosella'' between Estonia and Finland. It wanted to operate under the

Estonian flag The flag of Estonia ( et, Eesti lipp) is a tricolour featuring three equal horizontal bands of blue (top), black (middle), and white (bottom). In Estonian it is colloquially called the (). The tricolour was already in wide use as the symbol of ...

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 The International Transport Workers' Federation (ITF) is a democratic global union federation of transport workers' trade unions, founded in 1896. In 2017 the ITF had 677 member organizations in 149 countries, representing a combined membership o ...

(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 The Finnish Seafarers' Union (FSU, formerly known as Finnish Seamen's Union; fi, Suomen Merimies-Unioni, SMU) is a trade union representing maritime and inland waterway transport workers in Finland. The Helsinki Seamen's and Firemen's Union was ...

, a member of the ITWF, planned

industrial action Industrial action (British English) or job action (American English) is a temporary show of dissatisfaction by employees—especially a strike action, strike or slowdown or working to rule—to protest against bad working conditions or low pay a ...

. The ITWF told its partners to not negotiate with Viking and hinder its business. Viking Line ABP responded by seeking an

injunction An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in pa ...

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 High Court of Justice granted the injunction, but the Court of Appeal of England and Wales overturned the injunction on the

balance of convenience Balance or balancing may refer to: Common meanings * Balance (ability) in biomechanics * Balance (accounting) * Balance or weighing scale * Balance as in equality or equilibrium Arts and entertainment Film * ''Balance'' (1983 film), a Bulgari ...

. 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 The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Un ...

Judgment

The

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 nonetheless be subject to certain restrictions... in accordance with Community law and national law and practices.'

Significance

The judgment of the European Court of Justice was met with widespread condemnation by labour law experts on the basis that it failed to give due regard for the respect of human rights and places business freedom above the interests of working people. It was one of the triggers for the UK's

2009 Lindsey Oil Refinery strikes The 2009 Lindsey Oil Refinery strikes were a series of wildcat strikes that affected the energy industry in the United Kingdom in 2009. The action involved workers at around a dozen energy sites across the UK who walked out in support of other ...

. The

ILO The International Labour Organization (ILO) is a United Nations agency whose mandate is to advance social and economic justice by setting international labour standards. Founded in October 1919 under the League of Nations, it is the first and ol ...

's Committee of Experts found severe breaches of the

ILO Convention 87 The Freedom of Association and Protection of the Right to Organise Convention (1948No 87is an International Labour Organization Convention, and one of eight conventions that form the core of international labour law, as interpreted by the Declar ...

on the freedom of association and protection of the right to organise. Thus it is generally viewed as being characterised by poor quality reasoning and is regarded by most commentaries as wrong.See

P Craig Paul Philip Craig, (born 27 September 1951) is a British legal scholar, specialising in administrative and European Union law. He was Professor of English Law at the University of Oxford from 1998 to 2019, and is now emeritus professor. Educa ...

and G de Burca (2015) 819, fn 147, 92 case notes written so far.

Notes

References

*C Barnard, 'Social Dumping or Dumping Socialism?' (2008) 67 CLJ 262 *C Barnard, 'The UK and Posted Workers: The Effect of Commission v Luxembourg on the Territorial Application of British Labour Law' (2009) 38 ILJ 122 *A Dashwood, 'Viking and Laval: Issues of Horizontal Direct Effect' (2008) 10 Cambridge Yearbook of European Legal Studies 525 *S Deakin, 'Regulatory Competition after Laval' (2008

*E McGaughey, ''A Casebook on Labour Law'' (Hart 2018) ch 10, 439 {{DEFAULTSORT:International Transport Workers Federation V Viking Line Abp United Kingdom labour case law Court of Justice of the European Union case law 2007 in case law International Transport Workers' Federation United Kingdom strike case law 2007 in British law European Union labour case law 2007 in labor relations Viking

Facts

Judgment

Significance

See also

Notes

References