''The Rosella'' or ''International Transport Workers Federation v Viking Line ABP'' (2007
C-438/05
is an

EU law European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its val ...

case, relevant to all labour law within the European Union, including

UK labour law United Kingdom labour law regulates the relations between workers, employers and trade unions. People at work in the UK can rely upon a minimum charter of employment rights, which are found in Acts of Parliament, Regulations, common law and equit ...

, which held that there is a positive

right to strike Strike action, also called labor strike, labour strike, or simply strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strikes became common during the In ...

. 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 The Treaty on the Functioning of the European Union (TFEU) is one of two treaties forming the constitutional basis of the European Union (EU), the other being the Treaty on European Union (TEU). It was previously known as the Treaty Establishi ...

article 49 (ex Article 43 TEC). 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'', and by the influential

European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...

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 Estonia, formally the Republic of Estonia, is a country by the Baltic Sea in Northern Europe. It is bordered to the north by the Gulf of Finland across from Finland, to the west by the sea across from Sweden, to the south by Latvia, a ...

and

Finland Finland ( fi, Suomi ; sv, Finland ), officially the Republic of Finland (; ), is a Nordic country in Northern Europe. It shares land borders with Sweden to the northwest, Norway to the north, and Russia to the east, with the Gulf of B ...

. 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. 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

High Court of Justice The High Court of Justice in London, known properly as His Majesty's High Court of Justice in England, together with the Court of Appeal and the Crown Court, are the Senior Courts of England and Wales. Its name is abbreviated as EWHC (Englan ...

granted the injunction, but the

Court of Appeal of England and Wales The Court of Appeal (formally "His Majesty's Court of Appeal in England", commonly cited as "CA", "EWCA" or "CoA") is the highest court within the Senior Courts of England and Wales, and second in the legal system of England and Wales only to ...

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.

Judgment

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 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 ILO's Committee of Experts found severe breaches of the ILO Convention 87 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 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 Vikings ; non, víkingr is the modern name given to seafaring people originally from Scandinavia (present-day Denmark, Norway and Sweden), who from the late 8th to the late 11th centuries raided, pirated, traded and se ...

Facts

Judgment

Significance

See also

Notes

References