Luxembourg, 23/05/2007 (Agence Europe) - On 23 May, the European Court of Justice published the conclusions of the advocates general in two cases involving the law on collective union action to protect working conditions in two of the “older” member states of the Union when faced with competition from workers from new member countries. In the two cases, legal opinion deemed that these actions are allowed under European law, subject to certain conditions and close examination by relevant national jurisdiction. This does not, however, resolve the basic issue in this case, which some regard as being a clash between a social Europe on the one hand and an Economic Europe on another.
In the first case (C-341/05), the Swedish subsidiary of the Latvian construction company Laval un Parneri Ltd was prevented from completing a construction contract due to a blockade of its building site organised by the Swedish union Svenska Byggnadsarbetarefôrbundet. This blockade aimed to force Laval to sign the collective agreement in force in this sector in Sweden and ultimately resulted in the bankruptcy of its Swedish subsidiary. (EUROPE 9342) the Arbetsdomstolen (Swedish labour court), which Laval had gone to in its action again the union in question, asked the European Court of Justice about the legality of the collective action at a European level. In his conclusions, the advocate general Paolo Mengozzi explained that Swedish law clearly stipulated that workers' wages were set out by collective agreements and that application of the these agreements is in part ensured by the possible of taking collective action in the event of them not being respected. These actions, therefore constitute a key modality in the transposition into Swedish law of directive 96/71/EC of the Parliament and the Council on the posting of workers and not an infringement of this directive.
The second case (C-438/05) tackles the unsuccessful attempt by the Finnish Viking Lin ferry company to transfer its Rosella ferry from a Finnish flag to an Estonian one. This was done with the goal of replacing Finnish personnel with a less costly Estonian crew. The savings made would have enabled Rossella ferries, then in deficit, to become profitable again against Estonian competition on the ferry routes operated. The union for the Finnish crew, the Finnish Seamen's Union (FSU), however, through the intermediary of the International Transport Workers' Federation (ITF) to which it is affiliated, sent out a leaflet to all its members of the ITF (including the Estonian unions) preventing it from collaborating with Viking, which was ultimately unable to carry out the flag transfer. Viking went to the Court of Appeal in England and Wales to take action against the ITF (whose HQ is in London). The Court of Appeal asked the European Court of Justice if these actions constituted a restriction on the free movement of persons (EUROPE 9340). The Advocate General Poiares Maduro concluded that the actions were allowed, as long as they did not go beyond what was necessary to ensure wages and working conditions; that they did not prevent recruitment of sailors from certain member states and that they did not prevent the free provision of services in one member state to another, once the relocation had been executed.
These conclusions obviously provoked some sharp reactions throughout the political set up. British MEP Richard Ashworth declared in a press release that, “The Court must not allow trade union blockades to dictate the terms of the EU single market”. The president of the Party of European Socialists (PES), Poul Nyrup Rasmussen, found that Mengozzi's conclusion was, “excellent news and offers the chance of a decent deal to women and men who travel to another country for work”. The parties directly affected and perhaps more attentive to legal details were more equivocal. David Cockroft, the ITF Secretary General said that “we got 50 to 60 per cent of what we wanted”. He admitted that there had not been time to examine the conclusions in detail but indicated that despite certain points in favour of the ITF, the Advocate General had failed to close off certain loop holes which still left the multinationals the chance of playing “hopscotch” between different national regulation, which shipbuilders and other companies could use to their advantage to the detriment of workers' conditions.
It is noticeable that in both cases the motivation and the real effect of the action decides their legality in European law. Legally speaking, it is not the case that the social principle should prevail over the economic per se or vice versa. If the Court follows the conclusions of the Advocates General, which is what happens in almost two thirds of cases, it will be up to the court of referral to examine these cases in politically neutral terms. It is exactly this objective of the Advocates General, confronted with significant social and political implications in the cases in point, that will undoubtedly continue to be target for criticism. (cd)