(8) CASES ON FREE MOVEMENT OF SERVICES.docx

(8) CASES ON FREE MOVEMENT OF SERVICES.docx - CASES ON FREE...

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CASES ON FREE MOVEMENT OF SERVICES AND LABOR LAW (LECTURE 8) 1
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VIKING CASE FACTS Viking (a Finnish passenger ferry operator) owned a ship called the Rosella which operated under a Finnish flag on the route between Estonia and Finland. As it was making a loss, the company decided to re-flag the ship to operate under a “flag of convenience” in Estonia or Norway in order to avoid collective agreements with Finnish trade unions and cut jobs and terms and conditions. Following a request from the Finnish Seamen’s Union (FSU), the International Transport Workers’ Federation issued an instruction to affiliates to boycott Viking’s activities. In practice, this was designed to ensure that the relevant Estonian union would refuse to form a new collective agreement with Viking as part of their attempt to reflag the ship. The FSU also called for strike action by its own members. Viking brought a lawsuit to the Court, arguing that its right to freedom of establishment under EC law was violated by the industrial action under article 43 of the EC Treaty (see below for more details), and their right to provide services under article 49 (see below for more details). The unions argued that they had a fundamental right to take action to preserve jobs recognized by Title XI of the EC Treaty and article 136. QUESTIONS (1) Whether Art. 43 must be interpreted as meaning that collective action initiated by a Trade union or a group of Trade unions against an undertaking in order to induce that undertaking to enter into a collective agreement, the terms of which are liable to deter it from exercising freedom of establishment, falls outside the scope of that Article (2) Whether or not the actions taken by the ITF and the FSU were restrictive and whether there was any justification for them. REASONING For question (1) o The Court pointed out first of all that the provisions on the fundamental freedoms within the internal market do not apply only to the actions of public authorities but also to rules that aimed at regulating employment and the provision of services. Since working conditions in the different Member States are governed sometimes by provisions laid down by law or regulation and sometimes by collective agreements and other acts concluded or adopted by private persons, and in order to avoid creating inequalities, collective action initiated by a trade 2
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union or a group of trade unions which seeks to induce an undertaking to enter into a collective agreement falls, in principle, within the scope of Article 43 EC. (It is considered as a restriction to free establishment) The right to take collective action, including the right to strike , constitutes a fundamental right which forms an integral part of the general principles of Community law. That right must, however, be go in line with the fundamental freedoms within the internal market, such that exercise of that right may be subject to certain restrictions , in accordance with the principle of proportionality .
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  • Fall '17
  • F.H.R. Hendrickx
  • Law, Labor Law, Trade union, The Court, collective agreement, industrial action

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