THE NEW SPECTRE HAUNTING EUROPE – THE ECJ, TRADE UNION RIGHTS, AND THE BRITISH GOVERNMENT EDITED K D EWING AND JOHN HENDY QC
This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the authors. The responsibility of the institute is limited to approving its publications as worthy of consideration within the labour movement. This publication is dedicated as a small mark of our enormous debt to our great friend Brian Bercusson. Brian, who died suddenly on 17 August 2008, was a champion of trade union rights, and a colleague with great spirit and knowledge. His contribution to the current debate about the future direction of European labour law is sorely missed.
ISBN 978 1 906703042 May 2009 published by the Institute of Employment Rights The People’s Centre, 50-54 Mount Pleasant, Liverpool, L3 5SD e-mail office@ier.org.uk www.ier.org.uk print and layout by Upstream (TU) 020 7207 1560 cover pic: Andrew Yates/AFP/Getty Images/Guardian News & Media Ltd 2009. The recent dispute at East Lindsey Oil Refinery. £8 for trade unions and students £30 others
The New Spectre Haunting Europe – the ECJ, Trade Union Rights, and the British Government edited by K D Ewing and John Hendy QC
contents
chapter 1: introduction K D Ewing and Carolyn Jones
1
Part One: four decisions of the European Court of Justice chapter 2: the Viking judgment: conflict between economic and social rights Deirdre Fitzpatrick introduction the transnational nature of the dispute the response of the courts practical consequences: balancing collective action and economic freedoms conclusion
the new spectre haunting Europe
chapter 3: Viking and Laval: a Single Market perspective Catherine Barnard
ii
introduction the issues raised by the judgments does Community law apply at all? does Community law apply to trade unions? did the industrial action breach the Treaty? justification and proportionality conclusion
8 8 9 10 13 17
19 19 20 21 22 24 29 34
chapter 4: Rüffert and Luxembourg: the Posted Workers’ Directive and ILO Convention 94 Richard Arthur Rüffert and the problem of collective agreements Luxembourg and the question of public policy implications of the decisions ILO Convention 94 conclusion
36 37 39 43 45 47
Part Two: responses to the European Court of Justice
introduction Danish and Swedish responses to Laval
50 50 51
the Swedish options explored the preferred option
51 53
the Viking case and Finnish law
55
the undertaking by Viking collective agreements in Finland
the implications of Viking for Finnish law the status and enforceability of the undertaking by Viking nature of the guarantee and the ultima ratio principle
conclusion
56 57
60 61 63
65
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chapter 5: Viking and Laval: Nordic responses and reflections Niklas Bruun
iii
chapter 6: the ECJ decisions and trade union freedom: lessons from the United Kingdom 68 K D Ewing and John Hendy QC introduction the BALPA case the legal proceedings procedural burdens and unlimited damages
the East Lindsey dispute the British regulatory gap impact of the regulatory gap
the need for a political response reforming the law on industrial action extending collective agreements
conclusion
chapter 7: the legal accountability of the ECJ: the ILO, the Social Charter and the ECHR K D Ewing and John Hendy QC introduction the International Labour Organisation freedom of association and the right to strike freedom of association and the ECJ
the European Social Charter the ESC and the right to strike collective complaints
the European Convention on Human Rights the evolution of Article 11 implications of Demir and Baykara for the right to strike
conclusion
68 69 69 70
72 73 76
78 79 80
82
84 84 85 85 87
88 89 90
91 93 95
97
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Part Three: conclusion
iv
chapter 8: conclusion K D Ewing and John Hendy QC
100
introduction EC law – options for reform resistance from Blair and Brown unblocking the political process conclusion
100 101 102 104 106
appendices ETUC proposal for a “Social Progress” Protocol the contributors
107 108 109
chapter 1 introduction K D Ewing and Carolyn Jones
1
2 3
Case C–438/05, Viking Line ABP v The International Transport Workers’ Federation, the Finnish Seaman’s Union, Judgment of 11 Dec 2007 [2008] IRLR 14 (hereinafter in this book ‘Viking’); preceded by judgments in the High Court, [2005] EWHC 1222, [2005] 3 CMLR 29 (QB) and Court of Appeal, [2005] EWCA Civ 1299, [2006] IRLR 58. Case C–341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Judgment of 18 Dec 2007 [2008] IRLR 160 (hereinafter in this book ‘Laval’). See Case C–346/06, Dirk Rüffert v Land Niedersachsen, Judgment of 3 Apr 2008 [2008] IRLR 467 (hereinafter in this book ‘Rüffert’), and Case C-319/06, European Commission v Luxembourg, Judgment of 19 June 2008 [2009] IRLR 388 (hereinafter in this book ‘Luxembourg’).
the new spectre haunting Europe
On 11 December 2007, the European Court of Justice delivered a crushing blow to trade unions when in the Viking case it held that the right of businesses to freedom of establishment (under article 43 of the EC Treaty) must take priority over the right of trade unions to take industrial action to safeguard the interests of their members.1 One week later trade unions were delivered another devastating blow by the European Court of Justice in the Laval case in which the Court held that trade unions could not take industrial action to compel a Latvian builder operating in Stockholm to observe the terms and conditions of collective agreements operating in Sweden.2 These cases were followed in quick succession by two others, the so called Rüffert and Luxembourg cases,3 which pick up one of the central issues in the Laval case, namely the terms and conditions of employment that must be observed by workers posted by their employer in one Member State to work for a short period in another Member State.
1
WHAT IS THE INSTITUTE? The Institute of Employment Rights was launched on 28th February 1989 and was granted charitable status in 1994. As a labour law “think tank”, supported by the trade union movement, our purpose is to provide research, ideas and detailed argument on all aspects of employment law. As a charity, however, we are not a campaigning organisation. The Institute has attracted wide and distinguished support creating a unique network of lawyers, academics and trade unionists. Among the membership are John Hendy QC, Professor Keith Ewing, Professor Aileen McColgan, Jim Mortimer, Tess Gill and the general secretaries of Britain’s largest trade unions. The results of our work are published in papers and booklets. We also provide short articles, free of legal jargon, for trade union journals and other publications. Dissemination of our ideas is increasingly achieved through seminars and conferences as well as our educational courses. The Institute does not assume that legal measures can offer ultimate solutions for political, economic and social problems. However, we recognise that law has a part to play in influencing the employment relationship, both individually and collectively. Our funding is from various sources, including subscriptions, which entitle subscribers to a copy of all our new publications and reductions in conference fees. If you are interested in subscribing or would like to know more about the Institute, then contact us at The People’s Centre, 50-54 Mount Pleasant,Liverpool, L3 5SD or email us at office@ier.org.uk. Or visit our website at www. ier.org.uk
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