The Trade Union Movement and the European Union: Judgment Day

AuthorBrian Bercusson
Date01 May 2007
DOIhttp://doi.org/10.1111/j.1468-0386.2007.00374.x
Published date01 May 2007
The Trade Union Movement and the
European Union: Judgment Day
Brian Bercusson*
Abstract: The trade union movement faces a challenge to the legality of transnational
collective action as violating economic freedoms in the EC Treaty. How are disparities in
wages and working conditions among the Member States to be accommodated? Are
national social models protected? Does the internal market allow for trade union collective
action? How does EU law affect the balance of economic power in a transnational
economy? What is the role of courts in resolving economic conf‌licts? This article analyses
the responses to these questions as referred to the European Court of Justice by the
English Court of Appeal and offers some conclusions. The purpose is to highlight the
different positions adopted by the old Member States and the new accession Member
States as regards the underlying substantive issues, and the options available to the Court
of Justice in answering the questions posed.
I Introduction
Themes lurking below the surface of the internal market have broken into the light.
Coincidentally, the legislative1and judicial2processes were simultaneously confronted
* Professor of European Social and Labour Law, King’s College London. I owe much of what follows
to discussions during 2004–2006 in the Task Force, led by Catelene Passchier, Confederal Secretary,
established by the European Trade Union Confederation to coordinate the legal teams in the Viking and
Laval cases, in the legal team of the International Transport Workers’ Federation, headed by Deirdre
Fitzpatrick, Legal Off‌icer, and in the European Trade Union Institute’s (ETUI) Research Group on
Transnational Trade Union Rights, which I coordinate (Thomas Blanke (Oldenburg), Niklas Bruun
(Helsinki), Filip Dorssemont (Utrecht), Antoine Jacobs (Tilburg), Yota Kravaritou (Thessaloniki), Klaus
Lörcher (Berlin), Isabelle Schömann (ETUI), Bruno Veneziani (Bari) and Christophe Vigneau (Paris)). I
am solely responsible, as usual, for any errors.
1Proposal for a Directive on Services in the Internal Market, COM (2004) 2/3 f‌inal, adopted 13 January
2004. Now Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006
on services in the internal market [2006] OJ L376/26.
2Case C-438/05 Viking Line Abp OU Viking Line Eesti v The International Transport Workers’ Federation,
The Finnish Seamen’s Union; Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet,
Svenska Byggnadsarbetareforbundet, Avdelning 1, Svenska Elektrikerforbundet. This article focuses on the
Viking case. For discussion of the Laval case, see K. Ahlberg, N. Bruun and J. Malmberg, ‘The Vaxholm
Case from a Swedish and European Perspective’, (2006) 12(2) Transfer: European Review of Labour and
Research 155. For an earlier commentary on Viking, see T. Blanke, ‘The Viking Case’, (2006) 12(2)
Transfer: European Review of Labour and Research 251.
European Law Journal, Vol. 13, No. 3, May 2007, pp. 279–308.
© 2007 The Author
Journal compilation © 2007 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
with the same issues. The legislative process is now complete. The result of the judicial
process is imminent.3
The nature of the EU has sometimes been def‌ined in terms of a ‘European social
model’.4An implicit premise has been that the autonomous trade union movement is
the backbone that supports the European social model.5The EU social model’s indus-
trial relations system was at the heart of these legislative and judicial processes. Judicial
responses could precipitate a crisis for the European social model and for the EU,6but
also could be a harbinger of a constitution responding directly to the social demands of
the peoples of the EU, not only indirectly through the economic exigencies of the
market.
The focus here is on the litigation. But there are valuable lessons to be learned from
the parallel legislative process concerning the Services Directive. The central questions
of substance can be formulated as follows:
1. ‘Social dumping’: how are disparities in wages and working conditions among
the Member States of the EU, exacerbated by the accession of new Member
States, to be accommodated in EU law?
2. Subsidiarity: are national social models and industrial relations systems to be
protected?
3. Trade unions: are the Treaty’s provisions on the internal market to be inter-
preted so as to allow for the activities of trade unions?
4. Economic power: how does EU law affect the balance of economic power in an
integrated transnational economy?
5. The courts: what is the role of courts in resolving disputes involving economic
conf‌licts?
The substance of these issues was translated tortuously into ten questions of law put to
the European Court of Justice (ECJ) by the English Court of Appeal.
In the Viking case, there were written and oral submissions to the ECJ by
14 Member States and Norway, as well as the parties and the Commission. In a
signif‌icant innovation, for the f‌irst time in its history, the European Trade Union
Confederation (ETUC) intervened by submitting a letter attached to the written sub-
mission of the International Transport Workers’ Federation (ITF).7The submissions
addressed some or all of the questions posed by the English Court of Appeal,
3Written submissions in the two cases were made in 2006; oral submissions were made at the hearings in
Luxembourg on 9 and 10 January 2007.
4B. Bercusson, ‘The Institutional Architecture of the European Social Model’, in T. Tridimas and
P. Nebbia (eds), European Union Law for the Twenty-First Century: Rethinking the New Legal Order,
Vol. 2 (Hart Publishing, 2004), pp. 311–331.
5B. Bercusson and N. Bruun, European Industrial Relations Dictionary (European Foundation for the
Improvement of Living and Working Conditions, Off‌ice for Off‌icial Publications of the European
Communities, 2005), ‘Overview’ (55 pp.), especially 4-11 and CD-ROM.
6The Deputy General Secretary of the Swedish trade union confederation, LO, Erland Olausson, warned
that a negative outcome in the Laval case could result in Sweden leaving the EU.
7The ETUC is recognised by the EU, by the Council of Europe and by the European Free Trade Area
as the only representative cross-sectoral trade union organisation at European level. The ETUC, estab-
lished in 1973, presently has in its membership 78 national trade union confederations from a total of
34 European countries, as well as 11 European industry federations, making a total of 60 million
members.
European Law Journal Volume 13
© 2007 The Author
280 Journal compilation © 2007 Blackwell Publishing Ltd.

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