The judgement handed down by the EU Court of Justice on 11 December is the first in a series of rulings on trade union action. The verdict in the next case (Vaxholm vs Laval un partneri, Sweden, 18 December) should therefore be awaited before any conclusions are drawn. Backing in part its advocate-general, the Court of Justice ruled that "collective action seeking to induce a foreign undertaking to conclude a collective labour agreement with a trade union and liable to deter it from exercising its freedom of establishment is a restriction on that freedom". Such restrictions may only be "justified on the basis of protection of workers," provided it is established that it is "suitable for ensuring the achievement of the legitimate objective pursued and does not go beyond what is necessary to attain that objective" (judgement of 11 December 2007, ITF and FSU vs Viking Line, C-438/05).


The dispute dates back to October 2003. The Finnish company Viking Line, which operates routes between Estonia and Finland, informed the Finnish Seamen's Union (FSU) that it intended to reflag its ferry, the Rosella, which was running at a loss, by registering it in Estonia, where it had a subsidiary. The objective was clear: to be able to employ an Estonian crew, at a lower rate of pay than what Finnish seamen earned, and to be able to compete with other ferries on the same route. Reacting to the notification, the International Transport Workers' Federation (ITF) sent a circular to all its affiliates, requiring them to refrain from entering into negotiations with Viking Line, with the threat of sanctions. The Estonian trade unions belonging to ITF complied, refusing to negotiate with Viking. In parallel, FSU began talks with the owner and announced its intention to strike, requiring a commitment by the owner to continue to comply with Finnish labour law and not to lay off crew if the vessel was reflagged. Viking Line, which was determined to register the vessel in Estonia, referred the matter in August 2004 to the judiciary in Britain (where ITF has its seat). It asked the court to order ITF to withdraw the circular and to prevent FSU from infringing its right of establishment with regard to the reflagging of the Rosella.


The Court's first conclusion was that it had jurisdiction (the right to strike and freedom of association are excluded from EC Treaty social harmonisation measures). It explained...

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