The European Court of Justice has ruled that a trade union campaign to stop a Latvian firm paying poverty wages in the Swedish town of Vaxholm is in breach of EU rules.Last week the same court ruled in a similar long-running case that an international trade union campaign against "flag of convenience" shipping was also in breach of EU rules.This case involved Finnish ferry company Viking Line, which attempted to reflag one of its ships to new EU member state Estonia in 2003 and replace Finnish seafarers with cheaper Estonian labour.
Protesting against this clear social dumping, the UK-based International Transport Workers Federation instructed its affiliates not to negotiate with the Finnish ferry line. Viking then began legal proceedings against the ITF and the European Court of Justice has sat on the case for over three years. The ECJ has now declared that EU rules on free movement of goods, services, capital and labour gives private firms protection against trade unions in the interests of "freedom of establishment". However, the ECJ also solemnly declares that the right to take industrial action is a “fundamental right”.
The European Commission similarly claimed the Viking judgment was "balanced" and had laid down specific principles, including that "collective action can in principle restrict the freedom of establishment, a cornerstone of the EU's internal market". But, on the other hand, any industrial action must be for reasons of "over-riding public interest" as well as being "suitable and proportionate".So what fundamental rights do trade unionists have then?
Leading trade union solicitors Thompsons has said that the Viking ruling meant that the right to take industrial action is not given superior protected status as a fundamental right by the ECJ. A clue to this is the fact the commission declares the ‘freedom of establishment’ is ‘a cornerstone of the EU's internal market’, but the right to take collective action does not get the same sanctity.
In an earlier judgment the court itself also ruled: “it is well established in the case law of the Court that restrictions may be imposed on the exercise of fundamental rights, in particular in the context of a common organisation of the market” (Kjell Karlson and others case C292/97 par 45). So, according to the ECJ, human rights such as trade union rights are to be subsumed by what is good for the ‘market’.
Paragraph 44 of the Viking judgment similarly assumes that exercising the right to strike action is ‘subject to certain restrictions’, where the strike is ‘prohibited under national law or European Community law’ or ‘contra bonos mores’. To those plebeians out there who don’t converse with each other in Latin, this means ‘contrary to good morals’.
So, just to recap, trade unionists do have the right to strike action unless, of course, it is illegal under any domestic or EU law, effects the ‘operation of the market’ or if a bishop or equally holy man believes it to be ‘immoral’. There are, of course, other EU restrictions on trade union rights that have to be solemnly pondered over by lawyers and judges at huge expensive to the taxpayer.
Article 28 of the Charter of Fundamental Rights, appended to the renamed EU constitution, states that workers may ‘take collective action to defend their interests, including strike action’. But an Explanation in Declaration 12 also qualifies this by stating that ‘The limits for the exercise of collective action, including strike action, come under national laws and practices’ ie Britain ’s Tory anti-union legislation.
Moreover, the entire Charter can be suspended at any time to protect the ‘general interests’ of the EU or, of course, if it interferes with ‘the smooth operation of the market’. This means that draconian labour legislation already existing in a member state can be preserved while, on the other hand, Brussels can limit trade union rights in order to satisfy ‘objectives of general interest’ of the EU.
The renamed EU Constitution provides that the Charter of Fundamental Rights would be made binding in EU law and become superior to national law in the event of any conflict. However, ‘fundamental rights’ that can be removed on a whim in the interests of the ‘market’ and in the ‘general interest’ of EU institutions do not seem that ‘fundamental’ at all.
Add to this the fact that the European Court of Justice is itself an EU institution committed to its neo-liberal rules, then the scales of justice in Luxembourg seem to be leaning heavily on the side of corporate power. It is no accident that both the Viking and Vaxholm cases attack trade union collective bargaining rights in Scandinavian countries, where they are enshrined in law and the constitution.
This is the social model which is most at odds with the EU where the ‘smooth operation of the market’ is the overriding priority. In the mean time EU leaders have just signed the renamed EU constitution, which would massively extend the powers of the European Court of Justice. This privateer’s charter must now be ratified by all 27 member states.
However, PM Gordon Brown is refusing to honour a 2005 election manifesto pledge to hold a referendum on the issue. Readers should write to their MPs and ask them to honour the referendum pledge they made at the election and ask them to sign the early day motion below. Trade unionists should also be asking why isn’t the TUC forcefully demanding such a referendum which Congress delegates overwhelmingly called for in September.
Brian Denny