Bulletin of Comparative Labour Relations - 69
The Laval and Viking Cases
Freedom of Services & Establishment and Industrial Conflict in the European Union
Editor: Roger Blanpain
Guest Editor: Andrzej M. Świątkowski
Contributors:
Nikitas Aliprantis
Roger Blanpain
Niklas Bruun
Stein Evju
Elias Felten
Konrad Grillberger
Patrick Humblet
Edit Kajtár
George Katrougalas
György Kiss
Nikita Lyutov
Merle Muda
Ruth Nielsen
Tonia Novitz
Giovanni Orlandini
Daiva Petrylaite
Monika Schlachter
Andrzej Marian Świątkowski
Erika Szyszczak
Notes on Contributors
Nikitas Aliprantis, Professor Emeritus, Demokritos University, Member of the European Committee of Social Rights
Roger Blanpain, , Professor, Universities of Leuven, Belgium and Tilburg, The Netherlands
Niklas Bruun, Professor, University of Helsinki
Stein Evju, Professor, University of Oslo, Member of the European Committee of Social Rights
Elias Felten, Assistant, Institute of Labour Law, University of Salzburg
Konrad Grillberger, Professor, University of Salzburg, former Member of the European Committee of Social Rights
Patrick Humblet, Professor at the University of Ghent
Edit Kajtár, Senior assistant professor at the University of Pécs, Faculty of Law, Department of Labour Law and Social Insurance Law
George Katrougalas, Associate Professor, Demokritos University
György Kiss, Professor at the University of Pécs, Faculty of Law, Department of Labour Law and Social Insurance Law.
Nikita Lyutov, Senior researcher, Russian Academy of Sciences, Moscow
Merle Muda, Associate Professor of Labour and Social Welfare Law, University of Tartu
Ruth Nielsen, Professor of Law, Copenhagen Business School
Tonia Novitz, Professor of Labour Law, University of Bristol
Giovanni Orlandini, Professor of Labour and Social Security Law, University of Siena
Daiva Petrylaite, Associate Professor, Chair of Labour Law and Social Security, Vilnius University
Monika Schlachter, Professor of Law, Director of the Institute of Labour Law of the European Union – University of Trier, Member of the European Committee of Social Rights
Andrzej Marian Świątkowski, Jean Monnet Professor of European Labour Law and Social Security, The Jagiellonian University, Krakow; Member of the European Committee of Social Rights
Erika Szyszczak, Professor of Law, University of Leicester
Table of Contents
Notes on Contributors
Foreword
Andrzej Swiatkowski
General Comments
Roger Blanpain
National Reports:
Austria
Konrad Grillberger and Elias Felten
Belgium
Patrick Humblet
Denmark
Ruth Nielsen
Estonia
Merle Muda
Finland
Niklas Bruun
Germany
Monika Schlachter
Greece
Nikitas Aliprantis and George Katrougalos
Hungary
György Kiss and Edit Kajtár
Italy
Giovanni Orlandini
Lithuania
Daiva Petrylaite
Norway
Stein Evju
Poland
Andrzej Marian Świątkowski
Russia
Nikita Lyutov
United Kingdom
Erika Szyszczak
Tonia Novitz
Annex
Case C-341/05 (Laval)
Case C-438/05 (Viking)
Foreword
With the commencement of December 2007, the Council of the European Union’s Committee of Social Rights informed the session when the judgments in the Laval and the Viking Line cases would be handed down by European Court of Justice. Until then, I was unaware of these matters. Eminent Scandinavian lawyers, who are also members of the Committee, informed me that the Court’s rulings in these two hearings would be of grave importance for the development of European labour law, for domestic labour law systems, especially those of the Scandinavian countries. After the judgments were handed down, I came to experience various opinions from European labour law practitioners. At times the opinions were in diametrical opposition of one another. I therefore turned to Prof. Roger Blanpain who is the editor in-chief of the International Encyclopaedia of Laws, with the idea of creating a special volume for the Bulletin of Comparative Labour Relations, published by Kluwer Law International. The volume would include country reports dealing with how the decisions in the Laval and the Viking Line cases affect European labour law issues (in both individual and collective matters) as well as how they affect national labour law systems in countries that are joining the European Unions as well as in those countries that remain outside of it. The idea was accepted both by the editor in-chief of the Bulletin and by Kluwer publishing. I turned to numerous legal practitioners asking for article contributions covering the various aspects raised by the Court’s rulings and how the judgments influence international and domestic labour law structures in Europe. Unfortunately not all practitioners could be included in the published volume. It is possible to conclude from all the country reports collected for the Bulletin, that the general opinion of the legal community concerning the two landmark cases is divided.
Undoubtedly arguments presented both by the critics and by the supporters of the Court’s rulings, necessitate on the one hand an evaluation of the principles, methods and limitations of conducting economic activities within the EU. On the other hand, the arguments also allow for an insight into legal frameworks as well as into the scope of collective actions carried out by international trade unions led by trade organizations within particular EU member states against foreign employers entering the labour markets of other member states. The interests of the business entities, which formed the factual basis for the rulings handed down in Laval and in Viking Line, gave way to a dispute, which may be understood as a conflict of interests between the wealthy ‘old’ EU member states and the lesser economically advanced newly admitted EU countries. This Bulletin does not deal with the political agenda of the matters at hand, but rather discusses the issue from a labour law perspective. There is, however, a wider economic and social context that is also present.
Analysing the arguments, it is important to take note of the necessity to preserve the European social model and to awaken the solidarity between workers. Further, to take note of the necessity of balancing out the reasons associated with one of the most fundamental rights protected by labour law, i.e. the place of work and the freedom to undertake collective actions. Finally to take note of the necessity for all EU member states to adopt a minimum wage plan. Quite a number of the contributing writers to this Bulletin are either former or present members of the European Committee of Social Rights. They are well versed in the knowledge that Scandinavian countries have a specific approach to collective labour relations. The specificity lies in the fact that the states entrust their social partners, business and labour, to regulate wages.
The European Committee of Social Rights has, according to art. 22 of the Revised European Social Rights Charter, an obligation to systematically consider the possibility of extending the scope of applying international labour law and social security standards. The Committee may make suggestions together with member state authorities, however it lacks competence in matters concerning worker remuneration and benefits within member states, and therefore is often met with polite but firm refusal of its suggestions. The ruling handed down by the Court of Justice in Laval indicates member state authorities cannot free them from responsibility in labour relations, even if they have allocated certain powers of regulation to social partners.
The decisions handed down both in Laval and in Viking Line by the European Court of Justice are criticised for limiting the freedom of undertaking collective actions, a freedom that has been initially established by national labour legislation. Both British and Danish reports indicate the latter of the two has been the first to introduce such limitations for trade unions wanting to undertake collective actions against foreign entities employing posted workers in other member states. Collective actions in Great Britain orchestrated by trade unions concerning wages and employment of pilots in Atlantic passenger lines, have been withdrawn. The individual country reports also show that in the future member state authorities will be under an obligation to regulate or even limit the possibilities of organising and leading strikes and boycotts. On the other hand, other country reports affirm the Court’s rulings will not have any greater impact on national labour law systems.
Writers who accept the Court’s rulings in the two cases, underline the power/freedom to organise collective actions is a fundamental workers’ right, even though the EU in a limited manner regulates issues concerning collective labour laws (such as the European collective labour arrangements as well as ways of worker and/or representative organization participation in employer decision making processes). In the interest of a unified European market, it is of prime concern to create a structured balance between the rights of employers to freely move their business entities and services and the rights of workers and their representative organizations (trade unions) to undertake actions protecting common work interests. It is possible to deduce from the articles contained within the Bulletin, that the judgements handed down by the European Court of Justice in the Laval and the Viking Line cases aim to achieve exactly this. It is also of noteworthy importance to realise that for the first time in the history of the European Union and in the history of its predecessors, the rights protected by labour law regulations have been placed on par in importance with the rights protected by European economic law regulations.
Andrzej M. Świątkowski
Jean Monnet Professor of European Labour Law and Social Security
Head of the Chair of Labour Law and Social Policy, Jagiellonian University, Krakow
First Vice-President and member of the European Committee of Social Rights, Council of Europe, Strasbourg