CYIL vol. 8 (2017)

VÁCLAV ŠMEJKAL CYIL 8 ȍ2017Ȏ especially to the CJ’s recent decision in the case AGET Iraklis . The third part will critically assess whether the CJ has chosen the optimal approach to balancing between fundamental freedoms and rights. Viking judgment and the dubious nature of the applied test The “Laval Quartet” judgments are already part of EU law textbooks in many countries and there would be no particular benefit in describing them one by one in this paper. Attention will therefore be paid to the oldest of the judgments, namely C-438/05 Viking , which is to a great extent an archetype of the conflict between market freedoms and fundamental social rights, since there was no substantial interpretation and application of specific EU secondary legislation, 7 but a direct collision of EU primary law principles. At the same time, the Viking judgment is regarded by legal science as more balanced than that in the case C-341/05 Laval , since, in Viking , the CJ had left the final assessment to the referring national court, while in Laval (where it had to interpret the scope of Directive 96/71/EC on the posting of workers in services), the CJEU itself condemned the collective action of trade unions as contrary to EU law. 8 However, the test used by the CJ to judge the conflict between fundamental freedoms and rights was, in both judgments, essentially identical, and the earlier Viking judgment can therefore be understood as a model of the Court’s approach to the issue. Let us briefly recall that the Viking case was opened by a reference for preliminary ruling made in connection with a dispute between the International Transport Workers’ Federation and the Finnish Seamen’s Union, on the one hand, and Viking Line ABP and its subsidiary OÜ Viking Line Eesti, on the other, concerning actual or threatened collective action liable to deter Viking from reflagging one of its vessels, Rosella , from the Finnish flag to that of another Member State, Estonia in this case. The “business” party to the dispute, the Viking Line, based its claim on the freedom of establishment governed by Article 43 of the EC Treaty (now 49 TFEU), while trade unions relied on the right of collective action, recognized both by Article 136 of the EC Treaty (now 151 TFEU) as well as by several international documents, including the Community Charter of the Fundamental Social Rights of Workers from 1989. Of the ten preliminary questions asked by the UK’s Court of Appeal, the really important one for the present analysis inquired “whether Article 43 EC must be interpreted as meaning that collective action initiated by a trade union or a group of trade unions against an undertaking in order to induce that undertaking to enter into a collective agreement, the terms of which are liable to deter it from exercising freedom of establishment, falls outside the scope of that article“ (para 32) and if the CJ’s response would be negative, then “ whether collective action such as that at issue in the main proceedings constitutes a restriction within the meaning of Article 43 EC and, if so, to what extent such a restriction may be justified. “ (para 67). In the dispute over whether the regulation of trade unions’ rights, which is explicitly excluded from the EU’s harmonization competence (Article 137 EC, now 153(3) TFEU), remains also outside the scope of application of the other Treaty provisions, the CJ recalled its earlier case-law, according to which, “ in the areas which fall outside the scope of the Community’s 7 The relevance of EC Regulation No 4055/86 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries was rejected in that case by the CJ as it would have come into play only after a successful transfer of the Rosella ship under the Estonian flag. 8 For the assesment of the cases see e.g. PETRLÍK, D. Vnitřní trh v judikatuře Evropského Soudního dvora 2004- 2015 ( Internal market in the EU Court of Justice Case Law 2004-2015 ), Praha: Leges 2016, pp. 167-169. 2.

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