CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ TEN YEARS AFTER THE VIKING JUDGMENT … competence, the Member States are still free, in principle, to lay down the conditions governing the existence and exercise of the rights in question, the fact remains that, when exercising that competence, the Member States must nevertheless comply with Community law “ (para 40). Even if it is evident that the competence of the EU is a different matter than the scope of application of EU law, the CJ’s position shows that Member States have no means to protect their locally embedded models of social consensus against the denationalizing pressure of European integration. 9 This effect, fully substantiated in the light of primacy and effectiveness of EU law, however means in practice that the CJ can decide on conditions and limits (thus indirectly also on the content) of legal regulation that should have remained, in terms of the will of the “Masters of the Treaty”, within their own exclusive competence. The referring court therefore asked about, and also the trade unions in their pleadings referred to, a possible analogy with the decision of the CJ in the case C-67/96 Albany , in which the Court regarding the EU rules on the protection of competition concluded that even though certain restrictions on competition are inherent in collective agreements, these Treaty rules do not apply there. In the Viking case, however, the CJ rejected any such analogy and stressed that similar reasoning cannot be applied in the context of the fundamental freedoms (para 51). “The fact that an agreement or an activity are excluded from the scope of the provisions of the Treaty on competition does not mean that that agreement or activity also falls outside the scope of the Treaty provisions on the free movement of persons or services since those two sets of provisions are to be applied in different circumstances. ” (para 53). Although the CJ declined to recognize an immunity of trade union competences and actions from the point of view of EU internal market law, it has not yet denied the legitimacy of these competences and their exercise. On the contrary, the CJ in the Viking decision enhanced to a great extent the status of trade unions’ rights when, in paragraph 44 of the judgment, it stated that the right to take collective action, including the right to strike, must be recognized as a fundamental right which forms an integral part of the general principles of Community law, the observance of which the Court ensures. For the first time in its jurisprudence, the CJ recognized the right of trade unions to collective action as a fundamental right and underlined its importance by stating that “ the Community has thus not only an economic but also a social purpose, the rights under the provisions of the Treaty on the free movement of goods, persons, services and capital must be balanced against the objectives pursued by social policy…“ (para 79). Thus, the CJ also admitted that the freedom of establishment could be limited in the name of exercise of this fundamental right. However, at this point in its reasoning, it is as if the CJ forgot that the exercise of freedom of establishment clashes with a really fundamental right. It just emphasized, in general, that the exercise of that fundamental right may be subject to certain restrictions (para 44), but after that did not seek to justify its limitations. The CJ ceased to treat the trade unions’ action as an expression of a fundamental right, which, once recognized, does not need to excuse itself by further justifications or demonstrations of legitimacy, but should only be guarded against possible misuse and, if necessary, could be reasonably restricted in the name of application of another fundamental value of a democratic society. Instead of that the CJ began to proceed by analogy to the application of a standard exception to the freedom of

9 See for this argumentation MCCANN, A., The CJEU on trial: Economic Mobility and Social Justice. European Review of Private Law No 5/2014, p. 762.

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