Overriding social interest

The European court of Justice (ECJ) has upheld the trade unions’ right to collective action, including striking work, as a fundamental right. It has justified this in terms of the public interest of protection of workers, even where that right amounts to a restriction on the right of movement of establishments guaranteed under European Union (EU) law. The decision could force western European enterprises that relocate to the new EU member states in Eastern and Central Europe to agree to terms of employment similar to those they implement in EU states further west. Broadly, this will give a big boost to the demand for the universalisation of labour standards, a prerequisite for equity and fairness in a globally competitive situation. The ECJ ruling was delivered in a dispute where the principles of free movement of establishments and the workers’ right to collective bargaining were in contention. A Finnish shipowner had sought to fly an Estonian flag of convenience so as to hire a less expensive crew outside the framework of collective bargaining with the seamen’s union in Finland. In response, the Finnish Seamen’s Union, with backing from the International Transport Workers’ Federation, threatened industrial action. The court, while maintaining that restrictions on the registration of vessels in another country amount to an infringement of the freedom of establishment, nevertheless held that such a curtailment could be reasonably justified if its purpose is to guarantee the protection of workers and if it does not go beyond what is necessary to achieve that objective.

Under EU law, the general principle laid down by the Luxembourg court would serve as a basis for the final decision to be pronounced by the Court of Appeal of England and Wales. The ECJ ruling is an affirmation of the rights and conditions of labour enshrined in all the major treaties of the EU, beginning with the founding of the European Coal and Steel Community in 1951. The right to collective action is also an explicit provision in the European Charter of Fundamental Rights, which has legal sanction under the Reform Treaty signed recently by the 27 member states. This is especially critical in today’s highly polarised debates over the so-called social versus liberal Europe in the context of the European Commission’s drive to implement market-orientated reforms. Such distinctions at best exaggerate differences among EU states and undermine the definitive commitments that have sustained post-war European democracies. The ECJ ruling, binding on all the member states, is a vital reminder that the EU — a model in international cooperation — is not just an economic triumph but a social triumph too.

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