• In Case C-438/05 Viking Line [2007], it was held that the right of members of a trade union to strike is a fundamental right, and as such, it can, in principle, form an objective justification to an impingement on the freedom of establishment under Article 49 Treaty on the Functioning of the European Union.

Facts of the case:

  • Viking Line wanted to operate one of their ships, The Rosella, under the Estonian Flag rather than the Finnish Flag, in order to circumvent the higher wages they would have to pay to workers if it was operating under the Finnish flag.
  • The International Transport Workers Federation (ITWF) opposed such ‘reflagging’ practices by shipping companies, and therefore the Finnish Seamen’s Union, a member of the ITWF proposed strike action.
  • Viking Line sought an injunction in England, on the grounds that it would infringe its right to freedom of establishment under Art 56 TFEU.
  • The Court of Appeal referred a number of questions arising out of this dispute to the Court of Justice of the European Union (CJEU)

Issues in Case C-438/05 Viking Line [2007]:

  • Whether the collective action taken by workers to protect their interests could be unlawful because it impinged their employers’ interests under Article 56 TFEU.

Held by the CJEU:

  • CJEU ultimately held that whilst it was for the national court to answer the fundamental question at issue, it was indeed the case that collective strike action could be unlawful on the basis that it infringes Community Law, and specially Article 56 TFEU, but also the national courts could also determine that the restriction was justified and proportionate, if it was upholding a fundamental right.

What the CJEU specifically said:

  • [44] “The right to take collective action, including the right to strike, must be therefore recognised as a fundamental right which forms an integral part of the general principles of Community Law”
  • [55] “In principle, collective action initiated by a trade union or a group of trade unions against an undertaking, in order to adduce that undertaking to enter not a collective agreement, the terms of which are liable to deter it from exercising freedom of establishment, is not excluded from the scope of that article”

Editors’ notes

  • This case fits neatly alongside all of the other EU cases regarding objective justifications. Its overarching principle is that in theory, the fundamental rights of individuals such as the right to take collective action, can constitute an objective justification. This is consistent with Case C-112/00 Schmidberger v Austria [2003] ECR I-5659, which upheld the same principle.

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