European Social Law Essay
“In Western European societies, the dissociation between labour law and the law governing markets, which resulted in the emancipation of the former [from the latter], has been of significant relevance”

(Antoine Lyon Caen, translation from “Droit Communautaire du marché v.s. Europe sociale”)

Discuss whether and to what extent the ECJ's judgements in Viking, Laval, and Rüffert make it difficult to uphold the division between labour law on the one hand and the law of the (internal) market on the other hand, which - according to Lyon Caen - has been characteristic of labour law in Western Europe so far.

Dissociation between labour law and law governing markets

Labour law emanicapted from law governing markets

Is it difficult to uphold labour law? and law of internal market?

Balance the two?

Introduction
Balance the application of the EU's free movement rules (in particular the right to work and provide services in another member state) with the maintenance of different national social systems

How will these freedoms affect trade union rights such as the right to collective action and collective bargaining?

For a long time there has been a tendancy to look upon the EC as a guarantor of labour and social rights (particularly by the UK)

Globalisation poses threats to national protection of labour law.

Creates pressure for race to the bottom.

So, supranational action is needed to defeat this pressure (justification for ILO)

In the topography of the common economic aims ,there will always be upstream struggle from social/labour protection

EC seemed to deny it legislative competence in the field of industrial action.

Said that this neutrality was a façade

There can be tension between four freedoms and industrial action

Some people say that these cases signify an end to social Europe and pose a threat to the democratic legitimacy of the EU

Idea was that groups could regulate from the bottom up

I am sympathetic to the view

Workers can move freely across the union

Capital will seek to turn our freedoms against us

In the judgements of Viking, Laval, and Rüffert, the ECJ makes it easier for bosses to undermine union agreements in one country by “shipping in” or “posting” entire temporary workforces from other countries

ECJ has ruled that the right to industrial action can sometimes be justified under EC law to protect against social dumping

Viking and laval decisions hsow that there is a deep uncertaintiy within the EU about the trade union movement

The ability of firms to relocate around the EU is not intended to precipitate a ‘race to the bottom' in labour standards because directives are meant to provide some degree of harmonization in this field

One of the significant features of the Viking and Laval cases is that the ECJ sites the EU Charter of Fundamental Rights as one of its sources for the right to take collective action.

The ECJ was initially reluctant to use the Charter.

Now it places some reliance on the Charter in situations not covered in previous case law.

One of the functions to market integration is to eliminate barriers to free movement.

An inevitable consequence is that, where they conflict with economic freedoms, long established social practices and domestic legislation are subjected to scrutiny.

Posted workers directive The potential conflict between employers right to free movement and the workers right to strike under national labour law is aptly illustrated by the factual circumstances surrounding the Viking and Laval cases the potential conflict between employers' rights to free movement and workers right to strike under national labour law is aptly illustrated by the factual circumstances surrounding the Viking reference from the UK, Laval reference from Sweden, and the Rüffert reference from Germany.

It is impossible to overestimate the importance of the Viking and Laval judgements.

Section One
The ECJ ruled in the Laval case that the right to industrial action can sometimes be justified under EU law to protect against social dumping.

The freedom to provide cross-border services set out in Article 49 EC Treaty, along with the freedom of establishment, is acknowledged as a ‘fundamental freedom' central to the effective functioning of the EU internal market.

The principle of the freedom to provide services enables an economic operator providing services in one Member State to offer services on a temporary basis in another Member State, without having to be established.

These Treaty provisions have direct effect so that Member States must modify national laws that restrict this freedom of orhterwise is not comptible with the Treaty's principles/

Article 3 of the Posted Workers Directive states that Member States should ensure that terms and conditions established by law, or by universally applicable collective agreemtns, apply to posted workers, in particular in relation to minimum work periods, breaks, annual holidays, rates of pay.

The ECJ held in Laval that the right to take collective action must be recognised as a fundamental right forming an integral part of the general principles of Community law.

The right to take such action against possible social dumping may constitute an overriding reason of public interest.

The ECJ noted that industrial action aimed at obtaining terms and conditions which went beyond the minimum established by law made it less attractive for undertakings such as Laval to carry out business in the Member States and therefore constituted a restriction on the freedom to provide services, guaranteed under the Treaty.

The ECJ noted that while Article 3 of the Posted Workers Directive gave a right to minimum terms and conditions to posted workers, these rights had to have been underpinned either by law or universally applicable collective agreements.

It was held that the failure to take account of these collective agreement reached between the employer and the Latvian trade union amounted to discrimination against both organisations.

a Latvian construction company won a contract to renovate a school in Sweden and posted Latvian workers to the site.

As Sweden had not properly implemented the Posted Workers Directive, minimum wage for workers in Sweden was to be held by a collective agreement.

Laval signed a collective agreement with the Latvian builders trade union in Latvia, which entailed lower terms and conditions than those prevailing in Sweden.

The local branch of the Swedish builders trade union opened negotiations with Laval's Swedish subsidiary with the aim of extending the relevant sectoral collective agreement to the posted workers and negotiating wages for them.

The negotiations failed.

Conseuqnelty, the union began a blockade of Laval's building site.

This effectively put a stop to all work on Laval's sites and eventually resulted in Laval's Swedish subsidiary going into liquidation.

Laval sought an action in the Swedish courts to obtain a declaration that this action was unlawful; and that certain aspects of the Swedish law directly discriminated against foreing undertakings, which was in direct conflict with Article

The freedom to provide cross-border services set out in Article 49 EC Treaty, along with the freedom of establishment, is acknowledged as a ‘fundamental freedom' central to the effective functioning of the EU internal market.

The ECJ noted that the right to take collective action must be recognised as a fundamental right forming an integral part of the general principles of Community law.

The ECJ noted that industrial action aimed at obtaining terms and conditions which went beyond the minimum established by law made it less attractive for undertakings such as Laval to carry out business in the Member State and therefore constituted a restriction on the freedom to provide services guaranteed under the Treaty.

ECJ noted that while Article 3 of the Posted Workers Directive gave a right to minimum terms and conditions to posted workers, these rights had to have been underpinned either by law or by universally applicable collective agreements.

Held that the failure to take account of the collective agreement reached between the employer and the Latvian trade union amounted to discrimination against both organisations.

Court held that Article 49 had horizontal direct effect and that the collective agreement had infringed Article 49 as it went beyond the minimum domestic requirements making it more difficult or less attractive for a firm to establish itself in another country.

Court went on to examine whether this infringement pursued a legitimate object compatible with the Treaty and was justified by reasons of public interest.
Section Two
The Viking case concerns a workers right to take collective industrial action, specifically if the effect of such action would be to impede the right of the employer to the free movement of goods and services.

Case concerned a ferry that operated between Estonia and Finland, which was reflagged to acquire cheaper Estonian labour to work on the ship. The Finish seamsn union, while accepting that the company had the right to employ the workers, insisted that these orkers must be employed under the terms of the existing Finish collective agreement.

The case involved a conflict of rights: the employers right to free movement of goods and services, as protected by Article 43 EC Treaty; and the right to strike, as guaranteed by Article 28 of the Charter of Fundamental Freedoms.

Effect of Article 28 of the Charter is to give all workers, regardless of the nature of the employer whether public or private, the right to take collective action, exercised within the terms of any national laws.

In this case, the employer submitted that that right to take industrial action must be subservient to the rights under Article 43, 49 EC Treaty, ad that any industrial action that impedes these fundamental rights should be prohibited.

In response, the trade union submitted that the right to take collective industrial action falls outside the scope of Article 43 EC, even where the impact of such action is to hunder, impede or even prevent the exercise of an Article 43 EC Treaty right.

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