Justice and her scales, on top of the Old Bailey, London (Flickr)
This is the first of hopefully many articles on European Law I will write during my year at King’s, while I am taking an LLM with specialism in that topic.
Today’s topic was inspired by the readings for the first session of the course on “European Labour Law”, which focused mainly on the different sources of rights benefiting European workers and the existence (or not) of a hierarchy among them. Among others, we were invited to read the Viking case, decided by the ECJ (European Court of Justice; now, CJEU: Court of Justice of the European Union) in December 2007, and the Demir and Baykara v. Turkey case, decided by the ECtHR (European Court of Human Rights) in November 2008, and then to answer the question “are these two cases reconcilable?” You will have guessed that this question is formulated in a way that probably calls for a negative answer. And indeed, one of my honourable teachers, Professor Keith Ewing, has written an article in which he defends such a negative answer.
However, I have an opposite opinion. Therefore, this article will first give an outline of the above mentioned cases. Then, I will present an excerpt of Professor Ewing’s article. And finally, I will explain why I believe that the positions of the ECtHR and the ECJ are much closer than he thinks.
The Viking case (ECJ, 11.12.2007; C-438/05)
In this decision, the ECJ balances the right to collective action with other rights and freedoms guaranteed by the Treaties.
Viking is a Finnish company wanting to reduce its costs by reflagging one of its ships (operating on the Tallinn-Helsinki line) in Estonia, in order to compete with cheaper Estonian competitors. To do so, it wanted to transfer the staff and the ownership of the ship to a subsidiary in Estonia. The Finnish trade union FSU refused to caution the move, organized a strike and refused to renew the manning agreement, in accordance with the prescriptions of ITF (International Transport Worker’s Federation). Several questions were referred to the ECJ, which had to decide whether the actions by the trade unions were respecting or not the freedom of establishment (art.43, EC Treaty; today: article 49, TFEU) which is a right enjoyed by Viking.
First, the ECJ declared that these actions felt under the scope of EC (now EU) Law. Indeed, the ECJ noted that, according to previous case law, “the protection of fundamental rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty, such as the free movement of goods [see Schmidberger, C-112/00, 2003] or freedom to provide services [see Omega, C-36/02, 2004]”. However, in both decisions, “the Court held that the exercise of the fundamental rights at issue, that is, freedom of expression and freedom of assembly and respect for human dignity, respectively, does not fall outside the scope of the provisions of the Treaty and considered that such exercise must be reconciled with the requirements relating to rights protected under the Treaty and in accordance with the principle of proportionality”. So, there can be restrictions to the right to strike.
Furthermore, regarding the existence of restrictions to the freedom of establishment, “first, it cannot be disputed that collective action such as that envisaged by FSU has the effect of making less attractive, or even pointless, as the national court has pointed out, Viking’s exercise of its right to freedom of establishment, in as much as such action prevents both Viking and its subsidiary, Viking Eesti, from enjoying the same treatment in the host Member State as other economic operators established in that State. […] Secondly, collective action taken in order to implement ITF’s policy of combating the use of flags of convenience, which seeks, primarily, as is apparent from ITF’s observations, to prevent ship owners from registering their vessels in a State other than that of which the beneficial owners of those vessels are nationals, must be considered to be at least liable to restrict Viking’s exercise of its right of freedom of establishment.” The Court concludes that “collective action such as that at issue in the main proceedings constitutes a restriction on freedom of establishment within the meaning of Article 43 EC.”
Now, all restrictions are not prohibited. Indeed, a restriction can be allowed if it “pursues a legitimate aim compatible with the Treaty and is justified by overriding reasons of public interest” and, additionally, is “suitable for securing the attainment of the objective pursued [without going] beyond what is necessary in order to attain it”. In our case, “the right to take collective action for the protection of workers is a legitimate interest”. So, “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”.
Regarding FSU’s collective action (the strike), the ECJ declared that “it is for the national court to examine, in particular, on the one hand, whether, under the national rules and collective agreement law applicable to that action, FSU did not have other means at its disposal which were less restrictive of freedom of establishment in order to bring to a successful conclusion the collective negotiations entered into with Viking, and, on the other, whether that trade union had exhausted those means before initiating such action”.
As for ITF’s controversial rule [ITF is required, when asked by one of its members, to initiate solidarity action against the beneficial owner of a vessel which is registered in a State other than that of which that owner is a national], the ECJ stated that “article 43 EC is to be interpreted to the effect that collective action such as that at issue in the main proceedings, which seeks to induce an undertaking whose registered office is in a given Member State to enter into a collective work agreement with a trade union established in that State and to apply the terms set out in that agreement to the employees of a subsidiary of that undertaking established in another Member State, constitutes a restriction within the meaning of that article. That restriction may, in principle, be justified by an overriding reason of public interest, such as the protection of workers, provided that it is established that the restriction is suitable for ensuring the attainment of the legitimate objective pursued and does not go beyond what is necessary to achieve that objective.”
The Demir and Baykara v. Turkey case (ECtHR, 12.11.2008; Application n°34503/97)
In this case, the European Court of Human Rights (ECtHR) found unanimously that Turkey had violated article 11, §1 of the ECHR, which grants everyone “the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.” The following summary of the case is based on an information note provided by the ECtHR’s data basis HUDOC.
It is worth noting that §2 of the same article states that: “No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
The applicants were the president of the Tüm Bel Sen trade union (whose members were civil servants) and one of its members. Following a conflict with a municipal council, the trade union “brought proceedings against it” before the District Court and won its case. But in December 1995, “the Court of Cassation ruled that in the absence of specific legislation, the freedom to join a trade union and to bargain collectively could not be exercised. It indicated that, at the time the union was founded, the Turkish legislation in force did not permit civil servants to form trade unions. It concluded that Tüm Bel Sen had never had legal personality since its foundation, and therefore did not have the capacity to bring or defend court proceedings”.
The ECtHR declared that “the restrictions cannot impair the very essence of the right to organise”. Moreover, “municipal civil servants, who are not engaged in the administration of the State as such, could not in principle be treated as ‘members of the administration of the State’”. The Court also states that “it had not been shown that the absolute prohibition on forming trade unions imposed on civil servants by Turkish law, as it applied at the relevant time, met a pressing social need”. Furthermore, it included in article 11 the substance of ILO Convention n°87 (which guarantees public officials the right to form a trade union) which was anyway, “by virtue of the Turkish Constitution, directly applicable in domestic law”. Additionally, “the right to bargain collectively with an employer had, in principle, become one of the essential elements of the ‘right to form and to join trade unions for the protection of [one’s] interests’ set forth in Article 11 of the Convention”. So, “the Court concluded that the retroactive annulment of the collective agreement was not ‘necessary in a democratic society’”.
Some academics think these two judgements cannot be reconciled…
As already states in introduction, Professor Keith Ewing is of that opinion. Below is an excerpt of his deep and precise analysis of the Demir and Baykara v. Turkey case (see p. 38-43 on the topic discussed here).
“These ECJ cases [Prof. Ewing refers not only to Viking, but also to Laval (C-341/05), Rüffert (C-346/06) and Commission v. Luxembourg (C-319/06)] were decided before Demir and Baykara and most of its associated ECtHR jurisprudence discussed above, in the light of which the ECJ cases may have to be reconsidered. The ECJ decisions cannot be reconciled with the ECtHR’s requirement of a legal regime that (i) recognises the right to collective bargaining (and the duty to take steps to promote it), (ii) respects the right to take collective action, and does so (iii) in accordance with international labour conventions and regional labour standards. In particular, Demir and Baykara were concerned precisely with the annulment of a collective agreement by law, a situation apparently analogous to the denial of the application of the collective agreements in Rüffert and Luxembourg. It is hard to see why, if those ECJ decisions were before the ECtHR, the latter would not come to the same conclusion as in Demir and Baykara since the justification in the ECJ cases would not appear to be necessary in a democratic society, certainly not in Germany or Luxembourg! In Viking, the ECJ purported to recognise the fundamental nature of the right to strike as a part of EU law and made reference to both the ILO and the ESC. But the ECtHR has since clarified the position and has certainly not recognised any limitation on the right to strike that would reflect that imposed by the ECJ in Viking and Laval. But so far as making the ECJ accountable to this jurisprudence of a higher legal order is concerned, there is of course the problem that the EU is not yet (and perhaps may not be for some time) a party to the ECHR and therefore not answerable directly to the ECtHR.”
But in fact, these judgements are not so different…
I note that both the EU and the ECHR foresee the possibility to limit the right of collective action. Both also recognize that it is a human right and that it has, as such, a high importance. And both use the principle of proportionality: is the restriction appropriate to reach the goal and is it necessary?Only the wording is different: “overriding reason of public interest” for the ECJ; “pressing social need” for the ECtHR.
The difference lies, in my opinion, in the fact that the ECtHR appreciates a bit more restrictively the limits to the right of collective action. Indeed, in the Demir case, it tries to find any flaw in the legal reasoning of the Court of Cassation (e.g., it interprets restrictively the notion of “members of the administration of the State”, which is not wrong, in my opinion, but differs from the case law of the ECJ).
The ECJ, on her side, has to balance the right of collective action with other rights that are granted in the treaties; in the Viking case, it is the freedom of establishment. As both have the same “normative value”, the right to collective action may be slightly less protected than it is by the ECtHR.
Let us also note that all international and European conventions contain a clause limiting the rights warranted under them.
We have seen that in article 11, §2 of the ECHR (see above).
Furthermore, Article G of Part V of the modified (in 1996) European Social Charter (“Restriction”) fixes that:
“The rights and principles set forth in Part I when effectively realised, and their effective exercise as provided for in Part II, shall not be subject to any restrictions or limitations not specified in those parts, except such as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals.
The restrictions permitted under this Charter to the rights and obligations set forth herein shall not be applied for any purpose other than that for which they have been prescribed.”
Moreover, Article 8 of the ILO Convention n°87 indicated that:
“In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land. [Let us note that European applies in the land and should therefore be included in this category]
The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.” It is evident that the ECJ judgements do not prohibit the right of collective action (are there no strikes anywhere in Europe?) and of collective bargaining.
European workers draw their labour rights from multiple sources. There are international sources, notably the ILO constitution in 1919 and its annex (“declaration of Philadelphia), as well as the “Declaration on fundamental principles and rights at work” (1998) and more than 180 ILO conventions and 190 recommendations, not to mention several Codes of Practice. There are also two types of European sources: rules adopted by the members of the Council of Europe (mainly the European Convention on Human Rights of 1950 and the European Social Charta of 1961) and EU Law (Treaties’ provisions, the Charter of Fundamental Rights, several directives and regulations). Additionally, at European level, there is the case law of the ECJ/CJEU and the ECtHR. Finally, labour rights also come from rules at the national level (either public rules – Constitution, laws, etc. – or private ones, such as collective agreements).
All these rules interact and it is the role of the politicians and of the courts to ensure that they do not clash. In the case we have discussed in this article, i.e. the compatibility of the ECtHR’s and the CJEU’s case law, it is my opinion that these two courts are engaged in a dialogue that has already been lasting for many years and that no major conflict has emerged yet nor will emerge in a near future, as it is in the interest of neither court to take the risk of being marginalised while trying to get the supremacy over the other legal orders and the other courts. One may see some minor differences in their approaches, but “legal diplomacy” should ensure that there will be no major clash.