The right to strike was upheld as a "fundamental right" in law by Europe's top court yesterday in a case that pitted freedom of establishment for employers against workers' rights under European Union law.
But the European Court of Justice said that collective action could be exercised only under strict conditions if it impeded businesses from locating where they wished within the EU.
The court was ruling in the so-called Viking Line case, which centred on industrial actionby Finnish seamen protesting at the reflagging of one of Viking's Finnish ferries to Estonia so that a less expensive crew could be employed.
The issues raised by the case are topical because EU enlargement has given businesses access to cheaper labour in the new central and east European accession states. The European Commission and 15 national governments intervened in the case, with differing views on how the two core values should be ranked. The ruling is likely to have wide implications for both employers and unions.
Yesterday, judges found that industrial action taken by the Finnish seamen had amounted to a restriction on the company's right to establish wherever it wished in the EU. But the court went on to say that such a restriction was acceptable if it pursued the legitimate aim of protecting workers. For that condition to be met, jobs or working conditions had to be at stake, and the workers' action had to be essential.
In particular, the workers or their union had to be sure that they had exhausted all other ways of resolving the conflict. The court then referred the case back to the national courts to decide whether those conditions had been satisfied.
The ruling received a guarded reaction from unions and their lawyers.
"We welcome the court's assertion that the right to take collective action, including the right to strike, is a fundamental right which forms an integral part of the general principles of Community law," said David Cockroft, the general secretary of the International Transport Workers' Federation, which spearheaded the Viking dispute. But he added: "The devil's in the detail and it's now up the Court of Appeal to apply this guidance to the particular facts of this case."
Thompsons, the UK's leading trade union law firm, said the court's emphasis on "the fundamental notion of the right to take industrial action is welcome".
The European Commission said that while it was still looking at the decision's detail, it was "a balanced judgment".
