23.2.2008

Official Journal of the European Union

C 51/11

(Case C-438/05)

(Maritime transport - Right of establishment - Fundamental rights - Objectives of Community social policy - Collective action taken by a trade union organisation against a private undertaking - Collective agreement liable to deter an undertaking from registering a vessel under the flag of another Member State)

(2008/C 51/17)

Language of the case: English

Referring court

Parties to the main proceedings

Applicants: International Transport Workers' Federation, Finnish Seamen's Union

Defendants: Viking Line ABP, OÜ Viking Line Eesti

Re:

Reference for a preliminary ruling — Court of Appeals Civil Division — Interpretation of Article 43 EC and of Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries (OJ 1986 L 378, p. 1) — Industrial action by a trade union to compel a private undertaking to adopt a collective bargaining agreement making it pointless for that undertaking's vessels to reflag to another Member State — Applicability of Article 43 EC and/or Regulation No 4055/86 under Title XI of the EC Treaty and Case C-67/96 Albany — Whether an undertaking can rely on the provisions of Article 43 EC and/or Regulation No 4055/86 against another private person, including a trade union in respect of its industrial action.

Operative part of the judgment

1.Article 43 EC is to be interpreted as meaning that, in principle, collective action initiated by a trade union or a group of trade unions against a private undertaking in order to induce that undertaking to enter into 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.

2.Article 43 EC is capable of conferring rights on a private undertaking which may be relied on against a trade union or an association of trade unions.

3.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 a private 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.

(1) OJ C 60, 11.3.2006.