The Scandinavian model … of the trade union blockade legitimized by two European magistrates

(B2) Will those who loved the Scandinavian model have to burn it? And vice versa. Fans of Nordic flexicurity had probably not noticed one or two small "details" of this model, starting with the power of trade unions to enforce compliance with collective agreements setting pay levels or working conditions, if necessary by the blockade of companies or solidarity actions (the famous political action prohibited in several European countries as in France). The height of misfortune... this practice, widely criticized by certain business circles in Sweden, could be legitimized by the European Court of Justice. At least if we are to believe the conclusions that have just been rendered by the two Advocates General - responsible for giving the position of Community law and indicating the "right" path to their judicial colleagues (a bit like a government commissioner before the Council of French State) - the Portuguese Miguel Poiares Maduro and the Italian Paolo Mengozzi.

In two disputes concerning the possibility for trade unions (from Northern Europe) to require companies to comply with collective conventions and agreements, the two advocates general of the Court of Justice of the EC have in fact ruled in favor of the right to trade union action in the face of the principles of the freedom to provide services and the right of establishment when it comes to preventing or reducing the risk of social dumping. This legitimacy of the economic blockade and trade union action is obviously not without limits. And the Advocates General propose to establish specific conditions for this perilous trade union exercise. As Advocate General Miguel Poiares Maduro explains, "Public interests relating to social policy and fundamental rights are likely to justify certain restrictions on free movement as long as they do not go beyond what is necessary. The fact that social policy is one of the objectives of the EC Treaty does not mean that measures taken in this field are automatically excluded from the scope of the rules on free movement." Everything is therefore a matter of nuance. But placing the social norm and the free market on an equal footing, or even admitting social exception in this market, is a bold step. It remains for the Court to decide!

1st case. The Latvian company does not respect the average wages in force: the blockage is legitimate if it is a question of enforcing a collective agreement and for the general interest.
In the first case, the Swedish trade unions had carried out a blockade action in the autumn of 2004 against Laval un Partneri, a Latvian company, because the latter did not want to respect the local collective agreements (case C-341/05).
For the Advocate General, "trade unions may, by collective action, taking the form of a blockade and solidarity action, compel a service provider from another Member State to subscribe to the wage rate, determined by collective agreement", if this action is motivated "by objectives of general interest, such as the protection of workers and the fight against social dumping, and that they are not exercised in a manner disproportionate to the achievement of goals".
Among the criteria for assessing this proportionality, Paolo Mengozzi mentions the fact that the collective agreement in question (building) includes "a real advantage which contributes significantly to the social protection of posted workers and does not duplicate any identical or essentially comparable offered to these workers by the legislation and/or the collective agreement applicable to the service provider in the Member State of his establishment".
In his reasoning, Mr Mengozzi also asserts that the particular situation of Sweden - and of certain other Member States - which grants the social partners the task of setting working and employment conditions, in particular for remuneration, through the through collective agreements, does not in itself constitute "insufficient implementation of Directive 96/71" (posting of workers). On the contrary. By granting trade unions "the right to resort to collective action to compel a service provider to subscribe to a wage rate determined in accordance with a collective agreement, applicable in fact to national companies in a comparable situation, Sweden ensures that the objectives, referred to in Directive 96/71, of protection of workers and equal treatment between operators, have been achieved".

2nd case: a Finnish shipping company employs Estonian employees, paid less, and threatens to move (change flag): the trade union blockade is legitimate before the relocation, not after. It cannot prevent other unions from acting.
In the second case, the unions demanded the application of Finnish wage standards to Estonian seafarers hired by the local shipping company, Viking, for its connections between Estonia and Finland and wanted to prevent it from changing its flag. (Case C‑438/05) For the Advocate General, "trade unions can take collective action to dissuade a company from moving within the European Community". But once the relocation has been carried out, if this company is already established in another Member State, "the fact of preventing it from legally providing its services in another Member State would be incompatible with Community law".
Similarly, "a pol
co-ordinated policy of collective action between unions is normally a legitimate means of protecting the wages and working conditions of seafarers", he stresses. However, "collective action which has the effect of partitioning the labor market and which preventing the recruitment of seafarers from certain Member States in order to protect the employment of seafarers in other Member States would call into question the principle of non-discrimination on which the common market is founded".
Finally, the Advocate General recognizes that, while the trade unions concerned (ITF and FSU) can use collective action as a means of improving the working conditions of seafarers throughout the Community, the other trade unions must be able to remain "free to choose whether or not they participate in a given class action".

(NGV)