| Laval Un Partneri Ltd v Svenska Byggnadsarbetareforbundet | |
|---|---|
| Court | European Court of Justice |
| Date decided | 18 December 2007 |
| Citation(s) | C-319/05; [2008] IRLR 160 |
| Keywords | |
| Right to strike, freedom to provide services, Posted Workers Directive | |
Laval Un Partneri Ltd v Svenska Byggnadsarbetareförbundet [2008] IRLR 160 (C-319/05) is an EU law case, relevant to all labour law within the European Union, including UK labour law, which held that there is a positive right to strike. However, it also held that the right to strike must be exercised proportionately and in particular this right was subject to justification where it could infringe the right to freedom to provide services under the Treaty on the Functioning of the European Union article 56 (ex TEC article 49).
Laval was shortly preceded by another case involving the right to strike on freedom of establishment The Rosella,[1] and by the influential European Court of Human Rights decision in Demir and Baykara v Turkey.[2]
Contents |
A Latvian company, Laval Un Partneri Ltd won a contract from the Swedish government to renovate schools. Laval Ltd posted Latvian workers to Sweden to work on site. These workers earned much less than comparable Swedish workers. The Swedish Building Workers' Union (Svenska Byggnadsarbetareforbundet) asked Laval Ltd to sign its collective agreement. This collective agreement would have been more favourable than the terms required to protect posted workers under the Posted Workers Directive, and also contained a clause for setting pay that would not allow Laval Ltd to determine in advance what the pay would be. Laval Ltd refused to sign the collective agreement. The Swedish Builders Union, supported by the Electricians Union called a strike to blockade Laval Ltd's building sites. As a result, Laval Ltd could not do business in Sweden. It claimed that the blockade infringed its right to free movement of services under TEC article 49 (now TFEU article 56). The Swedish court referred the matter to the ECJ.
The ECJ held that, following ITWF v Viking Lines ABP, the "right to take collective action for the protection of the workers of the host state against possible social dumping may constitute an overriding reason of public interest" which could justify an infringement of free movement of services. However, in this case, it did not, because the systems for Sweden's collective bargaining was felt to be not precise enough for the company to know its obligations in advance.
| “ | 110 However, collective action such as that at issue in the main proceedings cannot be justified in the light of the public interest objective referred to in paragraph 102 of the present judgment, where the negotiations on pay, which that action seeks to require an undertaking established in another Member State to enter into, form part of a national context characterised by a lack of provisions, of any kind, which are sufficiently precise and accessible that they do not render it impossible or excessively difficult in practice for such an undertaking to determine the obligations with which it is required to comply as regards minimum pay (see, to that effect, Arblade and Others, paragraph 43). | ” |
The case has been roundly condemned by labour and human rights lawyers throughout the European Union. After the onset of the economic crisis, the issue of posted workers triggered a significant amount of unrest, with police equipping themselves with riot gear in response to wildcat strikes over posted workers in the United Kingdom.[3]