The right to strike
Statement by CGT International Office
According to the European Court of Justice (ECJ), the right to strike is quashed by the right to the freedom of establishment (of enterprise) (Article 43 EC Treaty) and the right to the freedom to provide services
THE RIGHT TO STRIKE
According to the European Court of Justice (ECJ), the right to strike is quashed by the right to the freedom of establishment (of enterprise) (Article 43 EC Treaty) and the right to the freedom to provide services .
In 2003, the Finnish shipping company Viking decided that it could gain advantages over its competitors by re-registering a transport ferry sailing under a Finnish flag so that it could sail under an Estonian flag, replacing Finnish workers with an Estonian crew.
The reasons alleged by the company: competition from Estonian ferries sailing the same route (Helsinki-Tallinn, on the Baltic Sea) was having a direct effect on costs and unless it worked under the same conditions, it would have to retire the ship.
The Finnish union FSU and the International Transport Workers Federation called a strike to prevent the company from re-registering the ferry and force it to apply Finnish working conditions (union agreement).
The company Viking Line ABP and its parent company (group of companies) OU Viking Line Eesti turned to the British courts to oppose the strike, arguing that it was contrary to the principle of freedom of establishment (article 43 EC Treaty) and the freedom to provide services laid down in EC Regulation 4055/1986 governing the application of the principle of freedom to provide services to shipping transport between member states and between member states and other countries.
At the request of the Court of Appeal (England & Wales) (Civil Division) (United Kingdom), the Court of Justice issued a decision on the request from the British Court of Appeal by means of the Decision of the Court of Justice (Grand Chamber) dated 11 December 2007, which reads as follows:
"...Article 43 of the EC Treaty should be interpreted as stating that strike measures such as those indicated in the matter at hand, whose purpose is to achieve a situation where a private company whose corporate domicile is located in one member state signs a working agreement with a trade union established in the said state and applies the clauses laid down in the agreement to the workers employed by a subsidiary of the said company established in another member state constitute restrictions in accordance with the said article..."
THE BACKGROUND AND PRACTICES IN THE CASES OF THE RELOCATION OF ENTERPRISE (IN ANY SECTOR AND ACTIVITY) AND COMMUNITY LAW
The last "famous" example of relocation in Spain was the multinational DELPHI in Puerto Real, which "shut down and fled" because the freedom of circulation of capital and the freedom of establishment of capital were raised to the category of fundamental rights in the European Community Treaty, as laid down in articles 14 (domestic market without frontiers and guarantee of free circulation of services), 43 (freedom of establishment) and 49 (freedom to provide services) thereof.
An identical case is currently occurring with the multinational NOKIA in Germany.
The EU and its European Court of Justice uphold and support the policies issued by the World Trade Organisation (WTO), which require absolute freedom in the rules governing international trade so as not to distort free competition. This argument is the one used by the company Viking to oppose the strike called by the Finnish union and the International Shipping Transport Federation.
The freedom of the market (as the only freedom) and the defence of free competition, as a condition of the labour, social and environmental precarisation of workers is a REGULATION that governs social and labour relations on the single European market, where homogenisation, i.e. the protective workers statute itself, is an attack against the only fundamental rights that are constituted by market regulations, regardless of where the goods are produced or where the services are distributed: the freedom of enterprise, its establishment and the freedom to provide services where it wants and under the best working and employment conditions for free competition. All in the name of a highly competitive social market economy.
The greater mobility of capital and its trans-nationalisation give rise to a more efficient allocation of world saving and cause the deterioration of working conditions in central countries and in the impoverished or "developing" countries, with the additional consequence of the dismantling of trade-union power.
THE EUROPEAN UNION AND ITS REGULATIONS IN CASES OF RELOCATION OR RE-REGISTRATION (CHANGE OF FLAG)
European companies resort more and more to the relocation of their services to low-cost countries with poor labour practices. This involves an absence of regulations that protect paid work; labour prices that are up to 60% cheaper; tax incentives and subsidies from the destination states of up to 120% of the investment in production (examples include the cantons in China, areas of Turkey, India, etc.); highly qualified labour in high value-added technology sectors (complex computer programs are outsourced to India by computer giants such as IBM).
The enlargement of the EU to 27 member states has meant that the countries receiving the highest amount of foreign capital are the ones that have recently been incorporated: Poland, Czech Republic, Slovakia, Estonia, Latvia, etc. The territorial replanning of the EU's intervention on world markets includes the countries of the Maghreb (Morocco, Algeria, Tunisia, etc.), the markets of Eastern Europe and the third pillar of southeast Asia (basically, China).
Through a variety of European financial instruments, the European Commission sets up funds to subsidise business activities and, accordingly, it has introduced a new article (art. 51 of the aforementioned General Regulations of the European Development Fund), which states that the corresponding state must make sure that the aid given to an enterprise is used to co-finance a project that is not modified in any signifycant way during a term of seven years.
Modifications include the total or partial stoppage of production as a result of transfer to another country. In these cases, the Commission will require the enterprises to return the funds they have received (in the case of Viking, although it tried to soften the impact of its decision, the Court of Justice highlighted the possibility of resorting to the Finnish state to require the enterprise to return the subsidies received by the ship it is re-registering).
CONSEQUENCES AND... WHAT RESPONSES FROM THE UNIONS?
In this context of liberalism and deregulation; of unlimited competition between areas, regions, countries, blocks, workers in the first world competing with those of the other worlds... finding a place for social-trade union action is neither easy nor simple. However, either we react, and not only on a rhetorical scale (debate and discussion on this new attack against the right to strike), or the real situation will be more "miserable" than any present-future prediction we could make.
Trade union strategy must be capable not only of showing the seriousness of policies which, in the name of competitiveness and the free market, destroy any social relation based on respect for democracy and the collective rights of every man and woman and freedom, but also of acting and using sufficient force to put an end to this barbarism.
It is the trade unions that have to renounce to managing the conflict and acting as a cohort for the decisions taken by the European Commission and its legal wing, the ECJ, and understand that the reactivation of the conflict is the only possible solution for constituting a model of social/labour relations based on justice and solidarity sufficient for every man and woman.
1.- My thanks to Antonio Baylos, Professor of Labour and Social Security Legislation of Universidad Castilla La Mancha for
his involvement in this matter and his knowledge of the right to strike.
To Raúl Maillo, lawyer, for his knowledge and militant commitment.