International Transport Workers’ Federation e Finnish Seamen’s Union v. Viking Line ABP e OÜ Viking Line Eesti, Case C-438/05, CJEU, 11 December 2007

Collective agreement preventing a company from registering a ship with the flag of another Member State. Discrimination based on nationality.

Art. 43 EC
Art. 28 of the Charter of Fundamental Rights of the European Union

1. Art. 43 EC must be interpreted as meaning that a collective action taken by a trade union (or a grouping of trade unions) against a private company in order to induce the latter to sign a contract is not excluded from its scope. collective aimed at preventing the exercise of the freedom of establishment.
In fact, art. 43 EC not only regulates the acts of public authorities, but also applies to other types of legislation aimed at regulating collectively subordinate work, self-employment and the provision of services. Since the working conditions in the various Member States are governed both by laws or regulations, and by collective agreements and other acts concluded by private individuals, a limitation of the prohibitions provided for by the aforementioned article to the acts of public authorities could create inequalities in the application of the same. Given that the organisation of collective actions by workers' unions falls within the legal autonomy of which these bodies, which are not under public law, have thanks to the freedom of association recognised, by national law, and that such collective actions are inseparably connected to the collective agreement of which the unions are pursuing the conclusion, these collective actions fall within the scope of application of art. 43 EC.

2. Art. 43 EC must be interpreted as meaning that collective actions aimed at inducing a private company established in a Member State to sign a collective bargaining agreement with a trade union based in the same State and to apply the clauses provided for by this contract to employees of a subsidiary of that company and established in another Member State constitute restrictions within the meaning of the above-mentioned article. Indeed, a collective action has the effect of discouraging, if not nullifying, the exercise by an undertaking of its freedom of establishment, since it prevents it from benefiting, in the host Member State, from the same treatment as other economic operators established in that State. Similarly, such a collective action, aimed at preventing shipowners from registering their ships in a State other than that of which the actual owners of such ships are nationals, must at least be considered capable of limiting the exercise, from part of a company, its freedom of establishment.