Debating Viking and Laval - why the ECJ rulings show we need to change the law to guarantee workers' rights

The Parliament today debated a report by Swedish Social Democrat Jan Andersson, looking at the effects of the recent rulings, in particular - Viking, Laval, Rüffert and Luxembourg - by the European Court of Justice. These cases have, rightly, caused a great deal of consternation amongst trade unions in that the court seems to have given a higher priority to the freedom to provide services to the right to join a trade union, negotiate and enforce collective agreements and take industrial action.

For instance, in the “Laval” judgment of 18 December 2007, the ECJ ruled that a service provider from another Member State is not obliged to respect local collective agreements that aren’t legally obligatory on third parties. The answer is surely to give collective agreements recognition in national legislation, as is done in many countries. Then, any service provider from another Member State would be obliged by law to respect national collective agreements when providing services in the country in question.

In the Ruffert case, the Court accepted a national court ruling to overturn a measure requiring companies supplying a public sector institution to pay a minimum wage, on the grounds that: a) the “Building and public works collective agreement" only applied to public contracts and so covered only part of the construction sector; and b) there was no evidence to show that construction workers on public works needed more protection than those on private works. The answer is surely to make such requirements binding also on the private sector. Indeed, it is surely an anomaly that it doesn’t!

In this same judgement, with reference to the Posted Workers Directive (PWD), the Court said that the collective agreement did not fix a minimum rate of pay in accordance with any of the procedures laid down in the Directive (e.g. by law, regulation or universally binding collective agreements). It had not been declared universally applicable, as required by the Directive, even though there is a system for doing so in Germany. Again, the answer is surely to declare the agreement to be universally applicable, as provided for in the directive.

Some have suggested that the problem could be solved by having a new Social Protocol, annexed to the treaties. This would be very welcome but, in practice, would require the unanimous support of all Member States and would hence be extremely difficult to obtain.

We should be clear that not much is to be gained from blaming the Court or suppose that the Court has an anti-social bias – after all, the court merely clarifies what the state of the law is – rather, we should focus our attention on rectifying the underlying legal situation. In other words, the Laval, Ruffert, Luxembourg and other judgments tell us that it is the law, not the Court, that is the ass, in allowing the court to make an extremely minimalist interpretation of the PWD. Given that the ECJ rulings reveal that existing laws are inadequate, it is up to us to change the law - broadening the legal basis of the PWD to include a reference to the free movement of workers and to ensure that the PWD does not allow companies to undercut wages and working conditions in host countries.

The Andersson report is a useful contribution to this controversial and highly legally complex debate. Amongst its conclusions are a recommendation that EU countries should properly enforce the PWD, and a demand that the Commission draft legislative proposals to deal with the legal loopholes thrown up by the judgments and to prevent any conflicting interpretation of the law. Indeed, this is a point that should be part of our campaign in next year's European elections; that we will use our power to vote against the new Commission if they do not include the necessary legislative proposals in their first work programme.

The Commission has made encouraging noises in this regard. In April, a Commission statement emphasised that the freedom to provide services did not contradict and was not superior to the right to strike, organise and join a trade union or negotiate collective bargaining agreements. We need to ensure that they follow up their words with action.