Opinion of the Advocate General — ECLI:EU:C:2007:292
Date: 2007-05-23
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services;Transport
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary of the Judgment 1. Freedom of movement for persons – Freedom of establishment – Provisions of the Treaty – Scope (Art. 43 EC) 2. Community law – Principles – Fundamental rights – Right to take collective action – Reconciliation with the requirements relating to fundamental rights guaranteed by the Treaty (Art. 43 EC) 3. Freedom of movement for persons – Freedom of establishment – Provisions of the Treaty – Scope ratione personae (Art. 43 EC) 4. Freedom of movement for persons – Freedom of establishment – Restrictions – Collective action by a trade union seeking to induce a private undertaking to conclude a collective work agreement (Art. 43 EC) 1. On a proper interpretation of Article 43 EC, collective action initiated by a trade union or a group of trade unions against a private undertaking in order to induce that undertaking to enter into a collective agreement, the terms of which are liable to deter it from exercising freedom of establishment, does not in principle fall outside the scope of that article. Article 43 EC applies not only to the actions of public authorities but extends also to rules of any other nature aimed at regulating in a collective manner gainful employment, self-employment and the provision of services. Since working conditions in the different Member States are governed sometimes by provisions laid down by law or regulation and sometimes by collective agreements and other acts concluded or adopted by private persons, limiting application of the prohibitions laid down by that article to acts of a public authority would risk creating inequality in its application. Since the organisation of collective action by trade unions must be regarded as covered by the legal autonomy which those organisations, which are not public law entities, enjoy pursuant to the trade union rights accorded to them, inter alia, by national law, and since those collective actions are inextricably linked to the collective agreement which the trade unions are seeking to conclude, those collective actions fall, in principle, within the scope of Article 43 EC. (see paras 33-37, 55, operative part 1) 2. The right to take collective action, including the right to strike, is recognised both by various international instruments which the Member States have signed or cooperated in, such as the European Social Charter, to which, moreover, express reference is made in Article 136 EC, and Convention No 87 concerning Freedom of Association and Protection of the Right to Organise, adopted in 1948 by the International Labour Organisation, and by instruments developed by those Member States at Community level or in the context of the European Union, such as the Community Charter of the Fundamental Social Rights of Workers adopted in 1989, which is also referred to in Article 136 EC, and the Charter of Fundamental Rights of the European Union. Although that right, including the right to strike, must therefore be recognised as a fundamental right which forms an integral part of the general principles of Community law the observance of which the Court ensures, the exercise of that right may none the less be subject to certain restrictions. As is reaffirmed by Article 28 of the Charter of Fundamental Rights of the European Union, it is to be protected in accordance with Community law and national law and practices. In that regard, even if the protection of fundamental rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty, the exercise such rights does not fall outside the scope of the provisions of the Treaty and must be reconciled with the requirements relating to rights protected under the Treaty and in accordance with the principle of proportionality. It follows that the fundamental nature of the right to take collective action is not such as to render Article 43 EC inapplicable to such an action, initiated against an undertaking in order to induce that undertaking to enter into a collective agreement, the terms of which are liable to deter it from exercising freedom of establishment. (see paras 43-47) 3. Article 43 EC is such as to confer rights on a private undertaking which may be relied on against a trade union or an association of trade unions. The abolition, as between Member States, of obstacles to freedom of movement for persons and freedom to provide services would be compromised if the abolition of State barriers could be neutralised by obstacles resulting from the exercise, by associations or organisations not governed by public law, of their legal autonomy. Moreover, the fact that certain provisions of the Treaty are formally addressed to the Member States does not prevent rights from being conferred at the same time on any individual who has an interest in compliance with the obligations thus laid down. Furthermore, the prohibition on prejudicing a fundamental freedom laid down in a provision of the Treaty that is mandatory in nature applies in particular to all agreements intended to regulate paid labour collectively. (see paras 57-58, 66, operative part 2) 4. Article 43 EC is to be interpreted to the effect that collective actions which seek to induce a private undertaking whose registered office is in a given Member State to enter into a collective work agreement with a trade union established in that State and to apply the terms set out in that agreement to the employees of a subsidiary of that undertaking established in another Member State, constitute restrictions within the meaning of that article. Such collective action has the effect of making less attractive, or even pointless, the exercise by an undertaking of its right to freedom of establishment, inasmuch as it prevents that undertaking from enjoying the same treatment in the host Member State as other economic operators established in that State. Similarly, such collective action, seeking to prevent shipowners from registering their vessels in a State other than that of which the beneficial owners of those vessels are nationals, must be considered to be at least liable to restrict an undertaking’s exercise of its right of freedom of establishment. Those restrictions may, in principle, be justified by an overriding reason of public interest, such as the protection of workers, provided that it is established that the restriction is suitable for ensuring the attainment of the legitimate objective pursued and does not go beyond what is necessary to achieve that objective. (see paras 72-74, 90, operative part 3)