International Transport Workers' Federation and another v Viking line ABP (C-438/05)
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE GLOSTER, DBE,Mrs Justice Gloster, DBE |
| Judgment Date | 16 June 2005 |
| Neutral Citation | [2005] EWHC 1222 (Comm) |
| Docket Number | Case No: 2004 Folio 684 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 16 June 2005 |
[2005] EWHC 1222 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Mrs Justice Gloster, DBE
Case No: 2004 Folio 684
Mr Charles Hollander QC, Mr Mark Hoskins and Mr Colin West (instructed by Messrs Ross & Co) for the Claimant
Mr David Vaughan QC and Ms Kassie Smith (instructed by the Legal Department, ITF) for the 1 st Defendant
Ms Helen Davies (instructed by Messrs Hunton & Williams) for the 2 nd Defendant
Hearing dates: 25 th January 2005—27 th January 2005, 31 st January 2005—3 rd February 2005,
th February 2005—9th February 2005 and 14th February 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mrs Justice Gloster, DBEIntroduction and parties
Viking and its claim
This is the trial of an action in which the claimant, Viking Line ABP ("Viking"), a company incorporated and registered under the laws of Finland, seeks certain declaratory and injunctive relief against the first and second Defendants, respectively the International Transport Workers' Federation ("the ITF") and The Finnish Seamen's Union ("the FSU"). At the hearing Viking were represented by Mr Charles Hollander QC, Mr Mark Hoskins and Mr Colin West; the ITF by Mr David Vaughan QC and Ms Kassie Smith and the FSU by Ms Helen Davies.
Viking is the 13 th largest passenger shipping company in the world. It is the registered owner of a passenger and cargo ferry, the Rosella, the subject of this action, ("the Rosella" or "the Vessel") which is currently a Finnish flagged vessel with a predominantly Finnish crew. Since 17 August 2003, the Rosella has traded on the route between Helsinki in Finland and Tallinn in Estonia. It owns and manages six other vessels, all on routes between Finland and the Nordic states of which one, the Cinderella, was reflagged to Sweden on 1 September 2003 after cooperation negotiations with the unions. Finland has been a member of the EU since 1995. Estonia became a member on 1 May 2004.
It is Viking's case that it has been unable to make any money on the Helsinki-Tallinn route and that the Rosella is loss-making. It contends that its principal competitors on the route man their vessels with Estonian crews, which are significantly cheaper than Finnish crews. Viking's stated position in the action is that it wishes to reflag the Rosella under the Estonian flag in order to man the vessel with an Estonian crew. Viking's stance is that it cannot continue with a position where the Rosella is loss-making and that, if it is not able to reflag, it will need to sell the Rosella. Its stated position is that, unless this Court grants the declarations and injunctions which Viking seeks in its Amended Particulars of Claim, it will not be able to reflag the Rosella, because of anticipated strike action by the FSU, and action by the ITF, effectively requiring ITF affiliates in other jurisdictions, which Viking vessels visit, to participate in concerted boycott and other industrial action against the Rosella and other Viking vessels. Viking contends that any such action by the FSU and the ITF would be contrary (a) to Article 43 of the Treaty establishing the European Community ("EC"), (the principle of the freedom of establishment); (b) to Article 39 EC, (the principle of the free movement of workers); or (c) Article 1 of Council Regulation 4055/86/EEC, (applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries).
Viking's case is that it wishes to take steps to permit it to reflag the Rosella as soon as practicable after 1 March 2005.
The FSU
The FSU is an autonomous Finnish trade union representing seamen. It currently has about 10,000 members. It is based in Helsinki, Finland and has a few other offices elsewhere in Finland. It is a member of the Central Organisation of Finnish Trade Unions ("the SAK"). It has no assets or other physical presence in the U.K. Its only connection with the U.K. is that it is an autonomous national affiliate of the First Defendant, the ITF. It is similarly an affiliate of the European Transport Federation ("the ETF") which is based in Brussels and the Nordic Transport Workers Federation ("the NTF"). The activities of the FSU include negotiating terms of collective bargaining agreements with shipowners' associations in Finland, and also directly with individual shipowners with regard to pay and terms and conditions onboard vessels owned in Finland and/or that operate into or out of ports in Finland. In this context, the FSU frequently concludes such agreements for non-Finnish owned vessels, with non-Finnish employers and/or with non-Finnish crew, even though it does not have any members onboard the vessels. It has also in the past initiated industrial action in Finland against such non-Finnish owned or flagged vessels (including Estonian flagged vessels), for the purpose of securing acceptable collective agreements, and has been held by the Finnish Supreme Court to have been perfectly entitled to do so. By so doing, the FSU seeks to safeguard the level of terms and conditions of employment and the living standard of all seafarers working on vessels trading in the Baltic and Nordic area, regardless of their nationality, and also to safeguard the job opportunities of its members. Thus its activities are not confined to negotiating on behalf of its members with their respective or prospective employers, or confined to taking industrial action in cases in which only its members are directly involved.
The ITF
The ITF is a global federation of transport workers' unions with its Secretariat based in London. It has described its functions as, inter alia, co-ordinating industrial action on a worldwide basis. Its aims and activities were described by David Cockroft, the General Secretary of the ITF, who gave evidence before me. The ITF was created in 1896 following solidarity strike action between seafarers' and dockers' unions in Rotterdam. The early years of the ITF were dominated by seafarers and dockers until the turn of the century when the membership profile began to change. Today, seafarers and dockers constitute approximately 22 per cent of the ITF membership, the largest memberships being in road transport and in railways. The headquarters of the ITF have been in England since 1938, having previously moved from Berlin and Amsterdam in response to the growth of Nazism. Membership of the ITF is open to any independent and democratic trade union, federation or association of trade unions with members in the transport sector. Currently there are approximately 600 trade unions in more than 140 countries around the world affiliated to the ITF. Together these unions represent over 4.6 million transport workers. The membership of the ITF is divided up into eight industrial sections. Each section has its own network of specialist committees and conferences and has a high degree of autonomy in policy making. The eight industrial sections cover: (1) railways workers; (2) road transport workers; (3) inland navigation workers; (4) dockers; (5) seafarers; (6) fisheries; (7) civil aviation; and (8) tourism service workers. There is also a special department of the ITF known as the Special Seafarers' Department ("SSD"). Alongside the industrial sections, the ITF's membership is grouped into five distinct geographical regions: (1) Africa; (2) Asia-Pacific; (3) Europe; (4) Latin America and the Caribbean; and (5) North America.
The supreme authority of the ITF is its Congress which consists of representatives of the ITF's affiliates known as delegates. Congress meets once every four years and is the main policy making body of the ITF. Congress elects a President and five Vice-Presidents. Congress also elects the ITF's General Secretary who is responsible for the ITF's Secretariat.
Next in authority to Congress is the Executive Board which currently consists of 37 members elected by Congress plus the General Secretary. The ITF operates pursuant to its Constitution. The current terms of the ITF's Constitution are those approved by the 40 th Congress held in Vancouver in August 2002. Congress alone has the authority to amend the ITF's Constitution. A description of the ITF is contained in the preamble to the Constitution which states that it is:
"… a free trade union body, established to defend and further internationally the economic and social interests of transport workers of all kinds, and their trade unions. It stands for the defence of democracy and freedom and is opposed to colonialism, imperialism, totalitarianism and aggression in all their forms and to any discrimination based on gender, nationality, race or colour, age, sexual orientation, disability or beliefs."
The aims and objectives of the ITF are set out in rule I(2) of its Constitution. These are to promote respect for trade union and human rights worldwide; to work for peace based on social justice and economic progress; to help its affiliated unions defend the interests of their members; to provide research and information services to its affiliates; and to provide general assistance to transport workers in difficulty. Although the range of ITF activities is very wide, they can be divided into three categories: representation (in relation to employer and government organisations); information (provided to affiliates regarding international queries); and practical solidarity.
The methods by which the ITF seeks to achieve its aims are set out in rule I(3) of the Constitution. So far...
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