In International Transport Workers' Federation and another v Viking Line ABP and another (Case C-438/05) – Butterworths Law Direct 11.12.07 the Court of Justice of the European Communities (Grand Chamber) has held, in a dispute concerning the right of a Finnish company to reflag one of its vessels under another European flag to reduce crewing costs, that (i) collective action (in this case strike action by trade unions) falls within the scope of article 43 EC; (ii) Article 43 EC is capable of conferring rights on a private undertaking which might be relied on against a trade union or an association of trade unions; and (iii) collective action constitutes a restriction which might be justified by an overriding reason of public interest provided that it is established that the restriction was suitable for ensuring the attainment of the legitimate objective pursued and did not go beyond what was necessary to achieve that objective.

In this case it could not be disputed that collective action such as that envisaged by the FSU (a union of Finnish seamen, affiliated to the ITF) had the effect of making less attractive, or even pointless, Viking's exercise of its right to freedom of establishment, in that such action prevented both Viking and its subsidiary from enjoying the same treatment in the host member state as other economic operators established in that state. Collective action therefore constituted a restriction on freedom of establishment within the meaning of art 43 EC.