Helsinki (17.09.1998 - Juhani Artto) The globalisation of corporate life is increasing the role of cross-border sympathetic industrial action. This means that the legal framework of cross-border sympathetic industrial action is becoming a vital issue for the trade union movement.

This is the starting point of a new study by the Finnish legal researcher Juri Aaltonen LL.M. commissioned by the Finnish Metalworkers Union. The 210-page study describes and compares conditions in the 15 Member States of the EU. The work was published in Finnish in late August and will be available in English in December.

The legal considerations pertaining to international sympathetic industrial action vary widely between the EU countries. However, the terms "sympathetic industrial action" and "international sympathetic industrial action" are known in all of them. There is no country in which an agreement to refrain from industrial action prevents the organisation of sympathetic industrial action.

The principal difference between the Member States lies in the relationship between those involved in sympathetic action and the primary conflict. In some countries the law requires that supporters have an interest in common with the object of their solidarity, while in others it is a condition of legality of sympathetic action that the supporters cannot themselves benefit from their action.

Up to now, sympathetic industrial action and its significance have obviously been marginal, Aaltonen notes. The rarity of sympathetic industrial action is the reason for the slow development of relevant legal norms. Exceptions are Sweden, Finland and Denmark, where sympathetic industrial action has played a very significant role in labour market practice (See the Trade Union News from Finland report of the Helsinki Metropolitan Area bus drivers' strike: 

Aaltonen observes that the legality of international industrial action is not completely clear in any EU country. In several member countries even the criteria for national sympathetic industrial action are unclear.

In his concluding chapter, Aaltonen groups the 15 countries into four groups. The "Northern" group comprises Finland, Sweden and Denmark, the "Southern" group includes the four Mediterranean countries and Portugal, the "Island States" are Great Britain and Ireland, while the remaining five are the "Central European States".

The Northern States

In the Nordic countries the possibility of resorting to industrial action depends on collective agreements, and on agreements at central organisation level in Sweden and Denmark. The emphasis is on respecting the industrial peace obligation which these agreements incorporate. This obligation does not prohibit supportive industrial action but the reason for such action may not be a legal dispute.

Collective agreements in the Nordic countries only restrict the right to arrange industry-wide strikes. Boycotts and selective strikes may take place lawfully.

In Finland and Sweden solidarity actions may be organised legally as so called genuinely supportive industrial actions. By contrast with the situation in several EU Member States, sympathetic action in the northern European countries is more likely to be legal if the interests of the supporters and of the supported are more distant from one another.

Denmark differs in this respect. Here the main rule is that international solidarity industrial action is illegal. An action may be legal, however, if the original action is legal and there is a sufficiently strong common interest connecting the supporters and the supported.

In Finland, Sweden and Denmark the legality of the original conflict is a condition of the legality of sympathetic action. In all three countries it would be legal to refuse to perform work which has been transferred from another country because of a strike there.

The Southern States

A common feature of all the southern States is the constitutional right to strike or to organise industrial action. In each country except Greece, however, it is individuals and not unions who enjoy this constitutional guarantee. In Greece, individuals have the right to strike but a strike may be organised only by a trade union.

In Italy, France, Spain and Portugal sympathetic industrial action can be legal only when the supporters and the supported have a common interest. Much unclarity prevails, however, over what counts as a common interest. In all of the southern EU countries sympathetic industrial action is illegal if the original strike is illegal.

In the southern group of Member States only Greece has specific statutes on international solidarity action. In the other States the general provisions on national sympathetic actions are applicable. These Member States approve of international solidarity strikes when the purpose is to support employees who are in dispute with one and same multinational employer but in another country. "If the reasons for the conflict are production, reorganising or removal from EU territory, then sympathetic industrial action would very likely be legal in all of the five southern countries", Aaltonen writes.

The Central European States

In Germany and Luxembourg the right to engage in industrial action is based on legislation. In Belgium the basis consists of agreements made between the labour market partners. In The Netherlands it is held that the European Social Charter safeguards the right to organise industrial action, but in Austria this right and its regulation are derived from jurisprudential literature.

In the Central European countries collective agreements include an industrial peace obligation but in Belgium this is not legally binding.

Belgium and Luxembourg differ from the other Member States in that the trade unions are not legal persons. This is why they cannot be brought before the courts for organising illegal strikes.

In the Central European group strikers have no obligation to give notice of industrial action in advance, but political strikes are always illegal.

In Germany sympathetic industrial action cannot be legal unless the supporting action affects a party to the primary dispute.

The Island States

The British and Irish common law legal system differs considerably from the legal systems of all other EU countries. Political industrial actions are prohibited in both countries.

In these two countries industrial action is protected by law only when it occurs according to an official procedure. In Britain this procedure is so complicated and demanding that in practice it is obviously impossible to comply with it completely.

In Britain and Ireland the employer has the right to dismiss participants even of a legal strike. However, the employer does not have the right to dismiss selectively, nor to re-hire selectively.

Finland is slightly more permissive than the EU average

Compared with Belgium, the Finnish system hampers industrial action, but compared with Great Britain the Finnish system is favourable to industrial action.

The most liberal element of the Finnish system is its attitude towards sympathetic industrial action, although it is not the most liberal system in the EU on this point either. Other aspects of Finnish industrial action regulations are not particularly favourable to industrial action.

As a whole, Aaltonen regards the Finnish system as slightly more permissive of industrial action than the EU average.

In his judgement the most important element of the Finnish system is the generally clear demarcation between legal and illegal industrial actions. The establishment of such legal safeguards provides what Aaltonen identifies as the centre point of collective bargaining - its predictability.