3.3.3 A bird’s-eye view of the final Swedish ruling in the case

109. Laval claimed an interlocutory order declaring that the collective actions are unlawful and should cease, as well as compensation for damages. In the interlocutory decision the Arbetsdomstolen held that it was improbable that the collective actions taken by the trade unions were unlawful.1 Consequently, the Arbetsdomstolen refused to grant an interim injunction and the actions continued. In the main proceedings, the Arbetsdomstolen referred the case to the Court of Justice. On 2 December 2009 the Arbetsdomstolen delivered its final judgment.2

Firstly, the Arbetsdomstolen rejects Laval’s claim for a declaratory judgment that the actions of the trade unions are illegal. The Arbetsdomstolen is of the opinion that a declaratory judgment would not be of any considerable significance to Laval.3 In relation to the other claims of Laval, the Arbetsdomstolen delivers a comprehensive ruling. In this section, the judgment’s highlights are discussed in a concise and general way, whereas in the following sections, these highlights are discussed in more detail.

The Court of Justice unmistakably held that the collective actions at issue were unlawful because they were in conflict with Article 56 TFEU.4 The Arbetsdomstolen adopted this conclusion as a point of departure to determine the concrete legal consequences of this unlawfulness in line with private law – mainly labour law – of Swedish origin. The Arbetsdomstolen finds that the trade unions can be held liable on the basis of Article 56 TFEU. The consequences of this liability for the violation of Article 56 TFEU are regulated neither by Union law nor by Swedish law. The Arbetsdomstolen states, however, that the consequence of a violation of Article 56 TFEU should be the compensation for damages. In this case the Arbetsdomstolen analogously applies the provisions on damages adopted in the Swedish Co-Determination Act.

Further, the Arbetsdomstolen finds that there is another ground for liability, namely in the Co-Determination Act.5 The Court of Justice ruled that §42(3) Co-Determination Act concerned a discriminatory provision precluded by the Articles 52, 56 and 62 TFEU. Therefore, the Arbetsdomstolen had to disapply the provision in the case at hand. As a consequence, the collective actions had to be assessed in light of the remaining provisions of the Co-Determination Act. In particular in light of §41 of the Act, concerning the obligation to maintain industrial peace and §42(1), the Arbetsdomstolen deemed the collective actions unlawful. Consequently, the Arbetsdomstolen directly applied the liability regulations in the Co-Determination Act.

After having established liability on the basis of two autonomous grounds, the Arbetsdomstolen moves to the determination of the damages payable. The Swedish court awards only the punitive damages (allmänt skadestånd)6. With regard to Laval’s claim for pecuniary damages the Arbetsdomstolen considers that it is indeed plausible that pecuniary damage (ekonomisk skada) has been suffered, but that nonetheless Laval has neglected to provide evidence in this respect. Pecuniary damages, therefore, cannot be awarded.

Further, the Arbetsdomstolen rules on the division of the costs of litigation. It applies §18:4 of the Code of Judicial Procedure and balances Laval’s successful claims against the rejected ones. In doing so the Arbetsdomstolen ultimately takes stock: the trade unions are responsible for paying two thirds of Laval’s trial costs and legal fees; Laval should bear one third itself.