Eclipse of the Constitution {Europe Nouveau Siècle}

• DOI: http://doi.org/10.1111/eulj.12147
• Date: 01 March 2016
• Published date: 01 March 2016

Eclipse of the Constitution

{Europe Nouveau Siècle}

Leone Niglia*

Abstract: The Court of Justice of the European Union has come to adopt a peculiar mode

of balancing, revolving around a set of ‘general principles of law’, which results in key so-

cial rights at the core of the postwar constitutional settlement no longer being sheltered

from review by reference to supranational economic freedoms. It is submitted that this does

not only imply a kind of ideological restyling of European law, as noted in the literature

but, more fundamentally, the erosion of Europe’s composite constitutional architecture

(at once European and national) resulting from playing down social rights qua ‘constitu-

tional essentials’.As the new jurisprudence ‘obscures’Europe’s constitutional constellation,

it is submitted that the Court should rule under the constitution and not over it.

Sinks whoever raises the great stones

George Seferis (Poem ‘Mycenae’, 1935)

We have …reached the point …where we must take action to save the Constitution from the Court

and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Con-

stitution itself. We want a Supreme Court which will do justice under the Constitution—not over it.

Franklin D. Roosevelt (1937)

I Introduction

This article contributes to an ongoing, contentious debate on the meaning and conse-

quences of a line of rulings of the Court of Justice of the European Union (hereafter,

CJEU) which have deeply influenced (and reshaped) the governance of social policy in

the last decade and half. The leading cases are Laval and Viking;Mangold and

Kücükdeveci.

1

In all o f thes e case s, I argu e, the C JEU ha s undertaken an unprece-

dented assessment of the appropriateness of public intervention through state action in

* Research Professor, UC3M/European Union Funding ‘Connecting Excellence’Distinguished Senior Fellow

(Investigador Distinguido), Instituto Bartolomé de las Casas, Universitad Carlos III de Madrid, Spain.

* Thanks to the British Academy, the Carnegie Trust for the Universities of Scotland and the Italian Ministryo f

Education, University and Research (MIUR), for awards supporting research activities connected to this project.

This article is the third instalment of a series of essays on the state of European constitutional law; the first is

‘Form and Substance in European Constitutional Law: The Social Character of Indirect Effect’(2010) 16

European Law Journal, 439-457; the second is ‘Taking Private Law Rights Seriously --Of Balancing and the

Jurisprudence of the Court of Justice of the European Union’in L. Niglia (ed.) ‘Symposium --Balancing in

European Law: Anatomy of Judicial Practices’, (2013-2014) Cambridge Yearbook of European Legal Studies,

394-415. Thanks to anonymous referees and to Agustín J. Menéndez for their comments.

1

All cases cited in the remainder.

European Law Journal, Vol. 22, No. 2, March 2016, pp. 132–156.

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and 350 Main Street, Malden, MA 02148, USA

labour law relations. This marks a clear break with the tendency to exert self-restraint

which had characterised the case law of the CJEU on the matter before. Scholarship

tends to comment on thesedecisions separately, with some authors focusingon the cases

regarding free movement (negative integration aspects—Viking and Laval) while others

seem more interestedon the cases on the impact of EU legislation (positiveintegration as-

pects—Mangold and Kücükdeveci).

2

This article takes a new approach in that it rereads

these cases symbiotically and in parallel. We must do so because the quartet as a whole

epitomises the verysame problematic new patterns in the case law, which entail both ma-

terial changes in the role of social policy in European integration and formal changes in

the way in which the CJEU justifies its decisions, with ‘general principles of law’playing

a major role in furthering the material changes. The deep relation between formal and

material dimensions in the new jurisprudence is another aspectdeserving closer inspection

consideringthat, as I argue in the conclusion,the relevance of the transformationsthat the

quartet of cases bringsabout goes beyond the cases themselves. The quartetis herald of a

radical reconfiguration of the case lawand of the very role of the CJEU. The fact thatthis

reconfiguration has been concretised in such a sensitive and fundamental area as social

policy is by itself indicative of the fact that the change is relevant to the overall interplay

between supranational and national law.

The article is structured in four parts. In Section II I claim that the already men-

tioned quarter of cases (Viking, Laval, Mangold and Kücükdeveci)

3

has resulted in

the transformation of the constitutional matrix which had traditionally underpinned

the case law of the CJEU. At the core of this matrix was a delicate balance between

the firm yet discrete enforcement of supranational law against national law

preventing cross-border economic activities and the sheltering of social and workers’

rights as defined in each national legal order. The quartet represents a major break

to the extent that it favours the unhindering of economic freedoms as defined at the

2

For contributions to the ongoing discussion on these cases, including references to further CJEU cases in

line with the four decisions under consideration in this article, see e.g. D.Kukovec, ‘Law and the Periphery’

(2015) 21 European Law Journal, 406-428; J. Prassl and M. Freedland (eds.), EU Law in the Member States:

Viking,Laval,and Beyond (Hart, 2014); S. Weatherill ‘Viking Line and Laval: The EU Internal Market per-

spective’in Prassl and Freedland, just referred, 23-40; M. Everson, A Citizenship in Movement, (2014) 15

German Law Journal, 965-984; S. Giubboni, European Citizenship and Social Rights in Times of Crisis,

(2014) 15 German Law Journal, 935-964; S. Sciarra L’Europa e il Lavoro.Solidarieta’e Conflitto in Tempi

di Crisi (Roma, 2013); U. Bernitz and N. Reich, ‘Case No. A 268/04, The Labour Court, Sweden

(Arbetsdomstolen) Judgement No. 89/09 of 2 December 2009, Laval un Partneri Ltd.v.Svenska

Bygggnadsarbetareförbundet et al.’(2011) 48 Common Market Law Review, 603-23; K. Lenaerts and J.

Gutierrez-Fons ‘The Constitutional Allocation of Powers and General Principles of EU Law’(2010) 47

Common Market Law Review, 1629-1669, at 1636.

3

The focus of the article is on Case C-341/05 [2007] ECR-I 11767 (Laval) and Case C-144/04 [2005]

ECR I-9981 (Mangold). The critical issues that I raise in this article when commenting on Laval

and Mangold equally apply to C-438/05, The International Transport Workers’Federation (ITF) &

The Finnish Seamen’s Union (FSU) v Viking Line ABP and Oü Viking Line Eesti [2007] ECR I-

10779 (Viking) and to Case C-555/07, Kücükdeveci. For a discussion of the implications of the so-

called Laval quartet for industrial relations (including C-319/06, Commission v Luxembourg [2007] ECR

I-4323; C-346/06, Rechtsanwalt Dr.Dirk Rüffert v Land Niedersachsen [2008] ECR I-1989) see e.g. L.

Hayes, T. Novitz and H. Reed, ‘Applying the Laval Quartet in a UK Context: Chilling, Ripple and Dis-

ruptive Effects on Industrial Relations’in A. Bücker and W. Warneck (eds.), Reconciling Fundamental So-

cial Rights and Economic Freedoms After Viking/Laval/Rüffert (Nomos, 2011), 195–244; C. Barnard,

‘Using Procurement Law to Enforce Labour Standards’in G. Davidof and B. Langille (eds.), The Idea

of Labour Law (Oxford University Press, 2011), 256-72, at 259.

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