Eclipse of the Constitution {Europe Nouveau Siècle}

Date01 March 2016
Published date01 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 Europes composite constitutional architecture
(at once European and national) resulting from playing down social rights qua constitu-
tional essentials.As the new jurisprudence obscuresEuropes 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 nd 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 Constitutionnot 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 inuenced (and reshaped) the governance of social policy in
the last decade and half. The leading cases are Laval and Viking;Mangold and
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 ExcellenceDistinguished 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 rst 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 Unionin 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.
All cases cited in the remainder.
European Law Journal, Vol. 22, No. 2, March 2016, pp. 132156.
© 2016 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
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 aspectsViking and Laval) while others
seem more interestedon the cases on the impact of EU legislation (positiveintegration as-
pectsMangold and Kücükdeveci).
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 justies its decisions, with general principles of lawplaying
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 reconguration of the case lawand of the very role of the CJEU. The fact thatthis
reconguration 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)
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 rm yet discrete enforcement of supranational law against national law
preventing cross-border economic activities and the sheltering of social and workers
rights as dened in each national legal order. The quartet represents a major break
to the extent that it favours the unhindering of economic freedoms as dened at the
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-
spectivein 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 LEuropa e il Lavoro.Solidarietae Conitto 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.
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 WorkersFederation (ITF) &
The Finnish Seamens 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 Relationsin A. Bücker and W. Warneck (eds.), Reconciling Fundamental So-
cial Rights and Economic Freedoms After Viking/Laval/Rüffert (Nomos, 2011), 195244; C. Barnard,
Using Procurement Law to Enforce Labour Standardsin G. Davidof and B. Langille (eds.), The Idea
of Labour Law (Oxford University Press, 2011), 256-72, at 259.
European Law Journal Volume 22
© 2016 John Wiley & Sons Ltd 133

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