Informal Politics, Formalised Law and the ‘Social Deficit’ of European Integration: Reflections after the Judgments of the ECJ in Viking and Laval

• Author: Florian Rödl,Christian Joerges
• DOI: http://doi.org/10.1111/j.1468-0386.2008.00448.x
• Date: 01 January 2009
• Published date: 01 January 2009

Informal Politics, Formalised Law and the

‘Social Deficit’ of European Integration:

Reflections after the Judgments of the ECJ

in Viking and Laval

Christian Joerges and Florian Rödl*

Abstract: The judgments of the European Court of Justice (ECJ) of December 2008 in

Viking and Laval on the compatibility of national collective labour law with European

prerogatives have caused quite a heated critical debate. This article seeks to put this

debate in constitutional perspectives. In its first part, it reconstructs in legal categories

what Fritz W. Scharpf has characterised as a decoupling of economic integration from the

various welfare traditions of the Member States. European constitutionalism, it is sub-

mitted, is bound to respond to this problématique. The second part develops a perspective

within which such a response can be found. That perspective is a supranational European

conflict of laws which seeks to realise what the draft Constitutional Treaty had called the

‘motto of the union’: unitas in pluralitate. Within that framework, the third part analyses

two seemingly contradictory trends, namely, first, albeit very briefly, the turn to ‘soft’

modes of governance in the realm of social policy and then, in much greater detail, the

ECJ’s ‘hard’ interpretations of the supremacy of European freedoms and its strict inter-

pretation of pertinent secondary legislation. The conflict-of-laws approach would suggest

a greater respect for national autonomy, in particular, in view of the limited EU compe-

tences in the field of labour law.

Introductory Remarks

‘Social Europe’ has become an intensively discussed topic. The Maastricht Treaty,

Amsterdam Treaty and Lisbon Council of 2000, together with the Convention on the

Future of Europe, have constituted the bases of vital turning points within relevant

debates. Today, however, with the Lisbon Reform Treaty awaiting ratification, public

attention has shifted from treaty amendments and constitutional deliberations to the

European Court of Justice (ECJ). With the two landmark decisions in Viking1and

* Universität Bremen, Zentrum für Europäische Rechtspolitik. We are indebted to the unusually extensive,

critical, constructive and encouraging comments by the two reviewers of this journal. The usual disclaimer,

however, remains applicable.

1Case C-438/05, International Transport Workers’ Federation, Finnish Seamen’s Union v Viking Line ABP,

OÜ Viking Line Eesti, judgment of 11 December 2007.

European Law Journal, Vol. 15, No. 1, January 2009, pp. 1–19.

© 2009 The Authors

Journal compilation © 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

Laval,2most recently joined and complemented by Rüffert and Luxembourg,3the ECJ

has reminded us that the hard law of negative integration can still be brought to bear

where political processes have proven to be slow and cumbersome, and the benefits of

soft law mechanisms remain obscure.

‘Social Europe’, ie the ensemble of European social and labour law and policy and

social rights, has become a wide and opaque field of such complexity that generalists

in European law, let alone students of other sub-disciplines, tend to shy away from

intervening in the dominating discourses. In our view, this is unfortunate because the

formation of the ‘social’ and the ‘economic’ are contemporaneous, and the outcome of

this dual process is of vital significance for the state of the European Constitution. This

article will address these interdependencies. We will therefore start by developing a

theoretical framework within which the project of ‘social Europe’ can be observed and

assessed. In section I, we will submit a reconstruction of what we call the ‘social deficit’

in the original design of the European Economic Community, arguing that a credible

response to this deficit would be a pre-condition for the democratic legitimacy of the

intensified integration project; alternatively, we will underline the need to link the rule

of law with democracy and social justice. Our second step will focus on the constitu-

tional forms through which such linkages can be institutionalised. As we will argue in

section II, their realisation requires a re-conceptualisation of European law as a new

type of supranational conflict of laws. This vision is contrasted in section III, first with

the steps towards Social Europe envisaged in the draft Constitutional Treaty, and then

with the principles established in Viking and Laval.

I European Integration and Democracy: A Legacy of Unresolved Tensions4

The project of European integration was launched not as an experiment in suprana-

tional democracy, but in the aftermath of the Second World War and its devastating

effects on the European economies. It was intended to serve as a means whereby lasting

peace among former enemies could be ensured, and had as its design an integration

strategy which would mitigate the significant differences between objectives and con-

cerns of Germany, on the one hand, and those of the allied victors, on the other.5This

was accomplished through a primarily economic and technocratic integration strategy.

That choice certainly did not come as a surprise. With hindsight, however, the impli-

cations of this choice, which were hardly foreseeable and certainly not a salient issue

half a century ago, become apparent. This is true for both the queries on which our

analysis will focus.

2Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareför-

bundet, avd. 1, Svenska Elektrikerförbundet, judgment of 18 December 2007.

3Case C-346/06, Rechtsanwalt Dr. Dirk Rüffert v Land Niedersachsen, judgment of 3 April 2008; Case

C-319/06, Commission v Luxembourg, judgment of 19 June 2008. On Rüffert see our remarks in n 81 below;

we refrain from a discussion of the Luxembourg ruling, in which we cannot find any encouraging new

signals.

4The following argument is more extensively developed in Ch. Joerges and F. Rödl, ‘The “Social Market

Economy” as Europe’s Social Model?’, in L. Magnusson and B. Stråth (eds), A European Social Citizenship?

Pre-conditions for Future Policies in Historical Light (Lang, 2005), 125–158 and in Ch. Joerges, ‘What is Left

of the European Economic Constitution? A Melancholic Eulogy’, (2005) 30 European Law Review 461.

5Students of European law tend overly to focus their analyses on the history of ‘institutionalised Europe’

rather than on the diverse histories of the Member States, their complex relations and the legacies of

inherited conflicts, as well as the generation of new ones.

European Law Journal Volume 15

© 2009 The Authors

2Journal compilation © 2009 Blackwell Publishing Ltd.