Free Movement and Labour Rights: Squaring the Circle?

Abstract

When the Treaty of Rome was signed in 1957, its main focus was on creating a single market where free movement of goods, persons, services and capital could be ensured. It therefore regarded labour above all as a factor of production in respect of which the principle of free movement was to apply. The Treaty did contain a Title on Social Policy but its content was derisory. Subsequent Treaty amendments and the emergence of a body of secondary legislation helped to adjust this perspective on labour issues and developed what the Commission describes as the European Social Model. However, that very social model is now under threat. The threat stems from a variety of sources: concerns about the rigidity of labour law has led to pressure for greater flexibility, the eurozone crisis has led to major reform of a number of national systems of labour law, and, for the purposes of this paper, the decisions of the Court of Justice in Viking and Laval. Against the backcloth of the eurozone crisis, the Court’s unwillingness to engage in a genuine balancing between the economic and social dimension of the EU, meant that these cases became totemic for the trade union movement of all that was bad about the EU. The Monti II proposal was intended to help address some of these problems; it was roundly rejected by the national legislatures and received the first yellow card under the new Lisbon procedure. The aim of this paper is to consider the various ways of addressing the problems generated by the decisions in Viking and Laval in the light of the Monti II proposal.