Member States’ Sovereignty in the Socio-Economic Field: Fact or Fiction?

Abstract

The author assesses the case law of the Court of Justice of the European Union (the Court) in which the European business freedoms collide with national labour law. The approach of the Court will be scrutinised with the aim of discovering the extent to which the Court encroaches upon the Member States’ autonomy in the field of labour law. This topic became popular directly after the landmark decisions in Viking and Laval of December 2007. Both cases addressed conflicts that were related to socio-economic diversity in the European Union following the enlargements. In the end, the Court decided where the balance between the conflicting economic and social values had to be struck and, by doing so, did not grant any room of discretion to the Member States. Since then, the freedom of establishment and the freedom to provide services have obtruded themselves into the sphere of national labour law. The Court has broadened its jurisdiction in the socio-economic field not only in cross-border situations but also in internal situations via its interpretation of social policy Directives by virtue of Article 16 CFREU. The research shows that the Court is assessing the legitimacy of restrictions imposed by national labour law in seemingly different distinguishable ways since 2007. Although the Court does not seem to aspire to a uniform labour law system throughout the European Union, its approach applied in Viking and Laval cannot be considered a thing of the past. Due to poor reasoning, it is not clear when and where the Court draws the line. Since its rulings cannot readily (or even at all) be subject to political review, the ensuing legal uncertainty leads to anxiety about the Court being the ultimate decider in the socio-economic field.