The legal mobilisation of EU market freedoms: strategic action or random noise?

Abstract

This article investigates litigation in the field of EU market liberalisation from the perspective of legal mobilisation research. It follows the assertion that litigation has seized on asymmetries in EU law to threaten cornerstones of national industrial relations regimes. The article investigates litigants and their legal counsel in 14 seminal cases. It identifies three distinct types of litigants: narrowly self-interested ‘one-shotters’, organised interests as ‘repeat players’, and ‘cause lawyers’. Key take-aways add to the literatures on both liberalisation and legal mobilisation. The prominence of purposeful, strategic action speaks against previous assertions of a purely self-sustaining logic of market liberalisation, and efforts by trade unions to reinforce national regulations protecting labour speak against the assumption that EU law is only employed by those seeking greater factor mobility. On the other hand, attention to litigants seeking market liberalisation calls into question the notion of law as a ‘weapon of the weak’ often pursued in legal mobilisation research.