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

19 Pages Posted: 1 Jan 2009

See all articles by Christian Joerges

Christian Joerges

University of Bremen - Faculty of Law; Hertie School of Governance

Florian Rödl

University of Bremen - Centre of European Law and Politics (ZERP)

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 submitted, 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 interpretation 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 competences in the field of labour law.

Suggested Citation

Joerges, Christian and Rödl, Florian, Informal Politics, Formalised Law and the Social Deficit of European Integration: Reflections after the Judgments of the ECJ in Viking and Laval. European Law Journal, Vol. 15, Issue 1, pp. 1-19, January 2009. Available at SSRN: https://ssrn.com/abstract=1321912 or http://dx.doi.org/10.1111/j.1468-0386.2008.00448.x

Christian Joerges (Contact Author)

University of Bremen - Faculty of Law ( email )

PO Box 330440
Bremen, 28334
Germany

Hertie School of Governance ( email )

Friedrichstraße 180
Berlin, 10117
Germany

Florian Rödl

University of Bremen - Centre of European Law and Politics (ZERP)

Universitaetsallee GW 1
Bremen, D-28359
Germany

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