The European Court of Justice and “Total Market” Thinking

Abstract

The controversial decisions of the Court of Justice of the European Union (CJEU) in the quartet of cases that are grouped under its “Laval/Viking jurisprudence” are rapidly becoming entrenched as a key dimension of the European Union (EU) constitutional imaginary. This comes with a certain “immunization” against challenge as they become much harder to treat as mistakes. In their elevated status they have aligned stances and expectational structures. They have also had significant impact on the “Nordic” models; Charles Woolfson shows, for example, how subsequent to the European Court of Justice (ECJ) decision, the rulings of the Swedish Labour court has “seem[ed] to confirm that the ‘Swedish model' has, at the very least, been significantly redefined, if not fundamentally altered, in the light of Laval. ” While EU lawyers largely sit it out in relative passivity, wondering what the fuss is really about, labor lawyers have been vocal in their disagreement. But the latter's voices in this debate—if we can call it such—have in turn been drowned out by the ululations of lawyers and theorists from the “new,” post-2004, EU countries loudly proclaiming a victory against the arrogance of the older Member States. If the workers of the Baltic states want to sell their labor—and their life—cheap, goes the “inclusionary” argument, why should they be constrained from doing so under protectionist regulatory policies that undercut their competitive advantage by those unwilling to rein in the exclusionary structures of social protection that limit access and opportunity for their workforce to join the Continent-wide economy? The massive impact that the decisions have had on the regulation of industrial relations in the countries of the European Union and on the position of the trade unions has hardly been ameliorated by the debacle that was the rapid withdrawal of the proposed Monti II Regulation in the face of resistance to it by national parliaments.