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15 Eur. L.J. 1 (2009)

handle is hein.journals/eurlj15 and id is 1 raw text is: 

European Law Journal, Vol. 15, No. 1, January 2009, pp. 1-19.
0 2009 The Authors
Journal compilation C 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA



Informal Politics, Formalised Law and the

    'Social Deficit' of European Integration:

 Reflections after the Judgments of the ECJ

                      in   Viking and Laval


                 Christian Joerges and Florian Ridl*





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 sub-
mitted, is bound to respond to this probldmatique. 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 inter-
pretation 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 compe-
tences in the field of labour law.


Introductory  Remarks
'Social Europe' has become  an intensively discussed topic. The Maastricht Treaty,
Amsterdam   Treaty and Lisbon Council of 2000, together with the Convention on the
Future  of Europe, have constituted the bases of vital turning points within relevant
debates. Today, however, with the Lisbon Reform Treaty awaiting ratification, public
attention has shifted from treaty amendments and constitutional deliberations to the
European  Court  of Justice (ECJ). With the two landmark decisions in Viking' and



* Universitat Bremen, Zentrum fir Europaische Rechtspolitik. We are indebted to the unusually extensive,
  critical, constructive and encouraging comments by the two reviewers of this journal. The usual disclaimer,
  however, remains applicable.
  Case C-438/05, International Transport Workers' Federation, Finnish Seamen's Union v Viking Line ABP,
  OU  Viking Line Eesti, judgment of 11 December 2007.

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