The CJEU and Fundamental Social Rights: a bridge too far or completing the internal market?

• Date: 01 January 2011
• Author: John Deignan

The CJEU and Fundamental Social Rights:

a Bridge too far or Completing the Internal

Market?

JO HN D EIGN AN

Introduction

In Context: A Snapshot

It is well known that that the European Economic Community (EEC) was

established primarily as an economic and commercial entity; fundam ental

rights, amon gst others, w ere not deemed to be with in the scope of

application of EEC law.1Given the fledgling polity that was the EEC at that

time, this seemed to fit the bill. Forging stronger economic ties and breaking

down barriers to trade were the orders of the day. Indeed, they were deemed

steep enough challenges in and of themselves. This was fitting at the time,

but then the EEC began to grow, develop and, all of a sudden, morph into

something which we had previously neglected to recognise, or, alternatively,

could not have believed to be true. With the handing down of two seminal

decisions of the Court of Ju stice (CJEU) in the early 1960s,2the trans -

formation gained momentum. Just as t he CJEU’s early case law proved to

be pivotal to its (and the EU’s) latter development and transformation, we

may now have reached another critical juncture in the EU’s develo pment,

one where two roads diverge and, indeed, one where choosing the road less

travelled could make all the difference, to borrow the words famously

penned by Robert Frost.3

The development of “social” r ights has undergone a meteoric rise over

the years, from being close to non-existent at the EEC’s inception to being

recognised as core to the traditions of the Member States and, thus, to the

Union. As part of this pr ocess, the social agenda of the EU has grown in

importance and stature, propelled by a raft of legislation.4In particular, the

Lisbon process has included a social limb whose aim i s to modernise the

1What was formerly called European Community (EC) law shall be referred to as EU

law in this paper, (pre- and post-Lisbon) given the changes brought about by the

recent ratification of the Lisbon Treaty.

2Hereinafter referred to as the “CJEU” or the “Cou rt”. These terms shall be used

interchangeably.

3Robert Frost, The Road Not Taken, Mountain Interval Collection, 1920

4See for example, D irective (EC) No 2000/78, the so-ca lled “Framework Directive”

which was hailed as a mom entous step forward in terms of equality legislat ion. On

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European Social Model, invest in people and combat social exclusion.5

Fundamental r ights were recognised as “general principle s of Community

law, whose observance the Court ensures”,6as far back as 1969. Fast-

forward to the present day and we observe t hat funda mental ri ghts have

been cited time and time again by the CJEU as binding principles of EU law.7

Equally, the ratification of the Lisbon Treaty and the conferra l of binding

status upon the Charter of Fundamental Rights (CFR) represent further

milestones in redress ing the perceived imbalance bet ween economic and

social rights.8At a cursory glance then, there would appear to be little cause

for alarm.

However, as part of the radical transform ation—which encompasses a

certain fuzziness regarding where the EU’s competence ends and State

sovereignty remains—we have also witnessed a significant change in the role

of the CJEU. From the moment the Court declared the principle of direct

effect in Van Gend en Loos9and the doctrine of supremacy in Costa v

ENEL soon thereafter,10 it has redefined the lega l order. Some argue that

such a finding was written in the Treaty, while many still view it as unfettered

judicial activism.11 In any event, in a similar vein to taking those landmark

steps in the early years, the CJEU may well be embarking upon a trajectory

of high constitutional importance if we consider recent judgments.

The pur pose of this article is to investigate whether it can be cogently

argued that the CJEU has drawn a distinction between the extent to which

fundamental social rights, of which the right t o strike is one such r ight of

high importance, have been interpreted as lesser or less fundamental rights

discrimination s ee also Directives (EC) No 2006/ 54 on equal treatment of men and

women in employment and also 2000/43 on equal treatment betwe en per sons

irrespective of racial origi n. Discrimination law is one of the best exa mples of the

increasing importance devoted to social issues.

5See http://ec.europa.eu/information_society/eeurope/i2010/ict_and_lisbon/index_en.htm

6Stauder v City of Ulm (29/69) [1969] E.C.R. 419

7Zambrano v Office Nationale de l’emploi (Case C–34/09) (Judgment 8 March 2011—

not reported at time of writing) i s hugely significant in this sphere . Indeed, the

Opinion of AG Sharpston is excellent reading on the issues of fundamental rights and

EU citizenship.

8Charter of Fundamental Rights of the European Union, OJ 2000, C 364/1

9NV Algemene Transporten Expeditie Onderneming Van Gend en Loos v Netherlands

Inland Revenue Administration (26/62) [1963] E.C.R. 13

10 Costa v ENEL (6/64) [1964] E.C.R. 585

11 Indeed it is wid ely accepted that the Member States did not want nor envisage a

strong Court and that the Court’s transformation has been largely against the will of

the Member Stat es. But we must recognise tha t the arguments posited by th e CJEU

in Van Gend en Loos for direct effect were certainly strong, particularly regarding the

existence of the preliminary reference procedure in the Treaty. The Court’s recognition

of direct effect was more an issue of laying down a marker and “putting itself on the

map” th an anything e lse. Many arg ue that this judicially ac tivist leaning is still a

stand-out featur e of the Court. See P. Craig and G. De Búrca, EU La w: Text, Cases

and Materials, 4th edn (Oxford: Oxford University Press, 2007), Chapter 8

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when they clash with one of the fundamen tal fr eedoms enshrined in the

Treaty. While inve stigating this to pic, I shall also di scuss the many other

ostensible conflic ts that this clash of rights has spawned: the conflict

between the labour law approach used by the “old” Member States on the

one hand, as opposed to the single market approach adopted by the CJEU

on the other; the dichotomy between striving to complete the internal

market and trying to give the EU a more legitimate social face; and the

apparent clash between Treaty pro visions and minimum harmonisation

directives—to list but a few of the most salient examples.

Fundamental Social Rights in an Economic Environment

Decisions in dispute: At a Glance

Recent CJEU decisions such as Laval,12 Viking,13 and Rüffert14 have re-

opened the long-running debate over the perceived clash between economic

rights and fundamental rights i n the EU legal order.15 In these cases the

CJEU was asked to adjudicate on the extent to which collective action may

justify a restriction of the exercise of the fundamental freedoms (discussed

in detail below). Whil e the Court was no d oubt faced with an unenviable

task in these seminal cases— not least becau se people’s livelihood s were at

stake—it seemed to add another layer of complexity and controversy to the

proceedings in the way it interpreted the relevant l egislation.16 Ad d issues

such as pickets, boycotts, collective action rights and horizontal effect of the

Treaty provisions and one begins to understand the panoply of issues raised

by these cases. In trying to reconcile these opposing rights, it was encumbered

with the foll owing conundru m: if it found in favour of the trade unio ns it

would be accused of removing the competitive advantage enjoyed by the

accession Member States—that is to say their cheaper labour and thus their

clearest path to prosperity; if it found in favour of the companies, it would

12 Laval un Partneri Ltd v Svenska Byggnadsarbetare forbundet and others (Case

C–341/05) [2007] E.C.R. I–11767. [Hereinafter Laval]

13 The International Transport Workers’ Federation (ITF) & The Finn ish Seamen’s

Union (FSU) v Viking Line ABP & Oü Viking Line Eesti (Case C–438/05) [2007]

E.C.R. I–10779. [Hereinafter Viking]

14 Dirk Rüffert v Land Niedersachsen (Case C–346/06) [2008] E.C.R. I–1989. [Hereinafter

Rüffert]

15 Francis Ja cobs, “Human Right s in the Euro pean Union: The Role of the Court of

Justice”, (2001) EL Rev, 331; Bruno de Witte, “The Past and F uture Role of the

European Court of Justice in the Prot ection of Human Rights” in P. Alston (ed) The

EU and Human Rights (Oxford: Oxford University Press, 1999)

16 Indeed the CJEU’s putative role as “legislator” has been the subject of criticism from

a number of leading lights: see R. Herzog and L. Gerken, “Stop t he European Court

of Justice”, EU Observer 10 September 2008, http://euobserver.com/9/26714, accessed

14/04/2010

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