Evolutions in the Social Case Law of the Court of Justice

Abstract

The Court of Justice's social reputation was a cause for concern after the infamous Viking and Laval cases in 2007, leading to condemnations by the Committee of Expert of the ILO and the European Committee of Social Rights.¹ Its judgments in Rüffert and Commission v. Luxembourg in 2008 only worsened criticism from trade unions and many academic scholars of social law, social policy or industrial relations. However a certain evolution could have an impact on the Court's reasoning. In 2009 the EU Charter of Fundamental Rights entered into the primary legal order of the EU, highlighting, i.a., the recognition of the right to collective bargaining and collective action as fundamental social rights in Europe. Furthermore, there is the close connection between the EU Charter and the European Convention on Human Rights. The EU itself also faced (and still faces) criticism for the many austerity measures it recommended through economic governance to combat the economic and financial crisis. Consequently, 2015 seems to be a year of a subtle change or evolution in the internal market v. social protection reasoning of the CJEU. In the cases of ESA and RegiopPost the Court took a somewhat more social-friendly approach, which could herald a more balanced case law for the future.