CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ

TEN YEARS AFTER THE VIKING JUDGMENT …

1. Introduction The Viking 1 judgment and, together with it, the almost simultaneous ruling in the case Laval, 2 both delivered by the Court of Justice of the EU (CJ) in December 2007, are undoubtedly among the most commented on 3 and perhaps even the most important judgments of the EU internal market law over the last decade. The controversy they sparked was due to the resulting victory of the fundamental freedoms of movement (services, establishment) in the EU internal market over the protection of collective social rights. These rights, although recognized by the CJ as fundamental rights, were tested in these decisions as potentially justifiable obstacles to the fundamental freedoms of movement and failed this test. This has prompted not only political aversion from the European Left and trade unions but also a number of doctrinal and theoretical-legal reservations from the academia. 4 Then, following the entry into force of the Treaty of Lisbon with its new EU aim of social market economy, its social horizontal clause of Article 9 TFEU and in particular its insertion of the Charter of Fundamental Rights (CFREU), the CJ has been summoned from many sides to re-evaluate its approach expressed in the so-called “Laval Quartet” 5 case law. However, the CJ kept referring to this case law as good precedent also after 2010 and therefore attracted repeated criticism for its reluctance to adapt its approach to the new value framework provided by the Lisbon Treaty. From time to time, on the other hand, the same Court raised hopes that such an adaptation was taking place and cases of clash between market freedoms and social rights would be handled differently than before. Such contrasting assessments indicate that the question of the right balance between economic freedoms and social rights is still unsatisfactorily answered by the CJ. This paper thus seeks to show where the CJ stands now, in particular in the light of the recent judgment in the AGET Iraklis case, 6 to assess the shift from the Viking-Laval approach and to ask whether the optimal solution has already been found. The first part of the present paper will therefore focus on the way in which the CJ tackled the conflict between market freedoms and social rights both in the Viking case and in its follow-up. The second part, in contrast to the first, will be devoted 1 Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti (Viking Line) EU:C:2007:772. 2 Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avdelning 1, Byggettan and Svenska Elektrikerförbundet EU:C:2007:809. 3 Google search offers currently (May 2017) for “Viking case“ and “Laval case“ altogether more than 55 million matches. For a list of major academic comments on the cases see in MCCANN, A. The CJEU onTrial: Economic Mobility and Social Justice. European Review of Private Law No 5/2014, p. 759, note 105. 4 Voices calling for refusal to comply with the CJEU rulings were not missing. See SCHARPF, F. “The only solution is to refuse to comply with ECJ rulings” (Interview). Social Europe Journal, Vol 4 issue 1, 6 April 2009, also MCCANN, op. cit. p. 732, 760. 5 The so-called “Laval Quartet” includes also the CJ’s judgments in the Case C-346/06 Dirk Rüffert v Land Niedersachsen EU:C:2008:189 and Case C-319/06 Commission of the European Communities v Grand Duchy of Luxemburg EU:C:2008:350. For a short outline of their content see e.g. PECINOVSKY, P. Evolutions in the Social Case Law of the Court of Justice. The Follow-Up Cases of the Laval Quartet: ESA and Regiopost. European Labour Law Journal Vol. 7 (2016) No. 2. 295-298. For their impact and further development see DE LA ROSA, S. La modernisation du cadre juridique du detachement et la jurisprudence Viking-Laval. Revue de l’Union européenne. No 596 Mars 2016, p. 151-156, also BÜCKER, A., WARNECK, W. Viking-Laval-Rüffert : Consequences and policy perspectives. European Trade Union Institute-Report 111 , Brussels: ETUI 2010. 6 Case C-201/15 Anonymi Geniki Etairia Tsimenton Iraklis (AGET Iraklis) v Ypourgos Ergasias, Koinonikis Asfalisis kai Koinonikis Allilengyis EU:C:2016:972.

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