On the “Social Deficit” of the European integration project and its perpetuation through the ECJ-Judgements in Viking and Laval

The December judgments of the ECJ in Viking and Laval on the compatibility of national collective labour law with European prerogatives have caused a quite heated critical debate. This paper seeks to put this debate in constitutional perspectives. In its first part it reconstructs in legal categories what Fritz W. Scharpf has characterized as a decoupling of economic integration from the various welfare traditions of the Member States. European constitutionalism, it is submitted, is bound to respond to this problématique. The second develops a perspective, within which such a response can be found. That perspective is a supranational European conflict of laws which seeks to realize 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 more detail, the ECJ’s “hard” interpretations of the supremacy of European freedoms and its strict interpretation of pertinent secondary legislation. The conflict-of-law approach would suggest a greater respect for national autonomy in particular in view of the limited EU competences in the field of labour law.

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