POMFR: Viking, Laval and the Question if Anybody Cares

By Christopher Unseld

“Viking, Laval and Beyond”, edited by Mark Freedland and Jeremias Prassl, constitutes the first volume of Hart’s new series on “EU Law in the Member States”. In the series’ foreword Sacha Prechal lays out how crucial it is to understand the “genuine life of EU law in the Member States” since EU law – of course – is generally transposed, applied and enforced at the domestic level. But that is easier said than done. One needs good knowledge of EU law, domestic and comparative (EU) law to come close to some understanding of what Prechal calls EU law’s genuine life. And, let’s be honest, it is often hard enough to keep up with the current developments in EU law while not losing touch with domestic legal issues.

In some legal systems you do not have a choice whether to attempt this balancing act. In Germany, for example, an EU law professor would generally also be a professor for constitutional and/or administrative and/or public international law. This contributes to the problem – known also outside of Germany – that on the one hand EU law experts are busy keeping up with the developments in what one might call national “public law”. On the other hand experts for more specific fields of law still seem to hesitate when grasping the idea of European Constitutionalisation. The contributors to this book are apparent exceptions, since many of them are professors of national labour law with a broader interest in the European perspective. But the book, taken as a whole, points to a more skeptical perception of the state of union, when it comes to the interplay of national and EU law. At least this is a conclusion one might draw.

To explain why, it is best to examine the structure of the book. Instead of reviewing the whole book, I will concentrate in this post on what is new about the approach taken and neglect most of the specific legal arguments. The book contains three parts. Let us start with the unconventional Part II, in which each of the authors takes a “National Perspective”. In every chapter a national rapporteur tries to explain what the consequences (if any!) of Viking and Laval in the last seven years were. And according to the authors, the results are sobering. Only in two (Sweden and the UK) of the nine (additionally Poland, Norway, Italy, Greece, Germany, Estonia and Austria) countries investigated there was any real effect. Most contributors had to admit that neither the national legislator nor the national courts had even discussed or cited the cases. The worrisome message of this part of the book may therefore be summarized as follows: the national legal systems generally did not really react to the supposedly landmark decisions Viking and Laval.

One of the exceptions is Sweden, where the decision did cause “intense political and policy debates” (p. 256). The UK was the other outlier. This might be understandable if you consider that the UK’s legal system only provides for very limited legal protection of labour – none of it in the form of protection by a written constitution – and that British lawyers and judges are better prepared to pay attention to case-law than their counterparts in many other member states (hence, no wonder students all over Europe study with casebooks by Craig/de Búrca or Chalmers & co). Everywhere else the effect of Viking and Laval was – at best – marginal.

In light of this realisation it seems only logical that the CJEU is still very much worried about effet utile and the cooperation of national courts and administrations. The Court emphasized this in its most recent decision in Ferreira da Silva. In this case the Court stated for the very first time that a supreme court had breached its duty to make a preliminary reference under the CILFIT rules following Article 267 (3) TFEU.

But back to the book. Part I appears more or less conventional. The contributions take an “EU-Level Perspective” which allows for a broad reach. The editors also allow for a third, namely international dimension: Alan Bogg’s contribution takes an “International Labour Law Perspective” on the EU perspective. Vilija Velyvyte chooses to approach the whole issue from the ECHR’s perspective for the period after the EU’s accession. Her article’s objective might therefore share the same destiny of the neighbouring text’s objective, written by two anonymous members of the EU Commission (one assumes) who took part in drafting the rejected proposal for a Monti II Regulation and who use the pseudonym “The Adoptive Parents”. (As Norbert Reich wrote in another review of the book, one might ask “why [they] didn’t disclose their names?” or maybe more precisely, why (if) did the Commission prevent the disclosure of the authors’ identity?) Apart from this mystery, the “Adoptive Parents” chapter is also interesting for other reasons.

Indeed, the contribution of the Adoptive Parents conveys the frustration one must have felt in the Commission about the first successful use of the early warning mechanism (the so-called ‘yellow card’) against Monti II. This new subsidiarity mechanism was granted to the national parliaments by the Lisbon Treaty and was thought to get the national parliaments involved and the EU more politicized in order to tackle its democratic deficit. But when you think about it, from the EU’s legal perspective the CJEU’s case-law in Viking and Laval is the best proof that cross-border strikes should be a subject matter of EU regulation because factually it is already. This is where the so often missed “positive integration” could actually happen and counterbalance the CJEU’s perceived cold rationality of the common market. The EU democratic legislature could shape the way conflicts between workers and unions with employers using economic freedoms play out. Instead of complaining about the Court’s economic bias, one could have progressed – if only a little bit – into the direction of something called a Social Europe.

Instead however, member states’ parliaments objected to the Monti II proposal by pulling the subsidiarity card. From the Commission’s perspective this must have looked borderline schizophrenic. The great thing about this book (and about the whole approach of the new series) is that it helps readers to understand the different viewpoints and to contextualise those tensions between the EU and the member states. As already mentioned, the contributions of Part II (right after the Adoptive Parents’ chapter) show indeed how little influence and attention Viking and Laval enjoyed in the various member states (and Norway as a European Economic Area country). After reading those chapters, it is easier to understand the national parliaments’ position. Why fix something that is not broken?! Whereas Viking and Laval may be burnt into the collective memory of the Commission officials and of ‘national envoys’ in Brussels, there are good reasons to assume that this effect did not go beyond the EU bubble. Assuming this, the early warning mechanism has done a great job in bursting the bubble. In sum, this book – probably involuntarily to some degree – confronts the EU law community with some hard truths: it is still easier to prevent new EU laws even if that comes at the cost of being stuck with worse case-law.

Part III is the place to reflect on the clash between the EU and the national perspectives by giving some “Broader Horizontal Perspectives”. As should be clear by now, this is not an easy task. How can we connect the national non-experiences with the EU law perspective? Michal Bobek tackles this problem head on. In his humorous and contextual contribution he tries to explain what we should make of the apparent non-cooperation of national courts. He raises the important question whether we should trust the silence of the national courts (p. 325). The absence of open rebellion may be short of the conventional success story about how the CJEU won the cooperation of national courts. Bobek’s text is a real highlight of the book.

The other texts in Part III tend to deal more with the EU law perspective and could mostly have been placed in the first part. Therefore, before finishing, let me take up one substantial issue that runs like a common thread through the whole book. In the first part, Steve Weatherill criticizes Viking and Laval for being old-fashioned. He distinguishes between the good Court and the bad Court, the old Union and the new one. The new Court grants a broader margin of appreciation to the national courts and respects national idiosyncrasies in the field of fundamental rights protection (Schmidberger, Omega, Sayn-Wittgenstein). The old Court had only the economic dimension of the common market in mind and did not pay enough attention to other values. In Viking and Laval – according to Weatherill – the old Court anachronistically showed up again, paying little attention to all those things. As Dorota Leczykiewicz explains (p. 312-4) later in the book, Weatherill’s intuitive but maybe all too easy description of Viking and Laval as old-fashioned is not really convincing. The proportionality test as applied in Viking and Laval is more or less the only thing left for the CJEU in the absence of a functioning competence (like in Schmidberger and Omega) and considering the unwillingness of the national legislators to tackle the issue (Monti II).

Furthermore, it would also be wrong to read a laissez-faire attitude into this approach of the Luxembourg Court towards national courts. As Bogg’s contribution argues convincingly (p. 70-73), the problem lies less in the case to case differing margin of appreciation granted by the Court to domestic courts, but rather in the categorical decision to treat the balancing of fundamental rights between individuals as some kind of natural and neutral process left to judges. As the Court made clear in Omega, even human dignity can be balanced to some degree. And Sayn-Wittgenstein was less about the recognition of an Austrian constitutional idiosyncrasy than about the economic rationality of equality. To apply the proportionality test to these kind of issues resembles – as Bogg emphasizes as well – a “colonisation process” (p. 71) and only some kind of immunity from this economic rationality would make a difference.

In contrast to this, Eva Tscherner argues in her chapter on Austria that the CJEU more recently would rather tend to exclude collective agreements from the fundamental right’s application (p. 136). She infers this from decisions in Prigge and Tyrolean Airways which do not really go into detail about a possible breach of fundamental rights. The CJEU decided in those cases that the directive was not in breach with the disputed national provisions but that the directive was directly binding on the social partners. However, this decision does not imply a refusal of horizontal effect (see also Dorota Leczykiewicz’s contribution at p. 310): it is methodologically sound to ignore the fundamental rights here because the Court also emphasized that the directives specify the scope of the underlying fundamental rights (as in Mangold or Kücükdeveci). The Court rarely invents new legal innovations from the Charter or from general principles. Far more often the Court just uses the broader scope of application of fundamental rights to overcome the lacking horizontal effect of directives or to broaden their already existing scope. Thus, in the cited cases there was no need to do so. Therefore I would agree with Bernd Waas (p. 168) to start comparing Viking and Laval to our understanding of horizontal effect, like the “Drittwirkung” in Germany. Whereas the direct horizontal effect of the rights of worker unions is an explicit exception in the German Constitution (Article 9 (3)), in the EU it seems to be the other way around.

In a nutshell: “Viking, Laval and Beyond” gives a great insight into how little some “landmark” cases by the CJEU actually affect national legal systems. The new series – launched with this book – will try to further connect national discourses with the EU law discourse. But unless national courts start using the huge implications of this kind of broad precedents, the CJEU will probably not be feeling the urge to limit their scope. And as long as the EU legislator does not interfere either, we will be able to observe similar contradictions between “national EU law” and “European EU law” in the future.