A. The Viking and Laval cases: national or European litigation?

The Laval case began in 2004 in the small Swedish town of Vaxholm, near Stockholm, when the Latvian construction firm Laval un Partneri won a call for tenders to renovate a school.Footnote ²⁴ The company posted around 30 Latvian workers in Sweden to do the work. According to the posted workers directive (96/71/CE), such workers must be paid at least the minimum wage applying in the host country. However, there is no legal minimum wage in Sweden: the minimum wage is negotiated in each company or sector by unions and employers. Therefore, the Swedish construction union contacted the Latvian employer to come to an agreement ensuring that the posted workers would be paid the usual wage.Footnote ²⁵ The negotiations stalled in autumn 2004, as the company refused to sign.

In response, the Swedish union launched multifaceted collective action (strike, boycott, blockade) that brought construction to a halt. The Latvian firm referred to the Swedish courts to end the collective action. The strategy of Laval un Partneri’s lawyers, who were covertly advised by lawyers at the Directorate-General (DG) for Internal Market of the European Commission,Footnote ²⁶ and bankrolled by the Swedish Employers Confederation,Footnote ²⁷ consisted in arguing that the union’s actions breached EU law and asking for the referral of the case to the CJEU.

As a result, in April 2005, the Swedish Labour Court drafted two questions for a preliminary ruling, which were referred to Luxembourg on 15 September 2005. The first question pertained to the compatibility of the union’s action with the freedom to provide services on the internal market, the posted workers directive and the non-discrimination principle. The second question pertained to the conformity of the Swedish law on co-determination with these same components of EU law. That law provides for an exemption to the ‘peace obligation’ (ie, no industrial action) for unions when a collective bargaining agreement with an employer has been secured. Indeed, it allows for industrial action against a foreign company, even when that company has signed a collective bargaining agreement in its country of origin, which was the case of Laval un Partneri in Latvia.

Like the Laval case, the dispute that sparked the Viking case began in a Scandinavian country, but this time in the maritime transport sector. The conflict was between the Finnish seamen’s union (FSU) and the Finnish company Viking Line, a ferry operator active mainly in the Baltic Sea. In October 2003, Viking Line announced that it wanted to have one of its ships on the Helsinki-Tallinn line registered in Estonia instead of Finland. Commonly known as using a ‘Flag of Convenience (FOC)’,Footnote ²⁸ this practice would have allowed Viking Line to hire seamen under Estonian labour law, and therefore to pay them far lower wages than in Finland. This reflagging therefore posed a direct threat to the working conditions and jobs of Finnish seamen. The FSU, which opposed the project, served a strike notice in November 2003. The notice was circulated by the International Transport Workers’ Federation (ITF), which urged its affiliates (seafarers and dockers) to boycott Viking Line ships.

In this highly unionised and well-organised sector at the transnational level,Footnote ²⁹ this threat led the shipping company to renounce the reflagging and turn to the courts. The employer’s lawyers referred to the English courts in August 2004, on the grounds that the ITF is headquartered in London. With this strategy of ‘forum shopping’, the lawyers were hoping that the English courts, which have a reputation for hostility towards union rights, would rule in their favour. Like their Swedish counterparts, they based their argument on EU law. According to them, by preventing the reflagging of Viking Line’s ship, the union boycott breached a fundamental legal principle of the internal market: the freedom of establishment. This strategy led the Court of Appeal, which the unions had referred to after a first judgement against them, to turn to the CJEU. The questions for a preliminary ruling, which the Registry received on 6 December 2005, concerned the conformity of the union’s action with internal market law, particularly regarding the freedom of establishment.

The two cases bear a number of similarities (geographical area, timeframe) and contain several European elements: they are transnational labour disputes in which employers’ lawyers used EU law to counter unions and national social protections,Footnote ³⁰ referred by national courts to the CJEU through questions for preliminary ruling. However, at the beginning, these elements alone did not give the cases a European dimension.

Indeed, for the Latvian, Swedish and Finnish employers, the main objective was to use EU market law to weaken the ability of the Scandinavian unions – among the strongest in the world – to initiate collective action to impose theirs terms in collective bargaining. This strategic use of EU law was also a way to circumvent the Nordic Labour Courts, by referring the Laval case to the CJEU, and by delocalising the Viking case to the Commercial Chamber of the High Court in London (it was indeed the ITF and the FSU, and not Viking Line, who asked in appeal to refer the case to the CJEU, hoping that European judges would be more protective of trade union rights than English judges).Footnote ³¹

For the unions involved in this litigation, the stakes at that stage of the proceedings were only about resisting employers’ mobilisations and defending their workers. Indeed, for the Swedish unions, the purpose was to regulate the construction market by setting the wages of workers posted in Sweden by foreign companies. For the Finnish seamen’s union, the goal was to protect members’ jobs by preventing the reflagging of Viking Line ships in Estonia. And for the ITF, the most important issue was to safeguard its longstanding international campaign against flags of convenience.

In other words, for both sides, the Viking and Laval cases started out as national and sectoral litigation resulting from a private and ultimately classic conflict between unions and employers on wages, jobs, and trade union freedoms. There was originally no talk of defining a right of transnational collective action, or of establishing whether economic freedoms take precedence over social rights in the EU legal order. Legally, what was at stake, rather, was to interpret the conformity of Swedish law with the posted workers directive, and to define the material scope of the freedom to provide services and the freedom of establishment within the internal market. This means it is not enough for social conflicts dealt with by national courts to be referred to Luxembourg for their implications to automatically concern social Europe as a whole: they have to be constructed as such by the actors mobilised in and around the cases. In this perspective, the next subpart examines the framing operations of the litigation performed by union, parliamentarian and academic actors, who shaped these cases as future major verdicts on social Europe.

B. The judicial mobilisation of unions to defend social Europe

In this subpart, I will show that the members of the European Trade Union Confederation (ETUC) and their legal advisors played a key role in the construction of the implications of the Viking and Laval cases. Indeed, through their judicial mobilisation, union actors contributed to defining the political and legal stakes of these cases. They gave them a European dimension by making them arbiters of the role of social Europe in the face of ‘market Europe’.

It should first be stressed that this trade union work of litigation framing, in the sense used by the sociology of social movements,Footnote ³² was facilitated by the setting up of a European coordination of the trade unions involved in the two cases, managed by the ETUC Secretariat. This transnational coordination, which was unprecedented in ETUC history, took the form of an ad hoc working group set up in the autumn of 2005. The ‘Viking-Laval Task Force’ brought together members of the ETUC Secretariat,Footnote ³³ Swedish, Finnish and ITF trade unionists and lawyers,Footnote ³⁴ their counsel,Footnote ³⁵ labour law professors with ties to the union movement,Footnote ³⁶ and PR consultants hired to work on the cases.Footnote ³⁷ They met several times in Brussels, London, or Stockholm.

The mobilisation initiated by the Task Force translated into ‘judicial lobbying’, a term I use to refer to the efforts made by union actors to convince the third parties involved in the cases (governments and the European Commission) to submit union-friendly observations to the European judges. This judicial lobbying involved a number of symbolic framings of the cases: convincing these parties to support unions before the CJEU indeed required defining the implications of the litigation to promote legal solutions that meet the unions’ interests.Footnote ³⁸ Therefore, I need to present the different framing operations performed by the Task Force in order to show how they constructed the European dimension of the two cases, and their importance for the fate of social Europe.

The first framing operation consisted in presenting the stakes of the two cases from a single angle. This joint treatment was not self-evident: despite their similarities, the two cases began in distinct countries, did not concern the same sectors, and raised different legal questions. Yet, union actors did their best to present them as facets of the same social dumping issue.Footnote ³⁹ The following quote from an interview I conducted with a former ITF lawyer involved in the proceeding is a good example of this common framing promoted by the members of the Task Force:

In the Task Force, these efforts materialised in the drafting and promotion of shared arguments between the teams in charge of Viking and Laval. For instance, the two teams issued a joint document entitled ‘How do Laval and Viking connect’. Its contents reflected the unions’ eagerness to emphasise the similarities between the two cases:

In this document, the stakes of the two cases were synthesised as a conflict of principle between the social dimension (union rights) and the economic dimension (internal market rules) of EU law. This joint framing was not only shared internally, but also reproduced in various papers used by union actors for their judicial lobbying. For instance, a memo drafted by the Task Force for the benefit of European civil servants, social policy officers in Permanent Representations, MEPs and journalists emphasised the ‘common issues’ in the two cases, explaining that ‘both cases are of fundamental importance’ in the sense that they both put internal market law and union rights in the balance.Footnote ⁴² This framing was adopted in several other Task Force documents geared towards European policymakers, such as the letter addressed by John Monks (ETUC Secretary-General, 2003–2011) to José Manuel Barroso (European Commission President, 2004–2014) regarding the Viking Case. Thus, in the letter, Monks presents the case as a ‘mirror image’ of the Laval case, and stresses the ‘important similarities’ between the two on the same grounds.Footnote ⁴³

Through this political (the denunciation of social dumping) and legal (the conflict between social and economic rights) framing of the two cases, the Task Force members sought to defend social Europe against ‘market Europe’. Pleading this cause required a second framing operation consisting in generalising the stakes of the cases. Union actors indeed worked to de-nationalise and de-sectorise them to give them a European dimension. For instance, the memo drafted by the Swedish lawyers in the Laval case focuses less on issues related to the application of the posted workers directive in Sweden than on the questions of principle the case raised for the EU. According to the Swedish lawyers, the Laval case raised such general issues as the balance between the economic and social goals of the Treaty, the distribution of competences between the EU and Member States in the social policy field, and the recognition of trade union freedoms as fundamental principles of EU law.Footnote ⁴⁴

Similarly, the ITF’s lawyers emphasised the European implications of the Viking Case. A memo they circulated as part of their judicial lobbying effort explained that the litigation raised a question of ‘sizeable constitutional and international importance’, namely that of the ‘hierarchy of norms’ (social and economic) in EU law. The judgement would accordingly not just affect the maritime transport sector, but have ‘considerable implications for the exercise of social rights’ and be of ‘major significance for unions and their members in the entire EU’.Footnote ⁴⁵ Again, the document jointly drafted and disseminated by the Task Force also illustrates this generalisation effort:

In this effort of promotion of a European framing of the cases, the ETUC Secretariat was particularly well positioned to embrace and relay the message, as an organisation with a European dimension itself. In a letter to the President of the European Commission, the ETUC Secretary-General emphasised the consequences of the Laval case for the European trade union movement as a whole and for the very future of European integration: ‘The outcome of the case is of great importance for trade unions all over Europe and the future orientation of the European Union’. The letter concludes that what is at stake in the judgements are ‘fundamental labour rights in general’ and the ‘European social model’ – in other words, social Europe as a whole, not just the Scandinavian system.Footnote ⁴⁷

This judicial lobbying also targeted governments.Footnote ⁴⁸ Indeed, as Marie-Pierre Granger has shown in her work,Footnote ⁴⁹ the governments are key players at the CJEU alongside the European Commission. Thus, the ETUC mobilised its members to promote their European common framing of the cases to national authorities. For instance, regarding the Laval case, the Belgian Confederation of Christian Trade Union Federations (ACV/CSC) asked its government to intervene before the CJEU in a letter that stressed ‘the importance of such a case on principle’ and noting that ‘the fundamental issue of this case is that of the balance between Europe’s economic and social goals.’Footnote ⁵⁰ This judicial lobbying took also the form of direct contacts with the authorities, as the then Secretary-General of the European Federation of Building and Woodworkers (EFBWW) explained to me:

The judicial lobbying also targeted Members of European Parliament (MEPs), who were liable to indirectly influence the positions of the European Commission and of the Member States at the CJEU. The members of the Task Force chiefly relied on social-democrat MEPs (especially those from Scandinavia) and on the members of the parliamentary Intergroup on Trade Unions. One of the Task Force’s consultants, for instance, drafted a letter that was signed by Martin Schulz (president of the socialist group), Poul Nyrup Rasmussen (president of the Party of European Socialists – PES) and Jan Andersson (president of the Committee on Social Affairs) and sent to all MEPs. The letter argued that in the Laval case, the Swedish unions defended equal treatment between European workers, and urged MEPs to convince their government to support the unions at the CJEU.Footnote ⁵²

Overall, the Task Force members presented the Viking and Laval cases as two rulings where the future of social Europe in the face of market-based Europe was at stake. Despite the legal initial phrasing of the questions for a preliminary ruling submitted by employers’ lawyers to the CJEU and the sectoral and national specificities of the cases, the unions reworded these particular legal disputes as major conflicts on principle where the primacy of social Europe over the market-based Europe lay in the balance. This political framing of the cases was indissociable from the legal framing: for the unions, defending social Europe against ‘market Europe’ meant defending fundamental social rights against the economic freedoms of the internal market.

C. The mediatisation and politicisation of the Viking and Laval cases

The construction of Viking and Laval as two key cases for the future of social Europe was then supported by their European-wide mediatisation and politicisation. I will explain in this subpart that these processes unfolded in a context that was conducive to debate on social Europe, particularly with the negotiations on the ‘Bolkestein’ directive. As we will see also, the European Parliament played an important role in the construction of these debates. Thanks to these different social processes, the two affairs became a transnational ‘public problem’Footnote ⁵³ even before their reviewing by the CJEU.

A first particularity of the mediatisation of the two cases is that they both garnered attention at an early stage in the European media, which is uncommon for social conflicts.Footnote ⁵⁴ By late 2004 already, several press agencies reported on the dispute between the Swedish trade unions and Laval un Partneri. The Latvian press agency published 28 dispatches (in English) on the subject between December 2004 and February 2005, the Agence France Presse (AFP) put out seven in December 2004, and Reuters also did one. The conflict in Vaxholm was also covered by several national daily newspapers, particularly in Sweden where the case received extensive coverage: by my count, the Dagens Nyheter (the country’s biggest general interest daily paper) devoted 16 pieces to the case in December 2004 and 24 more from January to April 2005. The Baltic press also published several pieces on the case, for instance in The Baltic Times, the region’s main English-language paper.Footnote ⁵⁵

Another particularity is that the media coverage of the conflict was not limited to the Scandinavian and Baltic countries most directly involved in the Laval case. In France, for instance, against the backdrop of an intense politicisation of European social issues fuelled by the referendum campaign on the planned constitutional treaty and debates on the ‘Bolkestein’ directive,Footnote ⁵⁶ several national papers covered the case from the angle of social dumping.Footnote ⁵⁷ While the Viking case made fewer headlines, it was still discussed by prominent papers such as the Financial Times, and by international outlets specialising in maritime issues.Footnote ⁵⁸ Overall, due to the simultaneity of their respective timings, the media often treated the two cases jointly.

This early transnational coverage of the cases facilitated their EU institutional agenda setting and their political framing as cases that crystallised tensions between social Europe and ‘market Europe’. Before I go on to analyse the component parts of this framing, it is necessary to briefly explain the factors that were conducive to this politicisation process.

First, the Laval case emerged in the context of the debates sparked by the proposed directive on Services (2006/123/EC), commonly known as the ‘Bolkestein’ directive after the Commissioner for the Internal Market Frits Bolkestein, who led the initial proposal. Presented in February 2004 by the European Commission, the proposal was intended to liberalise the provision of cross-border services. In 2005–2006, it met with vehement opposition (from trade unions, parliaments, and governments) across Europe. The text was often perceived as a Trojan horse for a neoliberal Europe. Posted workers and social dumping were key issues in this controversy, and ones that were particularly relevant since the EU’s enlargement to Central and Eastern European Countries in 2004.Footnote ⁵⁹ The ETUC and its members were at the time highly invested in negotiations on the text with the European Parliament,Footnote ⁶⁰ and repeatedly criticised the social dumping it would cause.Footnote ⁶¹ The congruence between the controversies raised by the services directive and by the Viking and Laval cases (on social dumping, posted workers, and the enlargement) is therefore a first explanation of their politicisation at the European level.

Second, the early involvement of Swedish and Latvian diplomats in the Laval case gave it a highly political dimension. In November 2004, Latvia’s Deputy Minister for Foreign Affairs met with the Swedish ambassador in Riga to ask for explanations on the treatment of Laval un Partneri by Swedish unions in Vaxholm.Footnote ⁶² In December 2004, during a European summit, the Latvian Prime Minister directly confronted the President of the European Commission José Manuel Barroso and his Swedish counterpart about the ongoing social dispute. Additionally, as the ‘Guardian of the Treaties’, the Commission received a formal request from the Latvian government to assess the conformity of Swedish law with the posted workers directive.Footnote ⁶³ In return, on behalf of their government, the social-democrat Swedish Prime Minister and the Minister of Labour spoke up in defence of the unions.Footnote ⁶⁴ No longer a private dispute between the Swedish unions and the Latvian company, the Laval case quickly became a major political and legal concern, debated by public authorities at the highest European level.

Lastly, statements made by Commissioner for the Internal Market Charlie McCreevy (who succeeded Frits Bolkestein in late 2004) led the European Parliament to include the Laval case in its agenda. During a visit to Stockholm on 5 October 2005, the Commissioner publicly declared that the Commission would support Laval un Partneri at the CJEU.Footnote ⁶⁵ This unexpected announcement sparked the anger of the Swedish unions and government, with the latter threatening to veto the services directive.Footnote ⁶⁶ Asked to respond by the ETUC, social-democrat MEPs, including several members of the parliamentary Intergroup on unions,Footnote ⁶⁷ urged José Manuel Barroso and Charlie McCreevy to appear before the Parliament to explain the latter’s statements.

A debate on the Laval case was as a result held in a plenary session on 25 October 2005, only a few weeks after the CJEU Registry had received the questions for a preliminary ruling on the Laval case. This was, to say the least, an unprecedented situation, in that a legal case was discussed in a parliamentary setting before a judgement had even been issued. In his opening address, the President of the Commission immediately acknowledged the political character of the case:

Like the framing promoted by the ETUC’s Task Force, the MEP’s interventions during the debate contributed to presenting the Laval case as the expression of a political cleavage between ‘market Europe’ and social Europe, or, in its legal version, as a standoff between economic freedoms and fundamental social rights.

For instance, Hans-Peter Poettering, the Chairman of the European People’s Party (EPP) group, argued that in his statements, Charlie McCreevy had merely nodded to ‘the right to the freedom to provide services’ and that the Swedish collective bargaining system had to adapt ‘to the establishment of the internal market’. Conversely, the Chairman of the Party of European Socialists (PES) group, Martin Schulz, berated the Commission for taking up ‘an unequivocal stance and set[ting] a right-wing, neoliberal course’, encouraging ‘the lowest standards for social security and the lowest standards for workers’ rights’, and thereby threatening ‘the European social model’.

This opposition between the social dimension of the EU and its internal market was asserted by several MEPs. For instance, Francis Wurtz (European United Left, France) denounced ‘a concept of Europe founded on creating competition among workers and on organising social dumping’, whereas Elisabeth Schroedter (Greens/EFA, Germany) called for reconciling the internal market and social Europe, meaning the ‘protection of workers’ and ‘the freedom to provide services’. This framing was successful in large part because it resonated strongly with the heated parliamentary debates that were raging at the same time regarding the services directive.Footnote ⁶⁹ The directive was actually mentioned by a majority of MEPs (12 out of 19) who spoke in the plenary session, even though the session was dedicated to discussion of Charlie McCreevy’s statements and of the Laval case.

Thus, concomitantly with the ETUC’s judicial lobbying (and to some extent following its impetus), the European Parliament contributed to constructing the Laval case (and through that case, the Viking case as well) as one that put the future of social Europe in the face of the market-based Europe at stake.Footnote ⁷⁰ It should also be noted that these politicisation and mediatisation processes are mutually reinforcing. Debates at the European Parliament considerably increased the echo found in Europe by the Laval case, as several press agencies (AFP, Dow Jones, Reuters, Agencia EFE, Agence Europe, Latvian News Agency, Belga, Finnish News Agency) published at least one dispatch on the plenary session of 25 October 2005. These dispatches were picked up by many national media outlets, in Scandinavia (ErhvervsBladet, Dagens Nyheter), France (L’Humanité, La Tribune, Le Monde), Germany (Süddeutsche Zeitung) and in English-language countries (The Guardian, The Financial Times, The Irish Times). The heightened media coverage on the Laval case following the parliamentary debates cemented its status as a major test for social Europe.

D. An academic construction: The role of law professors

As I will explain in this subpart, the construction of Viking and Laval as two major cases for social Europe was also informed by the analytical work performed by legal scholars specialising in labour law. Indeed, a number of comments on the cases were in fact produced even before the judgements were delivered, which helped create a heightened sense of expectation towards their outcome for academic doctrine.

Most of these comments were drafted by academics specialising in labour law, especially legal scholars with ties to the trade union movement (some were directly involved in the ETUC Task Force). This is the case of the authors who contributed to an issue of the journal Transfer, edited by the European Trade Union Institute (ETUI), the ETUC’s research and training centre. The summer 2006 issue focused on ‘Mobility of services and posting of workers in the enlarged Europe’. It contained two Articles on the Viking and Laval cases. The first was written by Thomas Blanke, then a professor of labour law at the University of Oldenburg, and a member of the ETUI’s Transnational Trade Unions’ Rights (TTUR) legal network. In the Article, the German academic argues that the questions for a preliminary ruling on the Viking case ‘go to the heart of the European integration process’. The CJEU, in his view, was tasked with ‘determining a policy orientation between economic freedom and social protection of workers’.Footnote ⁷¹

The second Article focused on the Laval case and was authored by three Scandinavian academics specialising in labour law, who were then researchers at the Swedish National Institute of Working Life and were close to the Swedish trade union movement: Kerstin Ahlberg, Jonas Malmberg and Niklas Bruun. The latter was also a member of the TTUR network, like Thomas Blanke. In their Article, they contend that the Viking and Laval cases are ‘symbols of the challenges that the freedom to provide cross-border services might pose to national labour standards’. According to them, ‘the issue at stake in the Vaxholm case is how the exercise of free movement is to be balanced against the fundamental right to collective action’. Regardless of its outcome, they claim that the ruling will be ‘revolutionary’ for Sweden and the EU as a whole:

Other journals with connections to the unions addressed the two cases and helped cement their importance even before the rulings were rendered. These included the publication outlet of the International Centre for Trade Unions Rights (ICTUR), a London-based trade union think tank. Its journal International Union Rights devoted a 2007 special issue to ‘labour rights in the Nordic countries and Baltic region’. The list of contributors included Professor Niklas Bruun, this time commenting on the Viking case, while Dan Holke, one of the three Swedish trade union lawyers in the Laval case, analysed that one. Both emphasised their crucial importance for the future of union rights in Europe and not only for Scandinavian countries. Dan Holke, for instance, wrote: ‘The outcome of this case is of importance for all unions in Europe and will determine the balance between the EU’s economic aims and social values.’Footnote ⁷³

These early Articles on the two cases did not only appear in trade unions’ legal publications; they also popped up in prominent academic journals. Two Articles on Viking and Laval were published in early 2006 in the Industrial Law Journal, which is the UK’s main labour law journal and more generally speaking an important journal for specialists in this field in Europe. The first was penned by Anne Davies, a professor of labour law in Oxford. In her Article, she calls the Viking case ‘an important test of the ECJ’s commitment to fundamental rights… Will the ECJ be able to strike an appropriate balance between trade union rights and free movement?’.Footnote ⁷⁴ In the following issue, Ronnie Eklund, a professor of law at the University of Stockholm and an important authority on labour law in Sweden, also published an Article on Laval, in which he also stressed its decisive character for the future of social Europe: ‘The question being asked in Sweden is whether Laval will turn out to be a landmark case for the development of EC law with respect to the social dimension of the European Union’.Footnote ⁷⁵

The doctrinal activity that occurred before the judgements was also and lastly showcased in general interest European law journals. The best example of this is Brian Bercusson’s oft-cited May 2007 Article in the European Law Journal, whose title is ostensibly prophetic: ‘The Trade Union Movement and the European Union: Judgment Day’. The Article is original in that it analyses the contributions submitted to the CJEU by governments and the European Commission in the Viking case, to which Bercusson gained access. Then a professor of European labour law at London’s King’s College, he was close to the ETUC and had founded the TTUR in 1996. In both cases, he acted as one of the unofficial legal advisors to the ETUC and the ITF, and more generally as an active member of the ETUC Task Force. To this activist law professor: ‘as the title of this Article suggests, the future of the trade union movement, but also of the EU, may depend on whether on judgement day the ECJ decides that the EU legal order upholds the right of trade unions to take transnational collective action.’Footnote ⁷⁶

Indeed, a consensus developed among some legal scholars, especially among academics specialising in labour law and with ties to the unions, around the idea that the Viking and Laval cases would be of crucial importance to the future of social Europe, even before the judgements were delivered. Ultimately, the construction of the stakes of these cases was a process that was fuelled by both trade union and academic actors, and by mediatisation and politicisation processes spurred among others by the European Parliament. The concomitant construction of all these legal and political anticipations surrounding the upcoming judgements made them a major case law for social Europe even before they were formally delivered by the CJEU.

A. From an equivocal victory to a crushing defeat: the trade unions’ interpretation of the judgements

When the CJEU’s decisions were made public on 11 and 18 December 2007, the ETUC’s first reactions were cautiously positive. In this subpart, I will show that the trade unions’ reading of the rulings changed over the months, morphing into harsh criticism of the case law on the grounds that it would have major negative impacts on social Europe. This evolution suggests that the legal meaning of the judgements was not set in stone from the start, but the outcome of an interpretation process.

In contrast with the strong criticisms voiced later, the unions’ first statements on the two judgements were rather positive. Regarding the Viking ruling, the ETUC’s initial press release ‘welcomes the ECJ’s clear recognition of the right to take collective action’. While he acknowledged that the decision was ambiguous in some ways, Secretary-General John Monks claimed that ‘this judgment clearly gives protection to unions acting at local and national level when challenging the freedom of establishment of companies.’ Regarding the Laval ruling, the ETUC’s reaction was more lukewarm, expressing ‘disappointment’ but noting a few ‘positive features’ in the judgement.Footnote ⁷⁹

Similarly, the ITF Secretary-General responded to the Viking ruling by welcoming ‘the Court’s assertion that the right to take collective action…is a fundamental right which forms an integral part of the general principles of Community law’. He added, however: ‘The devil’s in the detail and it’s now up to the Court of Appeal to apply the guidance to the particular facts of this case.’Footnote ⁸⁰ The Central Organization of Finnish Trade Unions (SAK) likewise welcomed the recognition of the right to take collective action as a fundamental right.Footnote ⁸¹ The first reactions of the Swedish Trade Union Confederation (LO-S) were equally positive, explicitly using the term ‘victory’ regarding the Viking case: ‘It’s a victory for the European trade union movement that the court so clearly establishes that the right to take union action is a fundamental right within the EU’.Footnote ⁸² About the Laval judgement, the president of LO-S granted that a change in the Swedish law on posted workers would be necessary, but mentioned that she was ‘pleased’ that the Swedish model was found compatible with EU law.Footnote ⁸³ Overall, surprisingly given their later statements, the union’s early reactions suggested that the rulings were a victory for the European trade union movement.

Soon, however, uncertainty arose regarding the interpretation of the rulings. These judgements are indeed complex texts, difficult to decipher at first glance. Thus, the ETUC’s first internal analyses are more cautiously worded than its first public statements: ‘Further study and analysis were needed to fully assess the meaning and impact of the cases not only for the parties concerned and their respective industrial relations systems, but also for other trade unions and industrial relations systems around Europe, and for “social Europe” in general’.Footnote ⁸⁴ Several questions were raised: had the CJEU introduced a normative hierarchy between the right to strike and internal market law? Should the posted workers directive be amended? In February 2008, the ETUC Secretariat drafted a document for the benefit of trade union leaders. The phrasing again belied the prudence of the analysis: the CJEU ‘seems to confirm’ a hierarchy of norms between social rights and economic liberties as well as a restrictive interpretation of the posted workers directive. This was, however, a ‘first assessment’; at any rate, the unions’ lawyers pointed out that the Laval judgement was ‘ambiguous and unclear’ regarding the fate of collective bargaining agreements in European law.Footnote ⁸⁵

After the somewhat positive initial reactions, during the December 2007–March 2008 period, the unions’ analysis of the verdicts was not yet stabilised. This opening up of interpretative options ended in the course of 2008, making way for a strong critique of the case law by European unions. The interpretation of the judgements was an important political issue for the ETUC, since it would determine its response: if they were considered a defeat for the European trade union as a whole, then the ETUC’s response would have to be European. Conversely, if they were framed only as a problem for Sweden or the maritime sector, solutions would have to be found at the national or sectoral level.

Being the most directly affected by the judgements, the Swedish unions and the European federations for the building (EFBWW) and transport (ETF) sectors were the ETUC members that most actively sought to promote a negative interpretation of the judgements and a European trade union response. In interviews, their Secretaries-General told me they worked tirelessly to persuade the other trade union leaders to adopt a critical stance towards the two rulings, as the EFBWW Secretary-General (a former Swedish trade unionist) and the ETF Secretary-General explain here:

Moreover, these stances taken in the ETUC’s governing bodies, which were recorded in meeting minutes,Footnote ⁸⁸ were embraced by the Chairwoman of LO-S. In 2008, she was also President of the ETUC, therefore her voice was important inside the European Confederation. In an interview, a former ETUC confederal secretary in charge of following the consequences of the Viking and Laval cases reminisced about the Swedish unions’ pressure to adopt a critical stance towards the judgements:

By mobilising in the ETUC’s governing bodies, these actors helped legitimise the idea of a major setback for social Europe. Their efforts were fruitful, as the ETUC adopted the following interpretation in the Spring of 2008: ‘The judgments are of massive importance to the European trade union world, and not just to our colleagues directly affected in Sweden/Latvia and Finland/Estonia… One thing is very clear: for the ETUC and its members the outcome of these two cases represents a major challenge… The idea of social Europe has taken a blow.’Footnote ⁹⁰

Since then, the analysis defended by European unions has been unequivocally critical, arguing that the Viking and Laval judgements enshrined the primacy of internal market freedoms over union rights and legalised social dumping. It follows that they constitute a defeat for the European trade union movement as a whole. This reading had practical implications for the subsequent orientations of the European trade union movement: the ETUC and its members for instance then called for the revision of the posted workers directive and the inclusion of a social progress protocol in European treaties that would affirm the priority of social rights over economic freedoms.Footnote ⁹¹

The ETUC actively promoted this critical interpretation of the Viking and Laval judgements in European trade union circles. Over the long term, a consensus developed and most of the European trade unions came to share this negative representation of the judgements. Multiple resolutions, press releases, brochures and reports by unions on Viking and Laval were published over the following decade. By my count, the cases were mentioned in 27 ETUC press releases and in 11 resolutions of its Executive Committee between 2008 and 2018. To quote one among many others, a resolution adopted in December 2011 called out ‘an intolerable interference with the fundamental right to take collective action’ by the CJEU and the priority given to economic freedoms over social rights.Footnote ⁹² In 2017, ten years after the judgements, the ETUC even published an anniversary statement that stressed that the effects of the ‘disastrous anti-worker Laval ruling’Footnote ⁹³ had yet to be remedied by EU authorities.

The cases were also being referred to on a regular basis in European and international trade union conferences. The 2009 Congress of the ETF, for instance, adopted two resolutions criticising the CJEU’s rulings. The first, entitled ‘Fundamental Rights vs Economic Freedoms’ cited the judgements’ ‘negative repercussions on workers’ labour and social rights throughout Europe’. The second, entitled ‘European Court of Justice Anti-Trade Union Judgments’, denounced the rulings as the ‘most fundamental attack on trade union rights for generations.Footnote ⁹⁴‘ Similar resolutions were also adopted by the ITF at its 2010 Mexico Congress and 2014 Sofia Congress.Footnote ⁹⁵ Likewise, the consequences of the CJEU’s case law were discussed at every ETUC congresses since then. At the 2011 Athens Congress, the manifesto adopted by European union delegates demanded the restoration of the primacy of fundamental social rights over economic freedoms;Footnote ⁹⁶ so did the action programmes adopted at the Paris (2015), Vienna (2019) and Berlin (2023) congresses.Footnote ⁹⁷

More broadly, the Viking and Laval cases came to serve as the lens through which other European judgements that touch on posted workers or union freedoms are interpreted. It was especially true regarding the ‘Rüffert’ and ‘Luxembourg’ decisions of the CJEU, issued in the first half of 2008.Footnote ⁹⁸ Both cases dealt with the interpretation of the posting of workers directive, and with the freedom of collective bargaining for the Rüffert case. Together, these four cases were soon be called ‘the Laval Quartet’ not only by the ETUC but also by numerous commentators. For the ETUC, these two new cases confirmed the pre-eminence of economic freedoms over fundamental social rights established by the CJEU in the Viking and Laval decisions. Indeed, according to John Monks speaking on behalf of the ETUC, the Rüffert case is ‘another destructive and damaging judgment after the recent Laval ruling’Footnote ⁹⁹ and the Luxembourg case is ‘another hugely problematic judgment by the ECJ, asserting the primacy of the economic freedoms over fundamental rights’.Footnote ¹⁰⁰

Besides these two cases, the same interpretation was again applied by the ETUC to less renowned cases. For instance, in 2010, regarding a CJEU judgement on a German case on the compatibility of some collective agreements with EU procurement laws,Footnote ¹⁰¹ the ETUC’s Secretary-General argued that it confirmed ‘the supremacy of economic freedoms over fundamental social rights’, adding that ‘the dark series initiated by the Viking and Laval cases is far from being over’.Footnote ¹⁰² References to Viking and Laval were still being made in 2016, when the ETUC’s Deputy Secretary-General said about a preliminary ruling on the participation of union delegates in German company boards:Footnote ¹⁰³ ‘We all have very bad memories of cases like Laval and Viking. We really do not need another set-back’.Footnote ¹⁰⁴ The critical interpretation of the Viking and Laval rulings by European trade union leaders was reinforced over time: each new case provided an opportunity to reassert the argument that the two judgements were a major defeat for social Europe.

B. A critical doctrine: the academic interpretation of the Viking and Laval judgements

The Viking and Laval judgements are particularly noteworthy for having immediately (and even before they were delivered, as we have seen above) elicited a considerable academic output: dozens of commentaries, Articles and books were published on the rulings, not to mention the numerous seminars, workshops, and conferences that were held on the subject. In this subpart, I will show that law professors, particularly those specialising in labour law, played a key role alongside the unions in constructing a strong critical interpretation of this case law, which was academically analysed as very negative for social rights in particular and social Europe in general.

However, a few methodological notes about the EU academic doctrine are in order before developing my reasoning. In this regard, Bruno de Witte has shown that the group of European law professors does not constitute a unified community; it is fragmented along national, linguistic and disciplinary lines.Footnote ¹⁰⁵ Likewise, Harm Schepel and Rein Wesseling have emphasised the variety of the members of the legal European community, which include professors, judges, European civil servants and lawyers.Footnote ¹⁰⁶ However, in the case at hand, I intend to show that a truly European interpretation (going beyond the national subdivisions of the European academic field) of the Viking and Laval rulings was voiced by labour law scholars, who reached a transnational consensus on a critical reading of the CJEU’s decisions, depicted as harmful for social Europe.

To begin with, I conducted a study of the scope of the academic output on this case law to document the transnational character of this critical doctrine. I chose to analyse the characteristics of the bibliography compiled by the CJEU’s research and documentation directorate on the two cases. This sizeable bibliography, which was updated until 2018, comprises 125 items for the Viking case and 140 for the Laval case.Footnote ¹⁰⁷ Few CJEU judgements have elicited more references.Footnote ¹⁰⁸ Although it is not exhaustive, this bibliography offers a heuristic window into the main features of the European doctrine on the two rulings. It should, however, be noted that it includes many references twice; once the duplicates are filtered out, we obtain a single bibliography comprising 175 references: 50 on Laval, 35 on Viking, and 90 that address both. The findings presented below are from this duplicate-free database (n = 175).

I started by looking at the temporality of the academic production on the judgements. As we have seen above, it began early: 21 references date from 2005 to 2007, which confirms that the importance of the two rulings was enshrined even before they were delivered. A peak of publications was reached in 2008, with 75 references, essentially Articles and case analyses. The academic output decreased over the following years (11 references in 2009, 10 in 2010, under 10 for each of the subsequent years) and picked up again in 2014 (24 references), a resurgence that constituted a second period of scientific discourse production on the Viking and Laval judgements, as edited volumes on the cases were released.Footnote ¹⁰⁹ Lastly, only a dozen publications came out during the 2015–2019 period.

I then set out to specify the disciplinary affiliations of this output, by identifying the branch of law from which the Articles, case analyses and chapters published derive. The majority were published in labour law journals or books (94 references, for instances: Arbeit und Recht, European Journal of Social Law, Industrial Law Journal…). Other outlets – journals – discuss EU law in general (26 references) and business law (18 references). Other legal specialties are represented to a smaller extent in the bibliography, such as maritime law, fundamental rights or administrative law.

Regarding the languages in which these publications were written, English (49 references), German (42), Swedish (24) and French (21) dominate. Other recurring languages are Spanish (7), Greek (7), Dutch (7) and Italian (6). This supports an observation made by Bruno De Witte, who found that the language of academic European law is primarily English, followed by German and French.Footnote ¹¹⁰ Notably, the bibliography only includes nine publications in the languages of the Central and Eastern European countries. It does not mean that scholars from these countries were not interested by the Viking and Laval cases, but that they published papers in a foreign language, mostly in English.Footnote ¹¹¹

This analysis of the corpus compiled by the CJEU’s documentation staff shows that the Viking and Laval judgements gave rise to a genuinely European doctrine, extending far beyond the countries where the cases originated, and mobilising academics from across Europe and from various branches of law (although the labour law scholars were the most represented). I will now move on to the content of this doctrine. In the following, I will show that most academic analyses exhibit a critical stance towards the two rulings and emphasise their negative consequences on social Europe.Footnote ¹¹²

Among the recurring criticisms of the rulings, the precedence given by the CJEU to economic market freedoms over fundamental social rights is by far the most frequently cited. Numerous labour law scholars have formulated it in English-language journalsFootnote ¹¹³ and Francophone ones,Footnote ¹¹⁴ in major journals of European lawFootnote ¹¹⁵ and in labour law publications.Footnote ¹¹⁶ The other recurring criticism of the doctrine has consisted in deploring that the CJEU turned the social standards guaranteed by the posted workers directive into a ‘ceiling’ when it used to be a ‘floor’.Footnote ¹¹⁷

It should also be noted that several subsequent CJEU judgements were analysed in light of Viking and Laval, which became a key framework of interpretation of cases pertaining to fundamental social rights. For instance, Franck Lecomte (référendaire at the CJEU) analysed a case involving a Danish shipping company as ‘another Viking in the courtroom’,Footnote ¹¹⁸ while Sophie Robin-Olivier (University of Paris 1) described a question for a preliminary ruling to the CJEU regarding the reflagging of a Greek ship in Malta as an opportunity to ‘forget about Viking’.Footnote ¹¹⁹ The AGET Iraklis judgement delivered in December 2016 by the CJEUFootnote ¹²⁰ was also described as a ‘new Laval judgment’ by Sylvaine Laulom (University of Lyon 2)Footnote ¹²¹ and Menelaos Markakis (Erasmus University Rotterdam).Footnote ¹²² Lastly, on a broader level, it is worth mentioning that by the late 2000s, a number of European labour law scholars had begun diagnosing a crisis of their discipline, whose autonomy they said was threatened by other branches of EU law. They regularly cited the Viking and Laval judgements as major factors in that crisis.Footnote ¹²³

The centrality of a critical interpretation of the Viking and Laval judgements in the doctrine can be also demonstrated by studying European labour law handbooks, which give us a window into the dominant orientations of current scholarship in synthesised and teachable form.Footnote ¹²⁴ Among the French-language handbooks, the Manuel de droit européen du travail published in 2016 by Sophie Robin-Olivier calls the judgements a ‘turning point in the case law history’ of the CJEU and points out the ‘absence of primacy of fundamental social rights over freedoms of movement’.Footnote ¹²⁵ The 2013 book Droit social international et européen en pratique, edited by Michel Miné (Centre National des Arts et Métiers), also features a section on the Viking and Laval rulings. It faults the CJEU for having ‘strictly framed’ the right to strike by ‘depriving it of useful effects’ in light of the ‘requirements of justification and proportionality’ for the exercise of this right in relation to economic freedoms.Footnote ¹²⁶

Written by Mélanie Schmitt (University of Strasbourg), the handbook Droit du travail de l’Union européenne (2011) also criticises the hierarchy between economic freedoms and social rights introduced by the CJEU.Footnote ¹²⁷ Although less openly critical in tone, the handbook Droit social de l’Union européenne by Jean-Michel Servais (University of Bordeaux) and Quentin Detienne (University of Liège) also subscribes to the thesis of an opposition between economic freedoms and union rights.Footnote ¹²⁸ In the handbook by Pierre Rodière (University of Paris 1), the two rulings are analysed along the same lines; he writes that the CJEU has made the right to strike a fundamental one, but with no actual ‘fundamental value’ in the face of economic freedoms.Footnote ¹²⁹ After all, only the handbook written by Bernard Teyssié (Université of Paris 2) does not criticise the case law. Nevertheless, the two rulings are still analysed through the prism of an opposition between the right to strike and economic freedoms (but without this opposition being criticised).Footnote ¹³⁰

When it comes to the English-language handbooks, the volume published in 2012 by Catherine Barnard (University of Cambridge) with Oxford University Press is an important reference. The preface of this fourth edition stresses the ‘seismic’ repercussions of the two rulings and the book includes a new chapter on the relationship between internal market law and labour law, in which the author criticises the ‘victory of the economic freedoms’ over social rights.Footnote ¹³¹ EU Labour Law, written by Anne Davies (University of Oxford) and published by Edward Elgar in 2012 also supports the thesis of the primacy of economic freedoms : ‘Despite the talk of ‘balance’ between the economic and the social, most regarded the results as a victory for the economic freedoms’.Footnote ¹³² Thus, the professor describes Viking and Laval as ‘the two most important cases in this area so far’Footnote ¹³³ and concludes by emphasising their revolutionary implications: ‘EU labour law is constantly changing… It is no exaggeration to say that the much-debated Viking and Laval cases transformed the subject’s landscape’.Footnote ¹³⁴ Lastly, the second edition of European Labour Law, written by Brian Bercusson (King’s College) and published posthumously by professor Keith Ewing (King’s College) with Cambridge University Press in 2009, also extensively discusses Viking and Laval and embraces the thesis of a hierarchy between social and economic standards to reach a highly critical conclusion: ‘The outcome is deeply unsatisfactory. Fundamental rights are given lip service, but then trampled on in the name of archaic market fundamentalism.’Footnote ¹³⁵

The European doctrine, particularly in European labour law, thus overwhelmingly considers Viking and Laval as groundbreaking negative rulings for social Europe. As we have seen, this critical interpretation of the rulings has been repeated in many Articles, chapters, books, but also by the same authors in many conferences and seminars for which there is no written record. Entire PhD theses have even been devoted to the consequences of the two judgements.Footnote ¹³⁶ It can also be assumed that this critical interpretation has been taught by labour law professors to many cohorts of law school students in Europe, notably with the help of the handbooks mentioned above. All these academic efforts to promote a critical interpretation of the two judgements contribute to construct and to frame this case law as a major defeat for social Europe.

On the contrary, I found only a few academic texts which have supported the judgements.Footnote ¹³⁷ Moreover, among these supportive authors, one later became a judge in the General Court (Damjan Kukovec) and one advised the Latvian government in the Laval case (Norbert Reich). In fact, most of the authors who published supportive or non-critical interpretation of the Viking and Laval case were mostly members (judges, advocates general, référendaires) of the CJEU.Footnote ¹³⁸ Indeed, on several occasions, these judicial actors intervened in the scholarly debate to defend a more positive or nuanced interpretation of their case law (the CJEU’s Vice-President and President themselves also published an Article),Footnote ¹³⁹ but they did not succeed in countering the prevalence of the critical interpretation by academics. Paradoxically, although they have a formal monopoly on EU law interpretation, the European judges failed to impose their interpretation of their own verdict.

C. The emergence of a commonsense European interpretation of the Viking and Laval judgements

The criticisms voiced by trade unionists and labour law professors on the Viking and Laval judgements did not remain confined to the union and academic spaces. They were also actively promoted on the EU political and administrative scene by these actors, who in doing so contributed to the normalisation of the meaning of this case law as nefarious for social Europe. In this last subpart, to conclude the demonstration of my constructivist thesis, I will show how this critical reading became a European commonsense interpretation, a self-evident consensus shared by most EU actors.

The unions’ interpretation of the judgements was first promoted for the benefit of EU institutions. For instance, the ETUC and its members defended their critical analysis of the rulings within the Committee of Experts on Posted Workers, in which they were observers. This Committee was attached to the European Commission’s DG Employment and brought together civil servants from national ministries of labour. Its creation in 2008 was a direct result of the Laval judgement: on a proposal from the Commission, the EU Council tasked it with studying how to improve co-operation on posted workers.Footnote ¹⁴⁰ The unions’ criticisms of the CJEU case law were also voiced in the context of the European social dialogue, as part of which the ETUC undertook the task of analysing the rulings with European employers’ organisations.Footnote ¹⁴¹

European union representatives and European labour law professors also shared their interpretation of the judgements in the EU’s political arenas, including the European Parliament. For instance, John Monks (ETUC Secretary-General) and Jonas Malmberg (University of Uppsala) spoke before the Committee on Employment and Social Affairs.Footnote ¹⁴² Likewise, the MEP Jan Andersson, who had strong connections to the ETUC and to Swedish unions, drafted an initiative report on ‘Challenges to collective agreements in the EU’. The report was used as the basis for a European Parliament resolution that embraced the thesis of the primacy of economic rights over social rights.Footnote ¹⁴³ This critical analysis of the judgements was further supported by an opinion of the European Economic and Social Committee.Footnote ¹⁴⁴ Overall, the shock wave sent by the Viking and Laval rulings rippled through several EU institutions, far beyond the sole union and academic arenas.

To go beyond a mere inventory of stances on the judgements, I will conclude here by outlining the structure of the transnational space of opinions on the case law, to evidence the construction of a commonsense interpretation on the negative implications of the rulings for social Europe. To do this, I have analysed speeches given during five major European conferences on Viking and Laval: one was held at the German Federal Ministry of Labour in Berlin in June 2008; three others were organised by the European Commission, first in Brussels in October 2008 with support from the French Presidency of the Council, then in Oviedo in March 2010 with support from the Spanish Presidency, and finally in Brussels in June 2011; the fifth was held by the ETUC in Brussels in January 2011.Footnote ¹⁴⁵ I selected these conferences based on their size and on the diversity of their participants: each brought together dozens of speakers from varied backgrounds, giving them a hybrid character – political, legal and academic – and venues for the confrontation of different viewpoints.

In total, the programmes of the five conferences under study mention 156 speeches: 16 by Ministers, six by Commissioners, 32 by (senior) European (13) and national (19) civil servants, 24 by leaders of trade unions (15) and employers’ groups (9), 15 by experts from trade unions (9) and employers’ groups (6), 34 by law professors and 9 by MEPs. A minority of speeches was also given by consultants (5), from the International Labour Office (ILO) (3), from the European Agency for the Improvement of Living and Working Conditions (Eurofound) (2), by members of the European Social and Economic Committee (2), of the CJEU (3), of the European Court of Human Rights (ECtHR) (2), and by national judges (2). The table below synthesises information on these speeches. Some individuals spoke at several conferences, which means that some speakers are counted twice or more Table 1.

Table 1. Speakers in the five conferences under study

Having outlined the composition of this space of debates, let us now move on to the contents of the views expressed. As we will see, a majority of speeches were critical of the Viking and Laval rulings. Conversely, only a minority of speakers praised the CJEU’s judgements. A cleavage appears between a minority who found that the judgements neither weakened union rights nor interpreted the posted workers directive in a restrictive manner and a majority who adopted a critical interpretation of the judgements on the grounds that they were nefarious for social Europe.

Among those speaking in favour of the Viking and Laval rulings, only employers’ representatives openly argued that they reinforced union rights and usefully clarified the posted workers directive. For instance, the Director General of BusinessEurope Philippe de Buck defended that stance at the two conferences organised by the Commission in Brussels in 2008 and 2011.Footnote ¹⁴⁶ At the latter, de Buck stated that ‘the real novelty of the Viking and Laval rulings is that the right to strike has been recognised by the ECJ as an EU fundamental right for the first time’. This argument was reiterated by other employers’ representatives, such as Maxime Cerutti (Director of BusinessEurope’s Social Affairs Department) in 2011 at the conference held by the ETUC in Brussels,Footnote ¹⁴⁷ or Lars Gellner (labour law specialist from the Confederation of Swedish Enterprise) in 2008 in Berlin.Footnote ¹⁴⁸

At odds with this interpretation, trade union actors were very critical of the CJEU’s case law. At the first Brussels conference, John Monks explained that the judgements constituted ‘a major challenge’ for the ETUC and its members as the CJEU appeared ‘to confirm a hierarchy of norms… with market freedoms highest in the hierarchy’ and to interpret the posted workers directive ‘in a very restrictive way’, limiting the ability of unions ‘to take action against unfair competition on wages and working conditions’.Footnote ¹⁴⁹ Union lawyers also presented similar interpretations, as Claes-Mikael Jonsson, legal advisor for the Swedish Trade Union Confederation (LO-S) and former coordinator of the ETUC Task force Viking-Laval, did at the 2008 Berlin conference:

This critical view of the rulings was also expressed by a majority of law professors (especially those specialising in European labour law) in conferences. Several of them are in fact close to the ETUC or to one of its national member organisations. For instance, Filip Dorssemont (University of Louvain) and Niklas Bruun (Hanken School of Economics) are members of the European Trade Union Institute’s TTUR network. Also worth noting is one of the last public speeches by Brian Bercusson (who died suddenly in the summer of 2008), a founder of the TTUR network and active members of the ETUC Task Force on the Viking and Laval cases. In Berlin, he did not mince words:

The space of position-takings on the Viking and Laval cases thus appears cleaved between a group of critics of the judgements and of their consequences on social rights in Europe, which includes trade unionists and a vast majority of law professors, and a group of supporters of the CJEU’s decisions and of people who downplay its negative impacts, which includes employers’ representatives. Along a continuum between these two opposed groups, we find the stances of national ministers. Among those leaning towards the critical side, there is for instance François Biltgen, Luxembourg’s Minister of Labour since 1998 (paradoxically he later became a judge at the CJEU). His country was very directly concerned by the CJEU’s case law on posted workers, since the ‘Commission v Luxembourg’ judgementFootnote ¹⁵² delivered a few months after Viking and Laval cited the incorrect transposition of the directive by the Grand Duchy. At the 2008 Brussels conference, Biltgen defended a rather critical position on the rulings: ‘the feeling that fundamental freedoms, such as the freedom to provide services, are prevailing over social rights, keeps spreading’.Footnote ¹⁵³ A similar sentiment was expressed by Andreas Storm, Secretary of State for Labour of the Federal Republic of Germany, a Member State that was also impacted by the CJEU case law with the Rüffert judgement of 2008.Footnote ¹⁵⁴ At the 2011 Brussels conference, he voiced several reservations regarding the CJEU’s case law.Footnote ¹⁵⁵

Among the speeches by ministers, few praised the CJEU’s decisions. At the 2008 Brussels conference, the Czech Minister of Labour Petr Nečas was alone in welcoming the rulings, arguing that ‘social Europe can only be sustained by enhanced competitiveness’.Footnote ¹⁵⁶ However, governmental criticisms became less harsh over time. Three years later, in his 2011 Brussels speech, Inger Støjberg, the Danish Minister of Labour, simply stressed that free movement is one of ‘the most fundamental’ EU rights and called for pursuing practical solutions outside of any form of ‘ideological’ discussion.Footnote ¹⁵⁷

Last but not least, the European Commission’s interpretation of the Viking and Laval judgements gradually changed over time. Initially, the Commission’s representatives claimed that the CJEU’s rulings did not call into question the posted workers directive or trade union freedoms, but only raised issues specific to certain countries. Hence this statement by Armindo Silva, Director at the DG Employment, at the 2008 Berlin conference: ‘We have difficulty in seeing these rulings as reversing a long-established tradition of EU jurisprudence in favour of social rights’.Footnote ¹⁵⁸

The institution’s discourse subsequently evolved. An important factor in that sense was José Manuel Barroso’s public commitment before the European Parliament in September 2009, at the beginning of his second term, to legislate in favour of a better implementation of the posted workers directive and to take measure to resolve conflicts between the right to take collective action and the freedoms of the internal market.Footnote ¹⁵⁹ To the President of the Commission, as an internal note from the Director-General of DG Employment explained,Footnote ¹⁶⁰ this commitment was a response to criticisms of the CJEU’s rulings by trade unions and left-wing parties. In 2010, the report submitted to the Commission by former Commissioner Mario Monti also contributed to legitimising the idea that the Viking and Laval decisions had worsened the imbalance between the social and economic dimensions of European integration.Footnote ¹⁶¹

These elements led Commission executives to acknowledge that the CJEU’s decisions were problematic. At the 2011 Brussels conference held by the ETUC, the Commissioner for Employment Laszlo Andor claimed to want to clarify the scope of the unions’ right to take collective action and to improve the implementation of the posted workers directive. Most importantly, the Commissioner now recognised that the union’s criticisms were legitimate:

While Andor did not openly embrace the thesis holding that economic rights now had precedence over trade union freedoms, he now acknowledged the dominant framing of the debate, namely that the CJEU’s rulings had evidenced difficulties relating to the application of the posted workers directive as well as a tension between economic and social rights, requiring a response from EU authorities. The Commissioner for the Internal Market Michel Barnier also made a similar statement.Footnote ¹⁶³ This response came under the guise of two legislative proposals in 2012: first, a directive aimed at strengthening the application of the posted workers directive, adopted in 2014 (2014/67/UE); second, a proposed regulation aimed at reconciling the right to take collective action and the freedoms of the internal market (which was never adopted due to the ‘yellow card’ raised by national parliaments).Footnote ¹⁶⁴ By submitting these two proposals, the Commission tended to support the idea that the Viking and Laval rulings posed problems for social Europe and called for EU reforms.

Ultimately, while the interpretation of the Viking and Laval cases promoted by trade union and academic actors was not embraced by all on the European scene, it still became dominant and contributed to the development of a critical commonsense interpretation of the rulings. In other words, the idea that the CJEU had struck a blow to social Europe became a consensual one.