Almost half of all Holocaust victims remain nameless statistics. Just over three million names of Jewish Holocaust victims are known today, representing little more than half of the victims. It is estimated that when all names are retrieved from published and unpublished documents the total number may rise to four million, which leaves two million unknown names. Since memory is closely connected to the identity symbolized by a name, those who cannot be named cannot be remembered. To retrieve a name is to rescue a person from oblivion.

On January 15th 2008, it was precisely fifty years ago that the First Senate of the Federal Constitutional Court (FCC) (Bundesverfassungsgericht) handed down its seminal decision in the Lüth case. The Lüth decision can be seen as a foundational moment for at least two transformative Post-War developments in constitutional thinking that continue to influence legal systems around the world.

The two reference cases considered here concern the compatibility with EU law of industrial disputes and collective actions against EU companies exercising their free movement rights. The Swedish case, under a reference of the Arbetsdomstolen (Swedish Labour Court) of 15 September 2005 in litigation between Laval un Partneri Ltd (hereafter ‘Laval’) v. Svenska Byggnadsarbetareförbundet, Avdelning 1 of the Svenska Byggnadsarbetareförbundet, Svenska Elektrikerförbundet (in the material that follows, ‘Bygnadds’) and others concerns the question of whether an industrial action of Swedish labour unions against a Latvian company that wanted to perform a work contract under Swedish procurement rules through the use of posted Latvian workers falls under the ‘freedom to provide service’ rules of Article 49 EC and, if this is the case, whether this action can be justified either under the posted workers directive, 96/71/EEC, or under a specific Swedish law exempting labour unions from liability in taking action against foreign-based companies (the so-called Lex Britannia; see sections E.I and H.II below).

The Bundesverfassungsgericht (Federal Constitutional Court) is a constitutional body charged with the task of ensuring that all state institutions, i.e. the legislator as well as the judiciary and executive branches, obey the constitution of the Federal Republic of Germany. Its review standard is the Grundgesetz (Basic Law). Since its foundation in 1951, the Court has helped to secure respect and effectiveness for the free democratic constitutional order. The decisions have far-reaching repercussions, which becomes particularly clear when the Court declares a law unconstitutional. Given the large number of cases handed down every year – at present nearly 5,000 constitutional complaints come before the Federal Constitutional Court annually – it is nearly impossible to give a representative summary of the comprehensive case law. Therefore, the report will concentrate on a selection of four decisions that have drawn the most attention over the course of the years 2005 and 2006.