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This article analyses EU member state political responses to ECJ challenges. Faced with high consensus requirements at the European level, member states often have to respond unilaterally and explore how to pursue autonomous regulatory goals in ‘EU-compatible’ ways. Member states' domestic responses to one prominent series of ECJ judgments (Laval, Rüffert, Commission vs Luxembourg) are traced from a Europeanization perspective. The case studies show that, by forging a consensus which includes potential litigants and by building on existing legal precedent, member state governments can preserve significant parts of their original legislation while making it ECJ-proof.
ACKNOWLEDGEMENTS
I would like to thank two anonymous reviewers and Alexandre Afonso, Philipp Genschel, Marie-Pierre Granger, Miriam Hartlapp, Adrienne Héritier, Dan Kelemen, Juan Mayoral, Diana Panke, Susanne K. Schmidt, Anne Thies, Benjamin Werner and Rebecca Zahn for their comments. I am grateful to the Robert Schuman Centre for Advanced Studies for granting me a Jean Monnet Fellowship 2010/11 and to the German Research Foundation for its funding of the Collaborative Research Centre 597.
Notes
In contrast to the other cases, Viking was decided on the basis of the freedom of establishment, which makes the case rather specific.
For a summary of their positions, see: ‘Social partners have differing views on Laval Inquiry’, available at http://www.eurofound.europa.eu/eiro/2009/05/articles/se0905029i.htm (accessed 10 May 2011).
Act on amendment of the Act on Posting of Workers, adopted 18 December 2008, entry into force 01 January 2009.
Changes to the Co-Determination Act and the Posting of Workers' Act, adopted 05 November 2009, entry into force 15 April 2010.
Anonymous interviews with representatives from the Swedish and Danish trade union confederations, 28 April and 4 May 2011.
Brandenburg's legislative draft (Landtag Brandenburg, Drucksache 5/3030) includes an extensive excursus on the EU-compatibility of the proposed legislation and several explicit references to Berlin. The parliamentary debate on minimum standards regarding public procurement in North-Rhine Westphalia (Landtag Nordrhein-Westfalen, Plenarprotokoll 15/16) witnessed multiple references to the reforms of other Länder governments and their legal expertise.
Loi du 11 avril 2010 portant modification des articles L. 010-1, L. 141-1, L. 142-2, L. 142-3 et L. 142-4 du Code du Travail. The law and the legislative process are documented in Dossier parlementaire No. 5942, available at http://www.chd.lu/wps/portal/public/RoleEtendu?action=doDocpaDetails&id=5942 (accessed 10 May 2011). For the citation, translated by the author, see page 12 in document 5942/00 ‘Exposé des motifs’.
See Endnote 7, page 5 in document 5942/00 ‘Exposé des motifs’, translated by the author.
For example, the idea of limiting the definition of posted work temporally and with reference to tasks that are ‘not part of the normal activity’ of a company was dropped after a formal objection of the State Council which warned about new infringement action. See Endnote 10, pages 4–5 in document 5942/05 ‘Avis du Conseil d'Etat’.
See Endnote 7, page 7 in document 5942/08 ‘Rapport de la Commission du Travail et de l'Emploi’, translated by the author.
Accordingly, in two more recent cases, the Court's Advocate Generals pleaded for an adjustment of the Laval and Rüffert jurisprudence, but the final judgements did not follow their opinions (Joerges 2011: 32–34).