Conceptualising Conflict between the Economic and the Social in EU Law after Viking and Laval

It is the economic reality of the EU that there continue to exist vast differences between old and new Member States in the level of wages and in the relative position of workers vis-à-vis employers. In Viking and Laval the Court of Justice decided not to protect trade unions, representing workers of the old and richer Member States, against their subjection to the EU principles of free movement of services and freedom of establishment. The paper argues that the judgments of Viking and Laval can be easily defended once we take account of the interests of workers from new Member States employed by companies providing services in old Member States or by companies which relocated from such states. Instead of criticising the Court for prioritising free movement rights what we should regret and criticise is the Court's decision not to give a more direct voice to posted workers or future employees of relocated companies. The article explains that a closer examination of the situation allows us to conclude with confidence that protecting free movement rights has important social benefits and therefore should not be perceived automatically as privileging economic considerations over protective policies of the Member States. Against this background the paper is putting forward three claims: that it is incorrect to view the boundary between the economic and the social in EU law as coinciding with the distinction between the internal market rights and the ‘social' rights such as the right to strike; secondly, that it is incorrect to assume that social policies always serve virtuous purposes and on this ground shield these policies from judicial scrutiny; and thirdly, that the correct location of the discussion about the minimum floor of rights in the EU necessary to counteract deterioration of working conditions for all EU employees is the EU's legislative process and not judicial application of the free movement principles