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European labour law in crisis : the demise of social rights

Busby, Nicole and Zahn, Rebecca (2013) European labour law in crisis : the demise of social rights. Contemporary Issues in Law, 12 (2). pp. 173-192. ISSN 1357-0374

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Syrpis and Novitz have argued that ‘the choices which the Court has made in the Viking and Laval cases represent a tipping of the delicate balance between economic and social rights in favour of the former.’ ([2008] ELR 411). The Court of Justice’s (CoJ) judgments which led to a prolonged sense of crisis in European Labour Law came at a time when increasing emphasis was already being put on soft law mechanisms at EU level to achieve harmonisation across national employment policies in place of hard law regulation. In applying the CoJ’s decision in Laval, the Swedish labour court contributed to this sense of crisis by going beyond what was necessary to comply with the decision much to the detriment of national trade unions. Overall, there is little enthusiasm at national or European levels to develop further the provision and application of social rights within the employment context. This paper considers whether the entry into force of the Lisbon Treaty in 2009 which gives legal effect to the Charter of Fundamental Rights provides new hope in this respect. Discussion will focus on the relevance and potential of the Charter and assess the extent to which discrimination case law, which has effectively invoked the Charter, may be useful in protecting social rights in the wake of the CoJ’s decision in Viking and Laval.