European Social Law as an Autonomous Legal Discipline

European Social Law as an Autonomous
Legal Discipline
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Nicola Countouris*
I. Introduction
The present chapter focuses on a specific, albeit broad, area of European public
law that is commonly referred to as ‘European labour law’, but that is also
known under other, and partly different, denominations such as EC employ-
ment law or European social law. Strictly speaking the EC Treaty only contains
a ‘Social Policy’ Title, composed of a number of articles and exhortatory provi-
sions, typically perceived as being incapable of direct effect,1 but providing the
legal basis for the adoption of secondary instruments addressing various areas
of individual and collective labour rights. Since the Treaty of Amsterdam, this
Title has been preceded by one on ‘Employment’, which is however mainly
preoccupied with the coordination of job creation policies within the EU rather
than with setting, as its name may suggest, employment protection standards.
Continental academics have been speaking of a ‘Droit social européen’2 since
the 1960s. In one of the most recent and authoritative textbooks on EC
Employment Law, its author expressly referred to ‘the employment law of the
European Union’.3 Several authors clearly prefer to refer to the discipline created
by the instruments produced under Chapter 1 of the Social Policy Title as
‘European Labour Law and Social Policy’,4 or more simply to ‘The Social
Dimension of the European Community’.5 The fact remains that all these text-
books, regardless of their titles, tend to refer to a rather distinct and homogenous
core area of European public law, and are a testimony to the existence of a body
* Lecturer in Law, University College London. An earlier version of this paper was presented at
the inaugural conference of the Faculty of Law, University of Cyprus, Nicosia, in October 2008.
I am grateful to the organizers, and in particular to Dr Constantinos Kombos. I am also grateful to
Professors Keith Ewing and Mark Freedland for comments and suggestions, general and specific,
on earlier drafts. The usual disclaimer applies.
1
Joined Cases 281/85, 283/85, 285/85, 287/85 Germany, UK and Others v Commission [1987]
2
ECR 3203. G Lyon-Caen, Droit Social Européen (Paris: Dalloz, 1969).
3
C Barnard, EC Employment Law (3rd edn, Oxford: Oxford University Press, 2006) vii.
4
A C Neal, European Labour Law and Social Policy (The Hague: Kluwer, 2002).
5
R Nielsen and E Szyszczak, The Social Dimension of the European Community (3rd edn,
Copenhagen: Copenhagen Business School Press, 1997).
96 Countouris
of law regulating the social and labour law aspects of the European Union, and
that can be brought together under a single analytical and descriptive framework.
This of course does not necessarily imply that European social and labour law
can also be conceptualized as autonomous and independent legal disciplines. The
central question that the present paper seeks to explore is whether this analytical
and descriptive framework has the necessary coherence and independence for

European social and labour law to be considered as an autonomous legal dis-
cipline. In order to address this question, Section II of the chapter formulates a
research hypothesis that is subsequently tested in the remaining sections. The
hypothesis is that European social law in general, and European labour law in
particular, are increasingly affected by a specific and complex dynamic of ‘Eur-
opeanization’ that is placing under serious strain the internal coherence of these
two interconnected fields of European law. In its most concise and brutal form
this research hypothesis postulates that, if the existing particular dynamic of
‘Europeanization’ continues unaltered, these two areas of law may well run the
risk of losing the characteristics commonly associated with ‘autonomous legal
disciplines’ and become ‘semi-autonomous’, or even de facto ‘non-autonomous’
legal disciplines.
This hypothesis is tested, through a selective and critical analysis of European
law and policy, and ECJ judgements, by reference to what this paper identifies as
the three main components of autonomy in the area of social and labour law in
general and European social and labour law in particular. The three compo-
nents, or elements, the article proposes to address are (a) the presence of a set of
legal institutions regulating a coherently identifiable social phenomenon or set of
phenomena, (b) the presence of a set of original regulatory techniques and
governance mechanisms, and (c) the existence of an original ideology under-
pinning the normative action and development of the discipline. As such, Sec-
tion III analyses the evolution of the various legal institutions and social
phenomena that have formed the subject-matter of what is here referred to as
European social and labour law. Section IV provides an overview of the various
regulatory techniques and governance mechanisms that have steered the devel-
opment of this legal discipline. Section V tries to identify the ideological
underpinning that drives the normative action of the discipline and therefore
sustains the legal institutions and regulatory mechanisms discussed in the pre-
vious two sections. The second part of this section provides a critical and con-
textual analysis of some recent ECJ decisions and of their effect on the ‘ideology’
of European social law.
Section VI provides a set of concluding remarks after an analysis that is,
perhaps inevitably given the vastness of the legal domain on which it focuses,
only summary and selective. It is argued that in spite of the startling complexity
and heterogeneity of the multifarious legal institutions, social phenomena, reg-
ulatory techniques, and governance mechanisms acting together in the shaping
of European social and labour law, none of these elements would pose, in and of
European Social Law as an Autonomous Legal Discipline 97
itself, an insurmountable obstacle to a claim to independence and autonomy.
But it is perhaps the third element, ideology, that risks derailing the course of
European social and labour law, making it a captive of a number of other well
established European ‘economic’ law disciplines increasingly acting as perva-
sively dominant ‘parent disciplines’.

II. Autonomy and European Social and Labour Law
Autonomy, in the area of social and labour law, is a complex term that deserves
some clarification. Taken literally the term may suggest a total separation of this
area of law from any other legal discipline. But as we know ‘no branch of law can
be “completely autonomous, within the body of the juridical order as a whole”.
Fortress labour law, like Fortress Wapping, cannot survive in total isolation.’6 For
instance it is accepted that labour law, both in Britain7 and in the rest of Europe,8
borrows heavily from contract and private law to shape fundamental aspects of
its edifice such as the contract of employment, or the very notion of termination
of the employment relationship. However this inner core of private law concepts
has been progressively covered with several thick coats of self-standing philoso-
phical rationales and legislative, collective, and judicial intervention such as to
emancipate this particular institution, and arguably labour law as a whole, from
its original private law vestiges, albeit without removing its influences altogether.9
This is perhaps an appropriate point to discuss why autonomy is so impor-
tant to labour law in general, and to European labour law in particular. While
the law has long been concerned with the regulation of individual and collective
work relations,10 it would be erroneous to assume that it has always done so by
subjecting these relations to a coherent and specifically dedicated set of rules. In
modern—by that meaning post-Industrial Revolution—times, individual work
relations, and the transactions arsing from them, were long treated as nothing
more than general transactions of a contractual nature between private indivi-
duals, and as such subjected to the rules and principles of general contract law.11
As for collective labour relations, for much of the eighteenth and nineteenth
centuries their regulation was effectively entrusted to criminal and tort law, with
6
Lord Wedderburn, ‘Labour Law: From Here to Autonomy?’ (1987) ILJ 1–2.
7
M. Freedland, The Personal Employment Contract (Oxford: Oxford University Press, 2003) 4
and ch 2.
8
M Freedland and N Kountouris, ‘Towards a Comparative Theory of the Contractual Con-
9
struction of Personal Work Relations in Europe’ (2008) ILJ 49. Ibid.
10
Law 273 of the Code of Hammurabi already provided that ‘If any one hire a day labourer, he
shall pay him from the New Year until the fifth month (April to August, when days are long and
the work hard) six gerahs in money per day; from the sixth month to the end of the year he shall
give him five gerahs per day.’ L W King, The Code of Hammurabi (Whitefish: Kessinger Publishing,
2004) 27.
11
M G Garofalo, ‘Un Profilo Ideologico del Diritto del Lavoro’ (1999) Giornale di Diritto del
Lavoro e Relazioni Industriali 9.
98 Countouris
the declared intention of restricting the liberty of workers to combine and
protect their interests collectively.12
It was only with time, and through the political pressures of organized labour
that, between the nineteenth and twentieth century, a specific and dedicated set of
rules was put in place to regulate relations, individual and collective, arising in and
around the workplace and in the labour market at large. While each of these rules

pursued specific, and as such often different, policy goals, they were all tied to
each other by a strong, clear, and overarching policy rationale that eventually came
to shape the distinct, and autonomous, discipline of labour law. This overarching
rationale, to borrow Hepple’s words, was informed by the notion of ‘the sub-
ordination of the individual worker to the capitalist enterprise’,13 and the idea that
ad hoc rules were needed to redress the inequalities inherent to the employment
relationship, as to ‘ne laisser au droit commun qu’une place subordonnée’.14
Given the struggles through which labour law managed to establish itself as an
autonomous legal discipline, it is hardly surprising that labour lawyers,
throughout the twentieth and twenty-first centuries, are quite protective of its
‘particularisme’.15 While they will openly acknowledge that some important
institutions that sit at the very centre of labour regulation remain influenced by
other disciplines, and that active borrowing from other legal domains is wel-
comed, and indeed often necessary, there is no doubt that modern day labour
lawyers would uncompromisingly argue that the fundamentally unequal power
relationships between labour and capital continue to justify the subjection of
work relations to a specific set of rules and regulatory principles. This simulta-
neous claim to autonomy and active borrowing from other disciplines may
well surprise experts from other fields of the legal science. But as Collins put it:
‘[a]lthough some fields of law such as contract and crime are marked by the quest
of coherence according to a small set of principles, Labour Law, like other con-
textual fields such as Family Law, has never aspired to such conceptual unity’.16
By the time the Treaty of Rome was being signed in 1957, labour law was an
established legal discipline in all the original six Member States. Labour lawyers
across Europe did not fail to notice that the founding Treaty was, almost by
design, oblivious to the desirability of any form of supranational social regula-
tion, being instead primarily concerned with the establishment of a functioning,
undistorted, and free common market, based on free movement of workers,
capital, services, and on freedom of establishment. Some of them went as far as
12
For a comparative account of this evolution in Western Europe see B Hepple (ed), The
Making of Labour Law in Europe (London: Mansell, 1986). For a deep account focusing mainly on
English law, cf S Deakin and F Wilkinson, The Law of the Labour Market (Oxford: Oxford Uni-
versity Press, 2005).
13
B Hepple (ed), The Making of Labour Law in Europe (London: Mansell, 1986) 11; this work
provides a comprehensive and comparative overview of the rise of labour law as a discipline in
Western Europe.
14 15
P Durand, ‘Le Particularisme du Droit du Travail’ (1945) Droit Social 303. Ibid.
16
H Collins, ‘Labour Law as a Vocation’ (1989) LQR 473.
depicting the Treaty as affected by ‘social frigidity’.17 This may have been an
inappropriate characterization, given that one area of labour regulation where
the founding fathers had expressed some concrete commitment in terms of
social progress was the area of equal pay and equal treatment, and this ‘when the
near totality of national systems was in this respect inactive or contrary’.18
Undeniably though, the idea, or ideology, underpinning the creation of the EEC

was that social and economic progress would have been delivered primarily by
the assumedly equitable and efficient redistributive mechanism of the common
market. As stated by Article 117(2) of the Treaty of Rome ‘the functioning of
the Common Market . . . will favour the harmonisation of social systems’.
It is in this context of ‘market dominance’ that, for reasons that go beyond
the purpose of this paper, from the 1970s onwards European Member States
and EEC institutions started taking their first steps, eventually leading to further
Treaty reforms, and to the build up of a body of regulatory instruments that we
now describe as European labour law. While the emergence of this body of law
has not altered the fundamental creed that social and economic prosperity are
primarily delivered by market freedoms, there is no question about the fact that
the European Union, ‘is not merely an economic union but is at the same time
intended, by common action, to ensure social progress and seek constant
improvement of the living and working conditions of the peoples of Europe’.19
What is questionable though, is whether the emergence of this European social
dimension, shaped in regulatory terms by the body of rules we refer to as Eur-
opean labour or social law, has succeeded in achieving a sufficient degree of
independence from the ‘market making’ rules, and their economic rationale, the
way national labour laws managed to emancipate themselves from, for instance,
contract and criminal law in the early decades of the twentieth century. Put
simply the question is whether, and to what extent, European labour law is
autonomous from the economic and market making rules that underpin the
functioning of the internal market.
The concluding sections of this paper will further discuss why it would be
desirable, and indeed essential, for European labour law to display a sufficient
degree of autonomy from these rules, the way national labour law systems dis-
play a considerable degree of autonomy vis-à-vis general private and public law.
But we can already suggest that the question of the autonomy of European social
law has more than a mere intellectual or academic relevance. Ultimately it seeks
to ascertain which body of European law governs the working lives of European
17
G F Mancini, ‘Principi Fondamentali di Diritto del Lavoro nell’Ordinamento delle Comunità
Europee’, in AA VV, Il Lavoro nel Diritto Comunitario e l’Ordinamento Italiano (Padova: Cedam,
1988) 26.
18
M Roccella and T Treu, Diritto del Lavoro della Comunità Europea (Padova: Cedam, 2007)
239.
19
Joined Cases C-270/97 and 271/97 Deutsche Post AG v Elisabeth Sievers and Brunhilde Schrage
[1996] ECR I-929, [55].
100 Countouris
citizens, according to which values, and the extent to which it has managed to
emancipate itself from other contiguous legal disciplines whose meta-legal pre-
occupation differs from the rationales traditionally underpinning labour law.
Once more, it is important to highlight that it would be unreasonable to expect
a contextual discipline such as European labour law to be autonomous in the
sense of being wholly conceptually isolated from other contiguous legal

domains, and particularly—as will be discussed in the next section—from areas
of European ‘economic law’.
It is therefore suggested that whatever conception of ‘autonomy’ one uses to
evaluate European social and labour law, it should be one that bows to the
traditional canons of ‘labour law’ by leaving enough room for other legal and
social disciplines providing, and shaping, the context in which its normative
effects are formed. With this important clarification in mind, it is suggested that
the structural elements of European social and labour law, against which the
autonomy of the discipline will have to be evaluated and assessed, are at least
three, namely (a) the presence of a set of legal institutions regulating a coherently
identifiable social phenomenon or set of phenomena, (b) the presence of a set of
original regulatory techniques and governance mechanisms, and (c) the existence
of an original ideology underpinning the normative action and development of
the discipline. The article therefore reverts to the analysis of these three broad
elements.
III. The Social Phenomena and the Legal Institutions of

European Social and Labour Law
The social phenomena addressed by European social and labour law are vast and
heterogeneous. By looking at the numerous textbooks written on the topic, one
can easily ascertain that this vastness often translates in a rather unpredictable
treatise of the academic topic by the various academic authors. It would be fair
to say that European labour law is very much in the eye of the beholder. In his
first edition of European Labour Law the late, and greatly missed, Brian Ber-
cusson provided a comprehensive overview of the progressive emergence of ‘EC
labour law’ as an academic discipline in various European Member States and
meticulously analysed the different ways in which this discipline was approached
by a number of legal textbooks and in different legal traditions.20 Given this
remarkable heterogeneity in approaching and structuring European labour as an
academic topic, authors of the calibre of Blanpain, one of the founders of the
discipline, have claimed that ‘an explicit and generally accepted definition of
European labour law is at present non-existent’.21
20
B Bercusson, European Labour Law (London: Butterworths, 1996) 14–21.
21
R Blanpain, European Labour Law (11th edn, The Hague: Kluwer, 2002) 31.
The fragmented panorama of the ratione materiae scope of European social
and labour law is further complicated by the fact that this scope has also
admittedly varied ratione temporis, as is typical of many areas of EC/EU law and
of the process of European integration as a whole. But, arguably, in order to have
even a superficial appreciation of what social phenomena European social and
labour law seeks to address, any analysis will have to focus on both the various

components of the discipline and on how they have progressively emerged and
evolved through the incremental process of integration that has so far shaped the
European Union.
While providing a single and universally acceptable definition of what con-
stitutes European social and labour law is an impossible task, it is arguably
possible and desirable to identify the social phenomena and legal dynamics that
shape the inner core and the outer limits of this elusive and multi-faceted dis-
cipline. Catherine Barnard points out that ‘any book about the employment law
of the European Union must consider the rules—both hard and soft—which
regulate the relationship between individuals and their employers, and between
worker representatives and employers’.22 The regulation of individual and col-
lective labour relations is surely one of the central phenomena of any social and
labour law discipline, and it is therefore only reasonable to assume that this
ought to be the case for European social and labour law. There is a vast and
complex body of law covering the regulation of working conditions and of
particular types of work relations, health and safety at work, equal treatment in
employment and social security entitlements, rights of employees during eco-
nomic restructuring, information and consultation of workers, and in some cases
the participation of workers in decision-making, that should certainly reside at
the very core of our academic discipline. The Treaty itself specifies however that
areas such as ‘pay, the right of association, the right to strike or the right to
impose lock-outs’, that at a domestic and international level sit at the very centre
of labour law, are outside the scope of EC law-making.23
It is arguably more difficult to define the outer substantive limits of the
discipline. Inevitably, any boundary between legal disciplines is bound to be
blurred. However it is not unreasonable to postulate that the outer limits of
European social regulation should be found in two legal disciplines, which while
contiguous to European social and labour law, ought to be treated as distinct.
The first one is the discipline of comparative labour law. The second one is the
discipline, or rather the set of disciplines, that can be broadly, and no doubt
a-technically, placed under the umbrella term of ‘economic law’.
The relationship between European social and labour law and comparative
labour law, or perhaps more accurately the ‘comparative legal method’24 of
22
C Barnard, EC Employment Law (3rd edn, Oxford: Oxford University Press, Oxford, 2006) vii.
23
Article 137(5) EC Treaty.
24
S Sciarra, ‘New Discourses in Labour Law: Part-time Work and the Paradigm of Flexibility’,
in S Sciarra, P Davies, and M Freedland (eds), Employment Policy and the Regulation of Part-time
102 Countouris
enquiry, is undoubtedly a complex one and deserves to be elaborated further.
This relationship develops along two main routes.
Firstly, it is almost self-evident that the rules adopted by the European insti-
tutions in the field of social and labour law have an impact in the domestic labour
law systems of the Member States. The type and intensity of the impact will
depend on the type of instrument adopted by the EC, and by a series of con-

tingent factors. In the majority of cases, regulation will occur ‘by means of dir-
ectives, minimum requirements for gradual implementation’.25 Directives leave
per se a considerable amount of discretion to implementing Member States and
this alone would justify some occasional incursions by those interested in Eur-
opean social and labour law, in the national legal order.26 More pressing justifi-
cations for the occasional intrusion into national labour laws for the purposes of
having a complete understanding of European social and labour law, will often
derive from the specific legal institutions elaborated and addressed in a given
Community instrument. For instance a number of Community directives in the
area of labour law shape their personal scope of application by reference to the
formula ‘contract of employment or employment relationship’,27 a formula that,
as confirmed by the ECJ,28 does not have a Community meaning, but is to be
determined by reference to the law, collective agreement, or practice in force
in each Member State. This is not the case for all areas of European social and
labour law. For instance, there are areas such as equal treatment or free movement
of workers that are more consistently claimed by European public law, and where
the scope for national variations is minimal. Unsurprisingly these are the areas
where the ECJ has been unequivocal in claiming a Community meaning for the
concepts of ‘employment relationship’29 and ‘worker’,30 shaping their respective
personal scope of application.31 For these areas more deeply characterized by
the dynamics of ‘Europeanization’, any intrusion of European social and labour
law in comparative labour law would only need to be limited and selective.
But arguably, for other areas, as stated by Gérard and Antoine Lyon-Caen ‘nous
Work in the European Union—A Comparative Analysis (Cambridge: Cambridge University Press,
2004) at 4, who adds that ‘Legal comparison may also help to reveal the tension—if there is one—
between national and supranational law-making’ (my emphasis). Cf M W Finkin, ‘Comparative
Labour Law’, in M Reinmann and R Zimmerman, The Oxford Handbook of Comparative Law
25
(Oxford: Oxford University Press, 2006) 1131. Article 137(2)(b) of the EC Treaty.
26
Cf B Hepple, ‘The Crisis in EEC Labour Law’ (1987) ILJ 77, 85–86.
27
Cf for instance Clause 2(1) of both Council Directive 97/81/EC of 15 December 1997
concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the
ETUC as amended by Dir 98/23/EC ([1998] OJ L131/10) consolidated [1998] OJ L131/13; and
Council Directive 99/70/EC of 28 June 1999 concerning the Framework Agreement on Fixed-
term Work concluded by UNICE, CEEP and the ETUC [1999] OJ L175/43 corrigendum [1999]
28
OJ L244/64. Case 105/84, A/S Danmols Inventar [1985] ECR 2639, [25]–[26].
29
Cf Case C-256/01 Debra Allonby v Accrington & Rossendale College and others [2004] ECR I-873.
30
Case 66/85 Lawrie-Blum [1986] ECR 2121.
31
For an overview cf N Countouris, The Changing Law of the Employment Relationship
(Aldershot: Ashgate, 2007) ch 5.
pouvons donc considérer que le droit social européen impose l’étude du droit social
comparé des . . . pays européens dans la perspective de leur harmonisation’.32
Secondly, as pointed out by several authors, national and comparative labour
law are not just the passive recipients of EC social and labour regulation, but
they are some of the main actors in shaping and informing its development. In
‘formulating EC labour law, the law and policy-making institutions of the EC

[have] to come to terms with [national] systems and [are] influenced by them’.33
It is therefore relevant to ‘consider how aspects of Community law are informed
by, and derived from, national employment laws’,34 and this is even more
important, as we shall see in the next section, in light of the development of
more ‘reflexive’ modes of regulation.35
As for ‘economic law’,36 its relationship with European social and labour law
is, if anything, even less straightforward. As it will be pointed out in Sections V
and VI of this paper, there is a growing concern that legal and political con-
siderations of an overwhelmingly economic nature are progressively contesting
with social and labour law a number of core areas of regulation. What this
paragraph seeks to describe is a rather different dynamic. Rather than exploring
these intrusive incursions of economic law in the territory of social regulation, it
seeks to highlight the role that economic law plays in defining the boundaries of
the discipline. There is no shortage of examples in which EC competition law
and European social law have been at loggerheads while trying to draw a line in
the sand separating their respective territories. In Albany it became evident that
Article 81 EC and collective bargaining and agreements were contending with
each other a highly sensitive and vitally important set of social and economic
arrangements. The Court had no doubt that ‘certain restrictions of competition
are inherent in collective agreements’, however it pointed out that ‘the social
policy objectives of such agreements would be seriously undermined if . . . sub-
ject to’ EC competition law. It therefore stated that ‘agreements concluded in
the context of collective negotiations in pursuit of such objective must . . . be
regarded as falling outside the scope of Article [81(1)] of the Treaty’.37
Another set of meaningful examples can be found in the territory contested
between EC State aid rules and European employment policy. European
employment policy actively supports, coordinates, and often finances a number
32
G Lyon-Caen and A Lyon-Caen, Droit Social International et Européen (16th edn, Paris:
33
Dalloz, 1985) 2–3. B Bercusson, European Labour Law (London: Butterworths, 1996) 9.
34
C Barnard, EC Employment Law (3rd edn, Oxford: Oxford University Press, 2006) vii.
35
Cf also M Weiss, ‘The Future of Comparative Labor Law as an Academic Discipline and as a
Practical Tool’ (2005) Comparative Labor Law & Policy Journal 169, 176.
36
I am grateful to Andrea Biondi for pointing out that the exact meaning, and descriptive value,
of the term is a rather contested one in academic debates. For the purposes of the present article we
seek to refer to areas of EC law such as competition law, State aid regulation, and free movement.
37
Case C- 67/96 Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie
[1999] ECR I-5751, [59]–[60].
104 Countouris
of initiatives aimed at creating or encouraging the creation of jobs in particularly
economically depressed areas of the Union. The EC will often allow Member
States to provide subsidies to the economic actors operating in these econom-
ically depressed areas. However these activities are monitored and policed not
just by European social and employment law and policy, but also, and crucially,
by EC competition and State aid legislation, keen to make sure that these sub-

sidies are justified and do not translate into unlawful State subsidies.38 There is
no shortage of examples in which the ECJ has been quite keen to apply Articles
87 and 88 of the EC Treaty precisely to trace the line that EC and national
employment policy should not overstep.39
But when this central core and these outer limits of European and social law
are analysed ratione temporis, then inevitably the social phenomena and legal
institutions which the discipline seeks to describe reach a further and higher level
of complexity and sophistication. For instance one must readily acknowledge
that the previously described regulatory core must coexist with another set of
rules regulating a social phenomenon that, right from the outset, the EEC
sought to instigate, namely free movement of workers. At a national level we have
grown accustomed to take for granted that, under normal circumstances,
workers—rectius citizens—have a right to move and establish a work relation-
ship freely with any willing employer.40 Unsurprisingly national labour law
grants a marginal and interstitial role to the analysis of important doctrines such
as ‘freedom of contract’ and ‘restraint of trade’. But it is easy to forget that these
fundamental economic rights only achieved a cross-national and European
dimension with the creation of the European Economic Community. Their
analysis is therefore bound to be much closer to the centre of the discipline of
European social and labour law, than to its domestic counterparts.
The inclusion within the scope of European social and labour law of areas of
regulation that prima facie appear as being cast as economic freedoms or rules,
receives further support by the evolution of the historical process of European
integration. A number of phenomena that were initially regulated by the Trea-
ties and by European public law on predominantly economic grounds progres-
sively emerged as milestones in the regulation of ‘Social Europe’. After free
movement, equality law arguably provides the second best example of this type
of trend. What was initially a marginal device aimed, in the suggestions
38
Cf for instance, Commission Regulation (EC) 2204/2002 of 12 December 2002 on the appli-
cation of Articles 87 and 88 of the EC Treaty to State aid for employment.
39
Cf C-310-99 Italy v Commission [2002] ECR I-2289. Cf A Biondi and L Rubini, ‘Aims,
Effects and Justifications: EC State Aid Law and Its Impact on National Social Policies’ in
E Spaventa and M Dougan, Social Welfare and EU Law (Oxford: Hart, 2005) 79; M Freedland et al,
Public Employment Services and European Law (Oxford: Oxford University Press, 2007) mainly
chs 1, 3, and 8.
40
After all, the French livret ouvrier was abolished in 1890 and the German ‘work-book’ leg-
islation was repealed as early as 1869.
advanced by the Ohlin report41 and required by France,42 at preventing and
redressing a possible market distortion, has unequivocally emerged as the most
dynamic and innovative area of European social regulation. Along this virtuous
path, equality has been framed and conceptualized as a fundamental right in a
process of progressive ‘constitutionalization’ that has involved, albeit to a lesser
degree, the status of other social rights and this will be briefly discussed in the

following section.
In this perspective another incumbent for the inclusion in the scope of Eur-
opean social and labour law would be EC employment policy. Even before the
introduction, with the Treaty of Amsterdam, of a Treaty Title on this subject,
some authors had anticipated that ‘the relationship between, on the one hand,
the employment policy of the European Union and, on the other hand, the
body of measures and doctrine which we identify as European Community
employment law’43 would have been a intense one. ‘Informed by social policy as
well as by economic policy, but ultimately owing more to the latter’,44 the
European Employment Strategy (EES) has had a (de)regulatory impact on both
EC and national employment policy45 and employment law,46 that unequi-
vocally bestows upon this area of EC regulation and governance a central role in
the changing architecture of European social and labour law. To give but one
example of the influence of EC employment policy on EC employment law, EC
directives in the area of atypical and flexible work explicitly provide that
employment policy concerns can trump equal treatment ones.47 The EES has
also steered the European debate towards the creation of regulatory objectives
such as employability, entrepreneurship adaptability, and equal opportunities,
with obvious implications for employment legislation. More recently ‘flex-
icurity’, as we will discuss in Section V, has been pervading the EC labour law
41
ILO, ‘Social Aspects of European Economic Cooperation’ (1956) 74 International Labour
Review 99.
42
See C Barnard, ‘The Economic Objectives of Article 119’, in Hervey and O’Keeffe (eds), Sex
Equality Law in the European Union (Chichester: Wiley, 1996).
43
M Freedland, ‘Employment Policy’, in P Davies, A Lyon-Caen, S Sciarra, and S Simitis,
European Community Labour Law—Principles and Perspectives (Oxford: Oxford University Press,
1996) 275.
44
D Ashiagbor, The European Employment Strategy—Labour Market Regulation and New Gov-
ernance (Oxford: Oxford University Press, 2005) 2.
45
Cf M Freedland et al, Public Employment Services and European Law (Oxford: Oxford Uni-
versity Press, 2007).
46
Cf D Ashiagbor The European Employment Strategy—Labour Market Regulation and New
Governance (Oxford: Oxford University Press, 2005) ch 6; N Countouris, The Changing Law of the
Employment Relationship (Aldershot: Ashgate, 2007) ch 6. O Kaufmann, ‘Weakening of dismissal
protection or strengthening of employment policy in France?’ (2007) ILJ 267.
47
Cf for instance clause 2(2) of Council Directive 99/70/EC of 28 June 1999 concerning the
Framework Agreement on Fixed-term Work concluded by UNICE, CEEP and the ETUC [1999]
OJ L175/43 corrigendum [1999] OJ L244/64. See also Article 1(3) of the newly adopted Directive
2008/104/EC of the European Parliament and of the Council of 19 November 2008 on Tem-
porary Agency Work [2008] OJ L327/9.
106 Countouris
regulatory discourse, promising to engage further with national employment
protection systems.48
One could have the impression that the social phenomena and legal insti-
tutions that European social and labour law seeks to regulate are almost an
open category, constantly changing over time. In this panorama, EC social
security law would also deserve a place, at least to the extent that it seeks to

coordinate national systems, and thus facilitate free movement of workers on a
non-discriminatory basis.49 This feeling of constant expansion and transform-
ation could find further corroboration in the circumstance that important EC
regulatory instruments in the area of social law often appear as appendices to
instruments dealing primarily with corporate or commercial law,50 and that the
list of new areas of EC law and EC regulation claiming a stake in our discipline
is practically a never ending one, with ‘European Contract Law’51 and
‘Immigration Law’52 being two of the most stealthy agents mounting sig-
nificant incursions into its territory.
There is hardly any doubt that European social and labour law covers an area
of socio-legal phenomena and institutions that is broader than what the black
letter of the two main EC Treaty Titles dealing with employment and social
policy would prima facie suggest. It is also, no doubt, broader than the typical
scope of national labour law. The breadth is such that, in and of itself, it may
even cast doubts over the coherence of the discipline as a whole. We shall return
to this point later, in Section VI, after an analysis of the subject’s main reg-
ulatory techniques, followed by that of its normative drive. But in concluding
this section we would like to suggest that this breadth may well be reconciled
48
Cf the explicit suggestion to reducing initial levels of job protection in open ended contracts
of employment contained in EC Commission, Towards Common Principles of Flexicurity: More and
Better Jobs Through Flexibility and Security (July 2007) 28. It should be noted that in November
2007 the European Parliament adopted a resolution taking a rather more benevolent view in
respect of job protection. Cf EP European Parliament resolution of 29 November 2007 on
Common Principles of Flexicurity (2007/2209(INI)).
49
Cf generally F Pennings, Introduction to European Social Security Law (Oxford: Hart, 2003).
50
Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European
company with regard to the involvement of employees [2001] OJ L294/22; Council Directive
2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with
regard to the involvement of employees [2003] OJ L207/25.
51
L Nogler, ‘Why Do Labour Lawyers Ignore the Question of Social Justice in European
Contract Law?’ (2008) 14 ELJ 483.
52
In spite of the abortive EC Commission ‘Proposal for a Council Directive on the conditions
of entry and residence of third-country nationals for the purpose of paid employment and self-
employed economic activities’, COM (2001) 386, the EU institutions continue to draw important
links between EU immigration laws an policies and the regulation of the internal labour market. Cf
for instance the Communication from the Commission on a policy plan on legal migration COM
(2005) 669 final, and the recent ‘Proposal for a Directive of the European Parliament and of the
Council providing for sanctions against employers of illegally staying third-country nationals’,
COM (2007) 249. In what is a relatively under-researched area cf EC Commission Green Paper on
an EU Approach to managing Economic Migration, COM (2004) 811 final, and EC Commission
Communication ‘Towards a Common Immigration Policy’, SEC (2007) 1632.
with a genuine claim to autonomy by acknowledging that the discipline should
be conceptualized in the broader terms of ‘European social law’, rather than in
the narrower ones of ‘European labour (or employment) law’ or ‘EC labour (or
employment) law’, precisely to reflect a legal tradition that is, perhaps inevitably,
contextually and conceptually different from the one that has shaped labour law
at a domestic level.

IV. Regulatory Techniques and Governance Mechanisms
Reflecting on the autonomy of a legal discipline may appear to many as a rather
introverted, and in that sense ‘academic’, exercise. Linking that discourse to the
existence of a specific set of regulatory techniques and governance mechanism
may, particularly in the common law world, seem pointless if not also plainly
erroneous. Surely continental traditions may well juxtapose ‘l’autonomisation du
droit du travail’ to the emergence of ‘une législation industrielle que l’on commence
à nommer “droit du travail” ’,53 and they may well consider their labour codes the
‘synthèse de cet effort d’encadrement et de normalisation’.54 But this paradigm of
autonomy, it could be argued, should certainly not monopolize the analysis of
the debate to the point of applying an analytical straightjacket to the assessment
of another field of, among the other things, supranational and intra-national law.
This is however not the intention of this section of the present article. Much
more modestly, the following paragraphs seek to explore the extent to which the
phenomena and legal institutions cursorily described in the previous section are
legislated upon and regulated by a set of instruments and mechanisms that are
functionally and materially separate from other instruments regulating different
areas of EU law. A rather appropriate analogy with national systems of labour law
would be the progressive emancipation of labour law from contract and com-
mercial law, with the progressive emergence of distinct rules, and principles, reg-
ulating work relations in a way that set them apart from other economic relations.
From this perspective, European social law presents a rather mixed scenario.
As already mentioned in the previous section, some important areas of European
social law are often shaped, if not directly regulated, by inherently ‘economic’
regulatory instruments, whether in the guise of free movement provisions55 or by
reference to instruments primarily introduced as appendices to EC company and
53
J Péllisier, A Supiot, and A Jeammaud, Droit du Travail (24th edn, Paris: Dalloz, 2008) 17.
54
M de Virville, Pour un Code du Travail plus Efficace: Rapport au Ministre des Affaires Sociales,
du Travail et de la Solidarité (15 January 2004) 5.
55
To name but a few, Directive 2004/38/EC on the right of citizens of the Union and their
family members to move and reside freely within the territory of the Member States [2004] OJ
L158/35; Directive 96/71/EC of the European Parliament and of the Council of 16 December
1996 concerning the posting of workers in the framework of the provision of services [1997] OJ
L18/1; Directive 2006/123/EC of the European Parliament and of the Council of 12 December
2006 on services in the internal market [2006] OJ L376/36.
108 Countouris
corporate law.56 This consideration however should not detract from the fact that
EC social law has a very specific arsenal of regulatory instruments applied, and
sometimes exclusively dedicated, to the regulation of its core areas, and that the
EC Treaty has effectively ‘constitutionalized’ a number of important social rights,
such as equal pay and treatment, and non-discrimination, held to be capable of
direct effect and considered by the ECJ as tantamount to general principles of

Community law.57 However, this process of constitutionalization is arguably an
imperfect and, at this stage, an incomplete one.58 While successive Treaty
amendments have confirmed the Union’s ‘attachment to fundamental social
rights as defined in the European Social Charter signed at Turin on 18 October
1961 and in the 1989 Community Charter of the Fundamental Social Rights of
Workers’,59 it is fair to say that the traditional incremental development of the
EC law in the human rights sphere has proceeded at a different, and certainly
slower, pace with respect to social rights. Already by the late 1990s it was clear
that ‘rather than listing fundamental rights, the [EC Treaty] establishes proce-
dures intended to secure their protection’60 and that ‘while the general references
suggest that fundamental rights are put on the same level irrespective of the
document they are defined in . . . the main sources of fundamental social rights,
the European Social Charter and the Community Charter, are in fact only seen as
a basis of Community policies’, and as such ‘risk being relegated to the status of
mere aspirations’,61 rather than being justiciable in character. The tool that
should have at least helped to rectify this state of affairs is the Charter of Fun-
damental Rights of the European Union.62 While some authors have expressed
their concerns in respect of its drafting and contents,63 at this stage, and pending
the difficult and uncertain ratification of the Lisbon Treaty, the very uncertainty
of its status and, as we shall see in the next section, the interpretation so far given
to its provisions by the ECJ, emerge as a major obstacle to a fuller con-
stitutionalization of social rights in the EU legal order.
56
Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European
company with regard to the involvement of employees [2001] OJ L294/22; Council Directive
2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with
regard to the involvement of employees [2003] L207/25.
57
Case 43/75 Defrenne v Sabena [1976] ECR 455. Cf E Ellis, EU Anti-discrimination Law
(Oxford: Oxford University Press, 2005); ch 2 in T Tridimas, General Principles of EU Law (2nd
edn, Oxford: Oxford University Press, 2007); M Bell, ‘Equality and the European Constitution’
(2004) ILJ 242.
58
P Syrpis, ‘The Treaty of Lisbon: Much Ado . . . but About What?’ (2008) ILJ 219.
59
Treaty of the European Union [2002] OJ C325, Preamble. The same instruments are referred
to in Article 136 of the EC Treaty.
60
Commission of the European Communities, Affirming Fundamental Rights in the European
61
Union: Time to Act (Brussels, 1999) 8. Ibid, 9.
62
[2007] OJ C303/1.
63
B Bercusson, ‘The Role of the EU Charter of Fundamental Rights in Building a System of
Industrial Relations at EU level’ (2003) Transfer: The European Review of Labour and Research
209; J Kenner, ‘Economic and Social Rights in the EU Legal Order: the Mirage of Indivisibility’ in
T Hervey and J Kenner, Economic and Social Rights Under the EU Charter of Fundamental Rights–A
Legal Perspective (Oxford: Hart, 2003) 1.
When in comes to secondary sources of European labour law, Article 137(2)(a)
ECT is a rather apt starting point. The article authorizes the EC to adopt non-
normative ‘measures designed to encourage cooperation between Member States
through initiatives aimed at improving knowledge, developing exchanges of
information and best practices, promoting innovative approaches and evaluating
experiences’ in all the areas of Article 137(1), as long as these are not aimed at

producing the ‘harmonisation of the laws and regulations of the Member States’.
Moreover, in all areas dealt with by the first paragraph of the Article, with the
exception of ‘social exclusion’ and ‘social protection systems’, the EC is also
allowed to set ‘by means of directives, minimum requirements for gradual
implementation’. Though ‘minimum harmonization’ is self-evidently the type of
harmonization typically sought by EC labour law, this ‘does not limit Commu-
nity action to the lowest common denominator’.64 Article 136 EC clearly spells
out, and this is too often overlooked, that harmonization should occur ‘while the
improvement is being maintained’. This also suggests that EC social law should
not become a pretext for driving down national labour standards, or deliberately
produce such an outcome,65 although the useful effect of such a principle has
been considerably watered down in the analysis of the ECJ.66
Some areas that can be broadly associated with European social law, such as
the coordination of social security systems and free movement, are legislated
upon more intensively by means of regulations, and occasionally EC institutions
will adopt non-binding instruments in areas of labour law where, in the absence
of the necessary consensus or of an explicit legal basis,67 binding instruments
cannot be adopted. But directives remain unequivocally the key regulatory
instrument for the establishment of EC rules in the area of labour and social law.
This is partly a reflection of national differences and sensitiveness in the area of
labour law, and partly a consequence of the political unwillingness—some
would say inability or lack of necessity—to proceed towards the unification of
European labour law, opting instead for ‘harmonization’.68
64
Case C-84/94 UK v Council [1996] ECR I-5755, [56].
65
This issue has been the object of intense academic work in Italy and Germany. Cf, just to
name a few, U Carabelli and V Leccese, Libertà di concorrenza e protezione sociale a confronto. Le
clausole di favor e di non regresso nelle direttive sociali, (WP C.S.D.L.E. “Massimo D’Antona”, N 35,
2005); U Carabelli, G Dondi, L Garofalo, and V Leccese, ‘Interpretazione delle Clausole di Non
Regresso’ (2004) Giornale di Diritto del Lavoro e Relazioni Industriali 535; M. Schmidt, ‘The
Mangold case before the ECJ’ (2006) 5 German Law Journal 505.
66
Cf the analysis of the ‘non-regression’ clause 8(3) of Council Directive 99/70/EC of 28 June
1999 concerning the Framework Agreement on Fixed-term Work concluded by UNICE, CEEP
and the ETUC [1999] OJ L175/43, contained in C-144/04 Werner Mangold v Rüdiger Helm
[2005] ECR 1-9981, paras [44]–[54], see also the Opinion of AG Tizzano, paras [43]–[79].
67
Cf for instance, Council Recommendation of 27 July 1992 concerning the promotion of
participation by employed persons in profits and enterprise results (including equity participation)
(92/443/EEC), [1992] OJ L245/53.
68
Cf C Barnard, ‘Flexibility and Social Policy’, and M Rodriguez-Pinero Royo, ‘Flexibility and
European law: a labour lawyer’s view’, in G De Burca and J Scott (eds), Flexible Governance in the
EU (Oxford: Hart, 2000).
110 Countouris
While a detailed analysis of the characteristics, drafting style, and specific
components of EC directives in the area of labour law is beyond the limited
scope of this paper, it is worthwhile pointing out that the impact that some of
these instruments have had in domestic legal systems cannot be underestimated.
Not only has the ECJ taken some of its landmark decisions on the effects of
Community law in the context of social and labour rights, but the very wording

of Community instruments in this area tends to support the view that Com-
munity institutions may struggle to pass legislation on labour standards, but that
once they have done so they tend to commit to its effective enforcement. For
instance the Information and Consultation Directive explicitly provides that
‘Member States shall provide for adequate sanctions to be applicable in the event
of infringement of this Directive by the employer or the employees’ represen-
tatives. These sanctions must be effective, proportionate and dissuasive.’69 Of
course, as pointed out in the previous section of the paper, the implementation
of directives is often fraught with difficulties, and some Member States have long
been known for adopting a very minimalistic approach during this process.70
But instruments adopted under the traditional, and top-down, ‘Community
Method’71 have long lost their monopoly in the regulation of EC social and
labour law. In fact this area of Community law was probably one of the first to
experiment and apply new modes of regulation, which eventually—at least in
the aspirations of some European institutions—evolved beyond their initial, and
fairly confined, normative dimension into more comprehensive modes of gov-
ernance in the European social sphere.
Arguably the first and foremost example of such instruments is what has
come to be known as ‘Social Dialogue’. First informally launched in the mid
1980s under the ‘Val Duchesse’ system, and eventually formalized with the
introduction of Article 118b EC in the Single European Act, the intersectoral
dimension of Social Dialogue72 was quickly conceptualized in academic dis-
course as akin to regulation in the social sphere, and certainly quite distant from
the idea(l) of ‘European collective bargaining’.73 While for a short period ‘bar-
gaining in the shadow of the law’ did deliver some regulatory output, the process
has arguably performed below the initial expectations of EC institutions.74
69
Article 8(2) of Directive 2002/14/EC of the European Parliament and of the Council of
11 March 2002 establishing a general framework for informing and consulting employees in the
European Community [2002] OJ L80/29.
70
J Malmberg (ed), Effective Enforcement of EC Labour Law (The Hague: Kluwer, 2003).
71
EC Commission, ‘European Governance—A White Paper’, COM (2001) 428 final, at 8.
72
Since 1997 incorporated in Articles 138–139 EC.
73
B A Hepple, European Social Dialogue: Alibi or Opportunity (London: Institute of Employ-
ment Rights, 1993); A Lo Faro, Regulating Social Europe: Reality and Myth of Collective Bargaining
(Oxford: Hart, 2000).
74
Cf EC Commission Communication, ‘Development of the Social Dialogue at Community
level’ COM (96) 448, para 67. Cf B Bercusson, ‘A Changing Institutional Architecture of the
European Social Model?’ in B Bercusson and C Estlund (eds), Regulating Labour in the Wake of
Globalisation—New Challenges, New Institutions (Oxford: Hart, 2008) 179.
The collapse in 2001 of the intersectoral negotiations on a framework agreement
to regulate agency work, and the eventual adoption in 2008 of a Directive on
temporary agency work75 which, while containing more flexibility elements than
the first draft originally proposed by the Commission in 2002,76 has been
saluted by both sides of industry with satisfaction, reveals how difficult it is to
find a legitimate place for ‘European collective bargaining’ in contentious areas

of regulation, particularly given the declining size of the law’s shadow, and the
absence of any EU-level right to take industrial action in support of ETUC’s
industrial muscle.77
More recently, social dialogue has evolved into ‘a more autonomous process
in which both initiative and implementation are in the hands of the social
partners’, and that is less reliant on the initiative or backing of Community
institutions.78 It has also been noted that the declining quantitative relevance of
intersectoral social dialogue has been more than matched by a flourishing action
at the sectoral level.79 While these are both accurate analyses, they need to be
qualified in a very important way, before drawing any conclusion as to the
present role of social dialogue. In the absence of a sound supranational ‘trickle-
down’ framework, it remains to be seen if any of this output has a material
impact on the livelihoods of European workers,80 or whether social dialogue
runs the risk of reverting to its initial ‘Val Duchesse’ role of a rather introverted,
when not self-referential, industrial relations forum, useful for the development
of a neo-corporative industrial relations culture, but often subservient to other
regulatory and policy goals, or modes of governance, pursued by the European
institutions.81 A telling example of this risk is the implementation of the 2002
Framework Agreement on Telework. Clause 2 of the Agreement provides that
‘[t]he passage to telework as such, because it only modifies the way in which
75
Directive 2008/104/EC of the European Parliament and of the Council of 19 November
2008 on Temporary Agency Work [2008] OJ L327/9.
76
EC Commission, ‘Proposal for a directive of the European Parliament and the council on
working conditions for temporary workers’, COM (2002) 149.
77
For a more lenient view of the process cf R Blanpain, European Labour Law (11th edn, Alphen
aan den Rijn: Kluwer, 2008) 188–202.
78
S Smismans, ‘The European Social Dialogue between Constitutional and Labour Law’ (2007)
ELRev 342.
79
European Commission, Recent Developments in the European Sectoral Social Dialogue (Office
for Official Publications of the European Communities, Luxembourg, 2006); on the nature of this
shift see the perceptive comments of A Lo Faro, ‘La Contrattazione Collettiva Trasnazionale: Prove
di Ripresa del Dialogo Sociale in Europa?’ (2007) Giornale di Diritto del Lavoro e di Relazioni
Industriali 551.
80
R de Boer, H Benedictus, and M van der Meer, ‘Broadening without Intensification: The
Added Value of the European Social and Sectoral Dialogue’ (2005) EJIR 51.
81
On the intersection between Social Dialogue and the EES/OMC conundrum cf EC Com-
mission, Communication—The European social dialogue, a force for innovation and change—Proposal
for a Council Decision Establishing a Tripartite Social Summit for Growth and Employment, COM
(2002) 341 final; Council Decision 2003/174/CE of 6 March 2003 establishing a Tripartite Social
Summit for Growth and Employment [2003] OJ L70/31.
112 Countouris
work is performed, does not affect the teleworker’s employment status’. In 2008
the Commission noted that ‘[t]his key provision for protecting teleworkers is
very clear. Regrettably, it . . . is not addressed by any of the legislative imple-
mentation instruments.’82
The perceived gap left by the declining relevance of ‘social dialogue’ as an
instrument for EC social regulation, has been more than filled, at least in

scholarly analysis, by the emergence of other ‘soft’ regulatory instruments and
processes. European employment policy was explicitly structured around the
distinctly reflexive European Employment Strategy. At least since the Lisbon
Summit in 2000, the Open Method of Coordination (OMC) has steadily
consolidated its role as a mainstream mode of governance in the area of social
regulation. Legal scholars and social scientists alike have not missed the oppor-
tunity to elaborate on the OMC, its role, legitimacy, regulatory, and de-
regulatory effects in the area of social policy.83 A highly debated issue is whether
relative progress in this area of governance is progressively ‘de-legalising’84 EC
social and labour law, by effectively slowing down, or redirecting towards more
neo-liberal and flexible regulatory outputs, the production of ‘hard’ law instru-
ments. The somewhat surreptitious ideological drive of the OMC has not gone
unnoticed amongst some labour lawyers. As Supiot has pointed out, the shift
from ‘hard law’ to ‘soft law’ is not exclusively dictated by the quest for a com-
promise, but also by some compelling ideological preferences favouring ‘gov-
ernance’ over ‘government’ and also ‘regulation’ (in French régulation), over
‘rule-making’ (réglementation).85 The assumption underlying this shift, which
Supiot views with considerable scepticism, is that the market, in the case of
Europe the internal market, has already reached an equilibrium in terms of hard
law réglementation and that all that it now needs to ensure its smooth func-
tioning is some fine-tuning, which can be provided through soft régulation,
rather than more rules. What is however clear is that the European institutions,
as well as the employers’ associations,86 remain firm believers in the virtues of
82
EC Commission, ‘Report on the implementation of the European social partners’ Framework
Agreement on Telework’, SEC (2008) 2178, 37.
83
Just to name a few that have been particularly concerned with ‘Social OMC’, cf D Ashiagbor,
The European Employment Strategy (Oxford; Oxford University Press, 2005); Chapter 3 in M
Freedland, P Craig, C Jacqueson, and N Kountouris, Public Employment Services and European
Law (Oxford: Oxford University Press, 2007); V Hatzopoulos, ‘Why the Open Method of
Coordination is Bad for You: a Letter to the EU’ (2007) ELJ 309; B Bercusson, ‘A Changing
Institutional Architecture of the European Social Model?’ in B Bercusson and C Estlund (eds),
Regulating Labour in the Wake of Globalisation—New Challenges, New Institutions (Oxford: Oxford
University Press, 2008), 179.
84
This term is borrowed from C Joergens, ‘Integration through De-legalisation’ (2008) ELRev
291.
85
A Supiot, ‘Critique de la “Régulation” ’, in Critique du Droit du Travail (2nd edn, Quadrige
Presse Universitaire de France, 2002) IX.
86
S Sciarra, ‘EU Commission Green Paper “Modernising labour law to meet the challenges of
the 21st century”’ (2007) ILJ 378.
OMC as a mode of governance in the social sphere, and its spread in other areas
of social regulation is more than likely.
Soft law in the area of EC labour law, however, predates the OMC. Even core
areas such as equal treatment, have long been co-regulated by means of soft law
instruments,87 and the use of the European Social Fund and Structural Funds88
as a means to foster EC social policy goals could legitimately be seen as falling

within the increasingly mixed hard/soft law approach of the EC towards reg-
ulation in the social sphere.89
There is hardly any doubt that the EC has developed a complex system of
regulatory instruments and modes of governance in the social sphere. Increas-
ingly, EC institutions are trying to square the circle of this complex framework
in which hard law and soft law, national, supranational, and international, social
and economic instruments coexist, but without necessarily interacting coher-
ently with each other. There seems to be a recognized and unresolved tension
between the OMC on the one hand, and ‘hard’ EC labour law on the other. In
the debate preceding the drafting of the Constitutional Treaty, the Working
Group on Social Europe recommended that the Constitution should specify
‘that the method can be applied only where no Union legislative competence is
enshrined in the Treaty and in areas other than those where the coordination of
national policies is governed by a special provision of the Treaty defining such
coordination’.90
Autonomy of course has an upwards vertical dimension, just as it has a
downwards one. The ECJ has been essential in fostering the claim to autonomy
and supremacy of EC social regulation vis-à-vis other supranational and interna-
tional instruments, just as it has been pivotal in establishing its supremacy vis-à-vis
national law. For instance, in respect of labour standards set by the International
Labour Organization (ILO) it was not before long that the ECJ was asked by a
national referring court to pronounce on the possible incompatibility between a
national, and ILO inspired, labour standard and a provision of a Community
instrument.91 The ECJ pointed out that
the national court is under an obligation to ensure that [EC labour law] is fully complied
with by refraining from applying any conflicting provision of national legislation, unless
87
Cf Council Resolution of 12 July 1982 Concerning the Promotion of Equal Opportunities
for Women [1982] OJ C186/3.
88
Council Regulations (EEC) 2081/93, 2082/93, 2083/93, 2084/93, and 2085/93 governing the
Structural Funds refer to the principle of equal opportunities for men and women on the employ-
ment market as a goal to which structural measures should contribute.
89
M Freedland et al, Public Employment Services and European Law (Oxford: Oxford University
Press, 2007) 91–95; D M Trubek and L G Trubek, ‘Hard and Soft Law in the Construction of
Social Europe: the Role of the Open Method of Co-ordination’ (2005) ELJ 343.
90
The Secretariat of the European Convention, ‘Final Report of Working Group XI on Social
Europe’, Working Group on Social Europe, WG XI 9, CONV 516/1/03, REV 1, Brussels, 4
February 2003, at 18.
91
Case C-158/91 Criminal proceedings against Jean-Claude Levy [1993] ECR I-4287.
114 Countouris
the application of such a provision is necessary in order to ensure the performance by the
Member State concerned of obligations arising under an agreement concluded with non-
member countries prior to the entry into force of the EEC Treaty.92
However in light of cases such as Stoeckel,93 Case C-197/96,94 and Case C-203/0395
there is little doubt that EC labour law has actually had the effect of displacing
domestic, ILO inspired, standards on the prohibition of night work for women

and rendered them inapplicable.96 There seems to be no valid reason why
European social law’s autonomy should result in a displacement of more
protective national standards adopted in light of ratified ILO instruments in an
area, such as European labour law, where EC institutions can only lay down
minimum standards.97
The ECJ has been far more deferential towards ECHR jurisprudence affecting
fundamental human rights than to ILO standards.98 As highlighted by the Simitis
Report, ‘the ECJ seems to distinguish between the ECHR and other Conventions.
Whereas the first “forms part” of Community Law, the latter operate merely as
guidelines for the interpretation and application of Community Law.’99 While
this deference can be partly explained on constitutional grounds,100 there is no
reason why EC labour law should not be able to maintain its autonomy whilst
incorporating ILO standards, just as national labour law systems remain autono-
mous when ILO standards are ratified. This is effectively acknowledged in recent
initiatives taken by the Commission and the Council, aimed at enhancing the
cooperation between the EC and the ILO in the social sphere.101
What emerges from the analysis carried out in the previous paragraphs is that
European social and labour law can rely on a set of fairly autonomous, at times
exclusively dedicated, regulatory instruments and governance mechanisms. These
92
Ibid, [22].
93
Case C-345/89 Criminal proceedings against Alfred Stoeckel [1991] ECR I-4047.
94
Case C-197/96 Commission of the European Communities v French Republic [1997] ECR
95
I-1489. Case C-197/03 Commission v Austria [2005] ECR I-935.
96
Interestingly Denmark, after a WHO International Agency for Research on Cancer report
found a strong correlation between night work of women and breast cancer, has recently started
paying compensation to women that developed the disease. Cf Marie Louise Sjølie, ‘Breast Cancer
Patients Get Landmark Payout’, The Guardian (Tuesday 17 March 2009).
97
This was the stance of the ECJ in Opinion 2/91 [1993] ECR 1-1061, para [18]. Cf P Craig
and G De Burca, EU Law (4th edn, Oxford: Oxford University Press, 2008) at 100. Cf A Perulli,
Diritto del Lavoro e Globalizzazione (Padova: Cedam, 1999) 136.
98
For a recent decision see C-117/01 KB v NHS Pensions Agency [2004] ECR I-541.
99
Commission of the European Communities, Affirming Fundamental Rights in the European Union:
100
Time to Act (Brussels, 1999) 10. Article 6(2) TEU.
101
Cf for instance Council Decision 2007/431/EC of 7 June 2007 authorising Member States to
ratify, in the interests of the European Community, the Maritime Labour Convention, 2006, of the
International Labour Organisation [2007] OJ L161/63. At times ILO provisions are mainstreamed
in EC instruments that are not directly concerned with social regulation, cf Directive 2004/17/EC
of the European Parliament and of the Council of 31 March 2004 coordinating the procurement
procedures of entities operating in the water, energy, transport and postal services sectors [2004] OJ
L134/1, Preliminary observation para 44, and Article 59 in conjunction with Annex XXII. See
R Blanpain, European Labour Law (11th edn, The Hague: Kluwer, 2002) 120–121.
have at least an aspiration to normative independence from both national and
supranational social rules, and it is fair to say that they reflect a fairly neat vertical
(ie between the supranational and national level) hierarchy of norms. What is
however still uncertain, and what the following section seeks to clarify, is the
extent to which this aspiration to normative independence translates in respect of
other European and EC instruments that—whilst not directly related to social

law but more inspired by economic considerations—concur in shaping, as dis-
cussed in Section III, the general domain of the discipline under examination.
V. Ideology and Normative Action

There is, we suggest, a third hurdle that a discipline needs to address in order to
advance a claim to autonomy. It must be endowed with an autonomous ideo-
logical drive shaping its normative action. Other, and eminent, authors have had
analogous concerns in respect of national and supranational labour law in the
past. Sciarra highlights that
[h]istorically, labour law has been trying to gain autonomy from commercial law. As
Davies and Freedland have argued, the boundary between the two disciplines is not so
clear, despite the fact that the ‘underlying principles’ inspiring them are so different:
‘labour law has traditionally been concerned with the protection of employees against
the operation of market forces, whereas commercial law has been concerned with pro-
viding a framework within which market forces could operate effectively’.102
From the considerations expressed in Sections III and IV of this article it should
already be evident that such a clear-cut dichotomy between protection against the
market forces on the one hand, and regulation for the effective operation of
market forces on the other can hardly be expected from the wider discipline of
European social law as a whole. Important and structural components of the
discipline, for instance the rules on free movement of workers, were originally
adopted precisely with the intention of providing a framework within which
(European labour) market forces could operate effectively. Therefore any analysis
of the underlying principles of European social law must begin by acknowledging
that some of its components have very little to do with social regulation, as
commonly understood. Unsurprisingly academic authors have correctly con-
ceptualized European social regulation as concerned, to a large extent, with
‘market making’.103 According to these authors market making remains a central
102
S Sciarra, The Evolution of Labour Law—1992–2003 (2005) 23.
103
W Streeck, ‘From Market Making to State Building? Reflections on the Political Economy of
European Social Policy’, in S Leibfried and P Pierson (eds), European Social Policy: Between
Fragmentation and Integration (Washington DC: The Brookings Institution, 1995) 389; C Bar-
nard, EC Employment Law (3rd edn, Oxford: Oxford University Press, 2006) 51. Cf the sophis-
ticated analysis of P Syrpis, EU Intervention in Domestic Labour Law (Oxford: Oxford University
Press, 2007).
116 Countouris
preoccupation of EC social law and policy, even in the development of those
areas, such as for instance EC equal treatment legislation,104 that have more
forcefully emerged as bastions for fair and just working conditions.
But of course this provisional assessment can only be partial. Whilst some
areas of European social law have been set up on declaredly economic rationales,
this is not saying that they have remained trapped in a purely market making, or

market correcting, dimension. Social goals are explicitly contained in the EC
and EU Treaties and in the many secondary instruments and governance
mechanisms shaping European social law.105 Article 136(1) EC, in introducing
the Chapter on Social Provisions, adamantly states that the normative action
in the areas of European social law that arguably constitute the epicentre of
the discipline ‘shall have as their objectives the promotion of employment,
improved living and working conditions’, and does so by reference to the
‘fundamental social rights . . . set out in the European Social Charter signed
at Turin on 18 October 1961 and in the 1989 Community Charter of the
Fundamental Social Rights of Workers’. Periodically labour lawyers will rejoice
at the latest decision of the ECJ defending supranational social rights against
recalcitrant Member States.106 Even authors that take a realistic view over the
limits of social regulation in the EC acknowledge that ‘[o]n a strategic level,
the alliance between social and economic rationales has led to progress that
might not have been achieved without the economic partner’, while correctly
highlighting that ‘this has been at the cost of a significant dilution of
standards’.107
Arguably this dilution of standards is also attributable to a further element,
that inevitably encroaches upon the discipline’s ideology and normative drive.
The EC being formed by Member States with different labour and industrial
relations traditions, the production of European social law needs to strike a
balance, not only between EC social and economic objectives but also between
different national ideologies, or clusters of ideologies, and approaches to labour
market regulation in what is a complex, but long established and researched,108
dynamic. In this process it is hardly surprising that many have hoped to rely on
the fundamental human rights nature of some social rights to bolster their status
104
E Ellis, EU Anti-discrimination Law (Oxford: Oxford University Press, 2005); S McInerney,
‘Bases for Action Against Race Discrimination in EU Law’ (2002) ELRev 72.
105
P Syrpis, EU Intervention in Domestic Labour Law (Oxford: Oxford University Press, 2007)
61–71.
106
L Zappalà, ‘Abuse of Fixed-term Employment Contracts and Sanctions in the Recent ECJ’s
Jurisprudence’ (2006) ILJ 439, E Muir, ‘Enhancing the Effects of Community Law on National
Employment Policies: the Mangold Case’ (2006) ELRev 879.
107
S Fredman, ‘Transformation or Dilution: Fundamental Rights in the EU Social Space
(2006) ELJ 46.
108
For some of the earlier analyses, cf P L Davies, ‘The Emergence of European Labour Law’ in
W McCarthy (ed), Legal Intervention in Industrial Relations: Gains and Losses (Oxford: Blackwell,
1992) 313; B Bercusson, ‘The Conceptualization of European Labour Law’ (1995) ILJ 3.
within the sphere of European social regulation,109 while acknowledging, as
briefly mentioned in the previous section, that there are some structural and
political limits to what this process can achieve.110
Surely, if European social law as a whole is underpinned by an ideology, this is
clearly not inspired by any maximalist view of social rights. On the contrary, in
recent years the European institutions have been trying to square the circle

between the economic and social antithesis by developing a normative synthesis
centred around the notion of ‘flexicurity’, a concept that is predominantly viewed
by commentators as a threat to high standards of employment protection legis-
lation.111 Unfortunately its promise to deliver more and better jobs112 appears
emptier than ever in the current climate of economic recession,113 and in any case
its polysemantic and acontextual nature runs the risk of being ‘perceived as an
empty notion’,114 thus failing to deliver any more clarity and precision to our
search for a precisely identifiable ideological rationale for European social law.
Given this complex panorama we can safely argue that the quest for the
identification of a distinct ideology and normative drive sustaining European
social law is a very hard task indeed. We know that a rationale exists and that it is
inextricably linked with the regulation of the European internal market, and in
particular with the regulation of the European labour market. While acknowl-
edging that it is extremely elusive, we also know that—perhaps inevitably—it is
shaped by both social and economic concerns, as well as being affected by both
national and supranational political pressures and normative inputs. To make
things more complicated, it changes over time and, crucially, manifests itself in
different nuances across different normative components. As lawyers we are
inherently unhappy with this admittedly imprecise, almost unidentifiable, nat-
ure of the ideology sustaining ‘our’ discipline. Indeed one may even be tempted
109
D Ashiagbor, ‘Economic and Social Rights in the European Charter of Fundamental Rights’
(2004) EHRLR 62; B Bercusson, ‘Episodes on the Path Towards the European Social Model: The
EU Charter of Fundamental Rights and the Convention on the Future of Europe’, in C Barnard,
S Deakin, and G Morris, The Future of Labour Law—Liber Amicorum Sir Bob Hepple QC (Oxford:
Hart, 2004) 179; S Fredman, ‘Transformation or Dilution: Fundamental Rights in the EU Social
Space’ (2006) ELJ 41; B Bercusson, ‘Social and Labour Rights under the European Constitution’, in
G De Burca and B De Witte, Social Rights in Europe (Oxford: Oxford University Press, 2005) 169.
110
J-F Akandji-Kombé, ‘The Material Impact of the Jurisprudence of the European Committee
of Social Rights’, in G De Burca and B De Witte, Social Rights in Europe (Oxford: Oxford University
Press, 2005) 89; B Hepple, Publication Review of Ch Kaufmann, Globalisation and Labour Rights—
The Conflict between Core Labour Rights and International Economic Law (2007) ILJ 491.
111
Lord Wedderburn, ‘Labour law 2008: 40 years on’ (2007) ILJ 397; L Funk, ‘European
Flexicurity Policies: a Critical Assessment’ (2008) IJCLLIR 349, S Fredman, ‘Women at Work:
The Broken Promise of Flexicurity’ (2004) ILJ 299; European Parliament, ‘European Parliament
Resolution of 29 November 2007 on Common Principles of Flexicurity’, (INI/2007/2209).
112
European Commission, Towards Common Principles of Felxicurity: More and Better Jobs
through Flexibility and Security (Office for Official Publications of the European Communities,
113
Luxembourg, 2007). As Bill Clinton once said, ‘It’s the economy. . .!’
114
S Sciarra, ‘EU Commission Green Paper “Modernising labour law to meet the challenges of
the 21st century”’ (2007) ILJ 379.
118 Countouris
to suggest that, in the absence of a precise definition of its rationale, we should
perhaps concede that our discipline fails in its third test.
However, it is argued here, this conclusion would be inaccurate, unreason-
able, and untimely. It would be inaccurate because, elusive and ambivalent as it
may be, a rationale for European social law actually exists, located as it is
between social and economic concerns. We may not like it, as lawyers in general

and labour lawyers in particular, due to its imprecision and ambiguity, and its
lack of firm commitment on the traditional, and often idealized, rationales
sustaining domestic labour law. But undeniably, while juggling with national
and supranational, and economic and social concerns, it has sustained the
emergence and development of the complex and composite, but increasingly
distinct, body of law that we can identify, and study, as ‘European social law’.
Secondly, our unwillingness to acknowledge its existence would also be
unreasonable, as in demanding from it a univocal content and normative drive,
we would fail to recognize that it is there to underpin a uniquely composite
discipline, spanning areas as diverse as free movement of workers and the
representation of workers in European work councils. There is no doubt that the
discipline would benefit from a clearer, more committed, rationale—though
arguably the same could be said about domestic labour law—but this is an
entirely different matter from a principled objection to recognizing its current
existence. This is certainly not an invitation to be complacent. On the contrary,
it is arguable that the broader and more composite the discipline, the greater the
need to streamline it alongside a clearer and more visible rationale, and a few
suggestions along these lines will be made in the concluding paragraphs of this
article.
Thirdly, it would be untimely, as by conceding defeat we would fail to pre-
pare ourselves to contrast the new emerging challenges with the autonomy of
European social law. The remaining paragraphs of this section seek precisely to
expand on this latter point.
Section III of this paper described European social law as defined, in its outer
conceptual limits, by various areas of ‘economic law’. But it also highlighted the
fact that, in recent times, there have been growing concerns about ‘economic
law’, and legal and political considerations of an overwhelmingly economic
nature, progressively contesting with social and labour law a number of core
areas of regulation. A visible, and intensely commented upon, example of this
trend is represented by a string of recent ECJ decisions, such as Viking,115
Laval,116 Rüffert,117 and C-319/06,118 that strike to the heart of labour and
115
Case C-438/05 International Transport Workers’ Federation v Viking Line ABP [2008] 1
CMLR 51.
116
Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet [2008] 2 CMLR 9.
117
Case C-346/06 Rüffert v Land Niedersachsen [2008] 2 CMLR 39.
118
Case C-319/06 Commission of the European Communities v Luxembourg [2008] OJ C209/4–5.
social law. While a detailed analysis of these judgments is beyond the scope of
this article,119 it has been suggested that ‘despite recognition of the right to
strike, the limitations on the exercise of that right laid down by Community law
subsume much of the right. The precedence of the economic over the social is
pretty clear.’120 In spite of the declared lack of legislative competence in the areas
of freedom of association and the right to strike, the ECJ has effectively pro-

ceeded to negatively integrate these areas of national, but inevitably European,
collective labour law,121 dragging them to the centre of the debate surrounding
the discipline of European social law.122
If confirmed, and consolidated upon by future decisions, the reasoning
adopted in these cases would shape in completely different terms the relation-
ship between European social law and ‘economic law’. As noted by Azoulai,123
cases like Viking represent a departure of the ECJ from its earlier hands-off
approach, exemplified by cases such as Albany,124 in which EC competition law
and social law were seen as irreconcilable and presiding over each other’s border.
Now the ECJ, at least in respect of the relationship between collective labour law
on the one side and free movement of services and establishment on the other,
changes its stance and not only suggests that free movement rules, underpinned
as they are by economic considerations,125 must be balanced against the social
considerations sustaining collective labour rights, but also that the former should
prevail over the latter. This may suggest, at least implicitly, that fundamental
market freedoms enjoy a position of supremacy vis-à-vis social norms, some-
thing which is arguably not obvious from an interpretation of the Treaties, nor is
it justifiable by reference to the national constitutional traditions of the Member
119
Cf C Barnard, ‘Social Dumping or Dumping Socialism’ (2008) CLJ 262; J Malmberg and
T Sigeman, ‘Industrial Actions and EU Economic Freedoms: the Autonomous Collective Bar-
gaining Model Curtailed by the European Court of Justice’ (2008) CML Rev 1115; P Syrpis and
T Novitz, ‘Economic and Social Rights in Conflict: Political and Judicial Approaches to their
Reconciliation’ (2008) ELRev 411; A C L Davies, ‘One Step Forward, Two Steps Back? The
Viking and Laval Cases in the ECJ’ (2008) ILJ 126.
120
Cf C Barnard, ‘Social Dumping or Dumping Socialism’ (2008) CLJ 264.
121
Technically, these cases deal with collective bargaining but, as suggested in a recent decision
of the European Court of Human Rights, this right can be seen as part of freedom of association.
See Case of Demir and Baykara v Turkey (Application no 34503/97), paras [153]–[154]. I am
grateful to Keith Ewing for alerting me as to this change in the Court’s jurisprudence.
122
Or as elegantly put by Azoulai, ‘including the transational labour conflict within Community
law’, L Azoulai, ‘The Court of Justice and the Social Market Economy’ (2008) CML Rev 1354.
123
L Azoulai, ‘The Court of Justice and the Social Market Economy’ (2008) CML Rev
1347–1348.
124
Case C-67/96, Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie
[1999] ECR I-5751.
125
‘Since the Community has thus not only an economic but also a social purpose, the rights
under the provisions of the EC Treaty on the free movement of goods, persons, services and capital
must be balanced against the objectives pursued by social policy’ Case C-341/05 Laval un Partneri
Ltd v Svenska Byggnadsarbetareforbundet [2008] 2 CMLR 9, [105].
120 Countouris
States where economic freedoms do not enjoy a supreme or prima facie ordre
public absolu status.126
VI. Conclusions

Inevitably this short analysis of the Court’s recent case law on the conflict
between fundamental labour rights and fundamental market freedoms, does not
make justice of the legal and factual intricacies of these judgments, nor of the
(many) further pitfalls opened by the Court’s reasoning for a number of national
labour law systems, and of the (very few) realistically possible ways out.127 But
this was not the main preoccupation of the previous section, or of the paper as a
whole. The purpose of this chapter was to assess the credentials of European
social and labour law as an autonomous legal discipline. This is more than a
purely academic exercise. Ultimately it seeks to ascertain which body of Eur-
opean law governs the working lives of European citizens, according to which
values, and the extent to which it has managed to emancipate itself from other
contiguous legal disciplines whose meta-legal preoccupations differ from the
rationales traditionally underpinning labour law.
The chapter began by considering the extent to which this discipline can be
conceptualized by reference to a defined set of social phenomena and legal
institutions coherently falling within its material scope. It was pointed out that
the subject-matter of our discipline extends well beyond the EC Treaty notions of
‘social policy’, ‘employment policy’, and equality law, and that for these core
components to be evaluated and studied in context, other areas of EC, supra-
national, and national regulation need to be brought within the scope of our
analysis. In particular it was argued that the correct and contextual understanding
of European social and labour law demands greater attention to EC ‘economic
law’ and comparative labour law, and possibly, in the near future, to other legal
disciplines and discourses ranging from immigration to EC contract law. The
126
Cf for instance L Mariucci, ‘Le Fonti del Diritto del Lavoro’ (2008) Rivista Giuridica del
Lavoro 323; G Lyon-Caen, Négotiation Collective et Législation d’Ordre Public’ (1973) Droit
Social 89; M-A Souriac-Rotschild, ‘Le Contrôle de la Légalité Interne des Conventions et Accords
Collectifs’ (1996) Droit Social 395. For an analysis of the notion of inderogability in European
law, cf S Sciarra, ‘Norme Imperative Nazionali ed Europee: Le Finalità del Diritto del Lavoro’
(2006) Giornale di Diritto del Lavoro e di Relazioni Industriali 39.
127
The literature is vast and hardly leaves any stone unturned. Cf R Eklund, ‘A Swedish Per-
spective on Laval’ (2008) CLLPJ 551; B Veneziani, ‘La Corte di Giustizia ed il Trauma del Cavallo
di Troia’ (2008) Rivista Giuridica del Lavoro 275; G Orlandini, ‘Autonomia Collettiva e Libertà
Economiche: alla Ricerca dell’Equilibrio Perduto in un Mercato Aperto e in Libera Concorrenza’
(WP C.S.D.L.E. ‘Massimo D’Antona’, N. 66, 2008); S Robin-Olivier and E Pataut, ‘Europe
Sociale ou Europe Èconomique’ (2008) Revue de Droit du Travail 80. A comprehensive list can be
found on the ETUC website at <http://www.etui.org/en/Headline-issues/Viking-Laval-Rueffert-
Luxembourg/2-Articles-in-academic-literature-on-the-judgements> (15 December 2008).
analysis of the regulatory techniques and governance instruments shaping the
discipline lead to a similarly expansive provisional conclusion. The correct
understanding of European social and labour law as an autonomous legal dis-
cipline requires an enquiry that goes beyond the study of traditional ‘hard law’
mechanisms of regulation. Soft and reflexive mechanisms, as well as suprana-
tional ILO and Council of Europe instruments, have slowly but steadily earned

their place within the discipline. Partly in an attempt to reconcile this substantive
and regulatory heterogeneity with a genuine (albeit inevitably contextual) claim
to autonomy, the article has suggested that our discipline could be suitably
defined in the broader terms of ‘European social law’.
But it is perhaps the third element, ideology, that risks derailing the course
of European social law, making it a captive of a number of other well estab-
lished European ‘economic’ law disciplines increasingly acting as pervasively
dominant ‘parent disciplines’. While European social law has managed to sur-
vive its internal tensions between social and economic rationales, it has been
argued that a number of recent ECJ decisions appear to suggest that even core
and fundamental social rights will have to bow to the might of free movement
provisions, suggesting a hierarchy of norms for the discipline of European
social law, with free movement of services provisions uncompromisingly at its
apex.128 If this assessment were to hold true, this specific rationale could pro-
gressively trickle down through the whole discipline, effectively corroding its
various components while diminishing its status to a semi-autonomous or
completely heteronomous discipline. Ultimately, the working lives of European
citizens would be governed by rules that disregard the traditionally egalitarian
and decommodifying concerns on national labour law, in favour of labour
market regulation.
Arguably a more correct approach would require the establishment of a dif-
ferent type of hierarchy of sources, sustained by a different rationale, with pri-
macy accorded to fundamental labour rights. If EU law is to hold true to its
commitment to human rights, particularly as developed by the European Court
of Human Rights (ECtHR), it has now been given a golden opportunity for
reconsidering its recent inroads into social law. In the case of Demir and Baykara
v Turkey the ECtHR considered that
having regard to the developments in labour law, both international and national, and to
the practice of Contracting States in such matters, the right to bargain collectively with
the employer has, in principle, become one of the essential elements of the ‘right to form
128
The European Parliament has been swift at noticing this risk and promptly suggested ‘that
freedom to provide services is not superior to the fundamental rights contained in the Charter of
Fundamental Rights of the European Union and in particular the right of trade unions to take
industrial action’, European Parliament, ‘European Parliament Resolution of 22 October 2008 on
Challenges to Collective Agreements in the EU’, (2008/2085(INI)), para 5.
122 Countouris
and to join trade unions for the protection of [one’s] interests’ set forth in Article 11 of
the Convention.129
Even more explicitly, in Enerji Yapi-Yol Sen v Turkey the ECtHR, ‘rappelle que
la Charte sociale européenne reconnaı̂t aussi le droit de grève comme un moyen
d’assurer l’exercice effectif du droit de négociation collective’.130 As such the ECJ,
and the EU as a whole, should be inclined not to ‘accept restrictions that affect

the essential elements of trade-union freedom, without which that freedom
would become devoid of substance’.131
129
Demir and Baykara v Turkey (Application no 34503/97), para [154]. I am grateful to Keith
Ewing for alerting me to this important, and long awaited, change in the Court’s jurisprudence.
130
Enerji Yapi-Yol Sen v Turkey (Application no 68959/01), para [24].
131
Demir and Baykara v Turkey, [144].

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III. The Social Phenomena and the Legal Institutions of

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V. Ideology and Normative Action

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