The legal mobilisation of EU market freedoms: strategic action or random noise?

Abstract

This article investigates litigation in the field of EU market liberalisation from the perspective of legal mobilisation research. It follows the assertion that litigation has seized on asymmetries in EU law to threaten cornerstones of national industrial relations regimes. The article investigates litigants and their legal counsel in 14 seminal cases. It identifies three distinct types of litigants: narrowly self-interested ‘one-shotters’, organised interests as ‘repeat players’, and ‘cause lawyers’. Key take-aways add to the literatures on both liberalisation and legal mobilisation. The prominence of purposeful, strategic action speaks against previous assertions of a purely self-sustaining logic of market liberalisation, and efforts by trade unions to reinforce national regulations protecting labour speak against the assumption that EU law is only employed by those seeking greater factor mobility. On the other hand, attention to litigants seeking market liberalisation calls into question the notion of law as a ‘weapon of the weak’ often pursued in legal mobilisation research.

Keywords:

• Legal mobilisation
• EU market freedoms
• liberalisation
• judicial politics
• industrial relations

Acknowledgements

This work is indebted to repeated discussions in the ‘Verbund Europäische Wirtschafts- und Sozialintegration’, in particular to comments by Susanne Schmidt and Martin Höpner, as well as to the participants of the workshop ‘European Legal Mobilization: Unearthing the Role of Litigants and Lawyers’, in particular to comments by Daniel Kelemen. I am also grateful to the three reviewers for their constructive feedback.

Disclosure statement

The author reports no conflict of interest.

Notes

1 Art. 153(5) TFEU specifically excludes EU legislative competences to regulate pay, the right of association, the right to strike or the right to impose lock-outs.

2 This is indicated at para. 24, xvii in the judgement of the UK Court of Appeal, [2005] EWCA Civ 1299.

Additional information

Funding

Research for this article benefitted from funding by the Hans Böckler Foundation, grant 2021-356-4, for the project ‘Soziale Dimension des Europäischen Unionsrechts’.

Notes on contributors

Andreas Hofmann

Andreas Hofmann is Assistant Professor in European Union Studies at Leiden University. His primary research interest is the role of courts in political processes and judicial procedures as a mode of solving political conflicts. [[email protected]]