Viking's 'Semantic Gaps': Law and the Political Economy of Convergence in the EU

Peter L. Lindseth 

University of Connecticut School of Law
May 6, 2015

Forthcoming in Bill Davies and Fernanda Nicola, eds., EU Law Stories: Critical and Contextual Histories of European Jurisprudence (Cambridge University Press) 
Abstract:      

This chapter is part of a forthcoming edited volume exploring alternative approaches and readings of decisions of the European Court of Justice (ECJ) within their political, economic and legal contexts. This contribution focuses on the Viking judgment of December 2007, which, together with the Laval decision of the same month, is famous for subjecting the right to strike under national law to certain potential limitations deriving from European law. In the case of Viking specifically, those limitations flowed from the need to balance the right to strike against the freedom of establishment under ex Article 43 EC (now Article 49 TFEU). The specific holding in the case, however, as well as the ensuing controversy in the EU legal literature, are not really our concern here, or at least not directly. Rather, the focus of this chapter is on what the judgment does not say — on its 'semantic gaps', so to speak — most importantly between the ECJ's emphasis on balancing 'rights' in a constitutional/legal sense versus the European Commission's more technocratic/political role as manager of the Cohesion Policy — the EU's internal development policy for economically disadvantaged regions and member states. By focusing on these differing institutional and policy perspectives, this chapter seeks to refocus our attention on the broader challenge of legal, political, and economic 'convergence' that lies at the heart of the integration process, particularly after the EU’s enlargement to the east in 2004. The attempt at a combined perspective here also seeks to understand the tensions flowing from enlargement in the context of the political economy of market integration, with an eye to the historical experience in the North Atlantic world stretching back to the nineteenth century. The chapter concludes by reflecting on the relationship of the Viking controversy to a theory of institutional change along three dimensions — functional, political, and cultural — as well as on what this episode suggests for the continued tension between the national and the supranational (that is, between 'democracy' and 'demoi-cracy') in the ongoing crisis of European integration.

Number of Pages in PDF File: 13

Keywords: European Union, European Court of Justice, Viking, Laval, right to strike, freedom of establishment, cohesion policy, convergence, market integration, political economy, economic history, institutional change, demoi-cracy

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2603072