Economic and social rights in conflict: Political and judicial approaches to their reconciliation

In two recent cases, Viking and Laval, the Court of Justice was asked to consider apparent conflicts between free movement rights fundamental to market integration and the exercise of a right to strike otherwise lawful under national law. It fell to the Court to determine how the economic and social dimensions of the European project should be reconciled. This article examines how a key political decision came to be left to the Court, and the potential consequences of its findings. It is argued that the Court's traditional approach in free movement cases may be unsuited to the resolution of conflicts between the economic and the social. In particular, the extension of the direct effect of Treaty provisions relating to free movement so as to catch the actions of trade unions is problematic, especially in the light of the tests for justification and proportionality employed by the Court.