Embedding Employment Rights in Europe

Abstract

The most recent European employment law saga arising from Viking, Laval, and subsequent decisions has commonly been understood as perpetuating the infiltration of economic provisions into labor legislation. It has also been asserted, however, that these cases contain contradictory arguments, which offer a multifaceted narrative. The new construction of Article 151 TFEU (ex Article 136 EC) is of particular interest. Considered to be the cornerstone of European employment policy, this provision had generally been regarded as programmatic. During the past few years, however, it has progressively metamorphosed into a substantive rule and now plays a latent, but crucial, role in the court's reasoning. In combination with the new social clause introduced by the Lisbon Treaty, these elements provide normative arguments that can create an opening in the material constitution of the EU. This article contends, for the most part, that they provide tools that may be applied towards embedding employment rights in Europe.