A ‘legal revolution’ in the European field of posting? - Narratives of uncertainty, politics and extraordinary events
Author: Arnholtz, Jens , jh@faos.dl
Department: Department of Sociology
University: University of Copenhagen, Denmark
Supervisor: Carsten Strøby Jensen
Year of completion: 2014
Language of dissertation: English
Keywords:
Field theory
, EU law
, Laval
, Posting
Areas of Research:
Political Sociology
, Law
Abstract
The dissertation studies the construction of the European Court of Justice´s Laval ruling as a social, political and legal phenomenon. The Laval ruling has come to symbolise of how the European Union is challenging workers’ rights, and as such it has been intensely debated in legal, political and scholarly circles. The dissertation draws on the sociology of Bourdieu to reconstruct the symbolic struggles that caused this particular ruling to be regarded as
a genuine ‘legal revolution’. Tracing the process meticulously, it is suggested that the huge symbolic impact of the ruling was not just caused by the content of the ruling or its material consequences; rather, the political context, the build-up of the case and the political aftermath have played decisive roles in making this ruling stand out as a symbol of how the European Court of Justice encouraged social dumping and downgrading workers’ rights.
The dissertation traces the origin of the posting phenomenon within the EU and outlines the tensions inherent within it. While the free movement of workers has contested the member states’ monopoly on the legitimate forms of labour mobility within the EU, member states still retained the right to regulate the wages and working conditions of foreign workers by applying the same rules as for domestic workers. However, this principle of ‘equal treatment’ between foreign and domestic workers was not applied to posted workers, understood as workers employed in one country but sent abroad by their employer to work in another country. These workers were gradually separated into a category of their own, governed by principles other than that of ‘equal treatment’.
After the 2004 and 2007 EU-enlargements, posting has become a highly controversial issue. The enlargement markedly increased socioeconomic differences within the EU and created great incentives to deviate from the principle of ‘equal treatment’. It is in this context that the Laval ruling – and three other rulings from the ECJ – problematised the legitimacy of actions by trade unions and member states aimed at securing equal treatment for posted workers. The dissertation shows that while these material issues are clearly important, the uproar caused by the Laval rulings can only be understood if we study the symbolic struggles surrounding the case. The adoption of the Services Directive in the years leading up to the ruling formed a political context,that allowed the Laval ruling to be portrayed as going against the expressed will of the legislators. Additionally, the build-up of the cases entailed a number of controversial events, which amplified the issues of principle at stake in the case while understating the particularities of the case. Finally, the aftermath of the decision involved a number of spectacular events linking this particular ruling to EU-referendums, Commission renewals and other extraordinary events. All of these elements, it is argued, have contributed to making Laval such a symbolic stake in the struggle over the future of European integration. As such, the dissertation raises questions about how and why importance is ascribed to particular court ruling.
