The constitutional allocation of powers and general principles of EU law

Common Market Law Review

Volumn 47, Issue 6, 2010, Pages 1629-1669

  Lenaerts, Koen ^a   Gutierrez Fons, Jose A ^a  

^a UNIVERSITY OF LEUVEN   (Belgium)

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EID: 78650260938     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (188)

1. nd ed. (Kluwer, 2000).
2. nd ed. (OUP, 2006).
3. Groussot, General Principles of Community Law (European Law Publishing, 2006).
4. Bernitz, Nergelius, and Cardner (Eds.), General Principles of EC Law in a Process of Development, European Monograph 62 (Kluwer, 2008).
5. These last two functions are grounded in the constitutional status of general principles in the hierarchy of norms.
6. See Case C-101/08, Audiolux, judgment of 15 Oct. 2009, nyr, para 63, and Case C-174/08, NCC Construction Danmark, judgment of 29 Oct. 2009, nyr, para 42.
7. Lenaerts, "Federalism and the rule of law: Perspectives from the European Court of Justice", (2010) Fordham International Law Journal, 1338.
8. Bendix Autolite Corp. v. Midwesco Enters., 486 U.S. 888, 897 (1988) (Scalia J. concurring).
9. Lenaerts and Gutman, "'Federal common law' in the European Union: A comparative perspective from the United States", 54 AJCL (2006), 7-16.
10. Case 26/62, Van Gend & Loos, [1963] ECR 1.
11. Pescatore, "La carence du legislateur communautaire et le devoir du juge", in Rechtsvergleichung, Europarecht und Staatenintegration: Gedächtnisschrift für Léontin-Jean Contantinesco (Heymanns Verlag, 1983), pp. 559-580.
12. Koopmans, "The birth of European Law at the crossroads of legal traditions", 39 AJCL (1991), 495.
13. Case 11/70, Internationale Handelsgesellschaft, [1970] ECR 1125.
14. See Tridimas, "Primacy, fundamental rights and the search for legitimacy", in Maduro and Azoulai (Eds.), The Past and Future of EU Law (Hart Publishing, 2010), p. 98 (opining that "[r]ecognition of fundamental rights as binding norms of Community law was the main instrument for the legitimization of the EC legal order, the acceptance of supremacy and the embracement of the preliminary procedure by national courts").
15. Lenaerts, "Interlocking legal orders in the European Union and comparative law", 52 ICLQ (2003), 876-880.
16. See also Case 222/84, Johnston v. Chief Constable of the Royal Ulster Constabulary, [1986] ECR 1651.
17. Joined Cases C-6 & 9/90, Francovich and Others, [1991] ECR I-5357, para 35.
18. Joined Cases C-46 & 48/93, Brasserie du Pêcheur and Factortame, [1996] ECR I-1029, para 80.
19. Case C-224/01, Köbler, [2003] ECR I-10239, para 48.
20. Case C-173/03, Traghetti del Mediterraneo, [2006] ECR I-5177, para 31.
21. Case C-249/96, Grant, [1998] ECR I-621.
22. Such action was taken in the meantime, with the adoption of Council Directive 2000/78/EC of 27 Nov. 2000 establishing a general framework for equal treatment in employment and occupation, O.J. 2000, L 303/16, and Art. 21 of the Charter of Fundamental Rights of the European Union, O.J. 2010, C 83/02 (see Art. 6 TEU).
23. Guided by these legislative choices, the ECJ extended EU law protection to same-sex partnerships.
24. See Case C-267/06, Maruko, [2008] ECR I-1757 and Opinion of A.G. Jaaskinen in Case C-147/08, Römer, (pending).
25. See Section 4.
26. See Opinion of A.G. Kokott in Case C-550/07 P, Akzo Nobel Chemicals and Akcros Chemicals v. Commission, judgment of 14 Sept. 2010, nyr, paras. 93-98 (distinguishing the situation in that case from that in Case C-144/04, Mangold, [2005] ECR I-9981).
27. Lasok and Millett, Judicial Control in the EU (Richmond, 2004), pp. 399-400.
28. Joined Cases C-402 & 432/07, Sturgeon, judgment of 19 Nov. 2009, nyr.
29. Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 Feb. 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, O.J. 2004, L 46/1.
30. The approach followed by A.G. Sharpston is somewhat different. She concurred with the ECJ in acknowledging that if compensation to passengers whose flight is delayed were excluded, then it would be impossible to reconcile Regulation No. 261/2004 with the principle of equal treatment.
31. Yet, in contrast to the ECJ, the A.G. did not provide a particular time-limit after which passengers whose flight is delayed enjoy a right to compensation. In her view, "the actual selection of a magic figure is a legislative prerogative".
32. Delivered on 2 July 2009, nyr, paras. 93-94.
33. However, the ECJ deployed another argument in order to counter this "separation of powers" objection. It invoked Recital 15 in the preamble of Regulation No. 261/2004, whereby "the legislature ... linked the notion of 'long delay' to the right to compensation".
34. Thus, the ECJ did not encroach upon the prerogatives of the EU legislature but simply limited itself to clarifying a legislative choice already contained in Regulation No. 261/2004, namely the distinction between "delay" (inferior to three hours) and "long delay" (equal to or in excess of three hours). Whilst the latter gives rise to compensation, the former does not.
35. (extraordinary circumstances are defined as those which "are beyond the air carrier's actual control").
36. See Case 14/83, Von Colson, [1984] ECR 1891.
37. Case C-106/89, Marleasing, [1990] ECR I-4135 and more recently, Joined Cases C-397 to 403/01, Pfeiffer, [2004] ECR I-8835.
38. Case C-129/96, Inter-Environnement Wallonie, [1997] ECR I-7411, para 45.
39. Case C-212/04, Adeneler, [2006] ECR I-6057, paras. 121-123.
40. Klamert, "Judicial implementation of directives and anticipatory indirect effect: Connecting the dots", 43 CML Rev. (2006), 1251.
41. See e.g. Case C-299/95, Kremzow, [1997] ECR I-2629, para 15; Case C-159/90, Society for the Protection of Unborn Children Ireland v. Grogan and Others, [1991] ECR I-4685, para 31; Case C-309/96, Annibaldi, [1997] ECR I-7493, para 13; Case C-442/00, Caballero, [2002] ECR I-11915, paras. 30 and 32; and Case C-13/05, Chacón Navas, [2006] ECR I-6467, para 56.
42. See Adeneler, cited supra note 38, para 110; Case C-268/06, Impact, [2008] ECR I-2483, para 100; and Case C-378/07, Angelidaki and Others, [2009] ECR I-3071, para 199.
43. Pfeiffer, cited supra note 37, paras. 115-116; Case C-12/08, Mono Car Styling, judgment of 16 July 2009, nyr, paras. 62-63.
44. See e.g. Case 80/86, Kolpinghuis Nijmegen, [1987] ECR 3969, para 13; Case C-168/95, Arcaro, [1996] ECR I-4705, para 42; Case C-60/02, Criminal proceedings against X, [2004] ECR I-651, para 61 et seq.; Joined Cases C-387, 391 & 403/02, Berlusconi and Others, [2005] ECR I-3565, para 74.
45. See Opinion of A.G. Sharpston in Case C-427/06, Bartsch, [2008] ECR I-7245, para 79.
46. Whilst it is true that in Case C-2/92, Bostock, [1994] ECR I-955 and Case C-60/92, Otto, [1993] ECR I-5683, the ECJ denied the application of a general principle in a private dispute, these two judgments do not rule out the possibility that general principles may ever produce horizontal direct effect.
47. In Bostock, the fact that the applicant sought to apply a general principle retroactively in order to modify a lease contract was decisive. In Otto, the very raison d'être of the principle invoked was confined to a public law context.
48. For instance, if a directive implements Art. 157 TFEU and a national legislature fails to implement such a directive, then an employee having received unequal pay because of his or her gender may rely on Art. 157 TFEU against his or her employer without the need to bring in the general principle of non-discrimination on grounds of sex.
49. Case 5/88, Wachauf, [1989] ECR 2609.
50. Term borrowed from Weiler and Lockhart, "'Taking rights seriously' seriously: The European Court and its fundamental rights jurisprudence - Part I", 32 CML Rev. (1995), 73.
51. Case C-260/89, ERT, [1991] ECR I-2925.
52. This would be the case e.g. where there are potential impediments to interstate trade (Case C-71/02, Karner, [2004] ECR I-3025); or where Member States act as trustees of the EU in an area of exclusive EU competences (Joined Cases C-286/94, C-340 & 401/95 and C-47/96, Molenheide and Others, [1997] ECR I-7281); or where penalties are adopted by the national legislature with a view to securing compliance with EU law, but the latter does not expressly require so (Case 77/81, Zuckerfabrik Franken, [1982] ECR 681).
53. Prechal, "CompeteRnce creep and general principles of law", 3 Rev. Eur. Adm. L. (2010), 8.
54. Dougan, "When worlds collide! Competing visions of the relationship between direct effect and supremacy", 44 CML Rev. (2007), 931.
55. In the same vein, see Dashwood, "From Van Duyn to Mangold via Marshall: Reducing direct effect to absurdity?", 9 CYELS (2006-2007), 81 (opining that this debate discloses a tension between two irreconcilable objectives: the "effectiveness objective" and the "specific identity [of Directives] objective").
56. In support of this model, see e.g. Tridimas, "Black, white and shades of grey: Horizontality of directives revisited", 21 YEL (2002), 327.
57. Lenaerts and Corthaut, "Of birds and hedges: The role of primacy in invoking norms of EU law", 31 EL Rev. (2006), 287.
58. Craig, "The legal effect of directives: Policy, rules and exceptions", 34 EL Rev. (2009), 349.
59. See also Opinion of A.G. Leger in Case C-287/98, Linster, [2000] ECR I-6917.
60. See e.g. Case C-91/92, Faccini Dori, [1994] ECR I-3325, para 5 (there, the non-implemented directive granted consumers a right of cancellation for a period of at least seven days in relation to contracts negotiated away from business premises.
61. Hence, Ms. Faccini Dori did not seek to set aside Italian law, but to enforce new rights that Community law granted her).
62. (qualifying this distinction as a "false dichotomy", given that at the end of the day, the dispute would still be resolved "on the basis of a rule different from that prescribed by the national legislature").
63. rd ed. (Sweet & Maxwell, forthcoming), Chapter 21.
64. Ritleng, "De l'utilite du principe de primaute du droit de l'Union", (2009) RTDE, 677.
65. See Case 152/84, Marshall, [1986] ECR 723, para 48.
66. Case C-555/07, Kücükdeveci, judgment of 19 Jan. 2010, nyr.
67. Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, O.J. 1999, L 175/43.
68. (If so, he submits that "Mangold would be seen to have blown a very large hole in what remains of the no horizontal direct effect rule for directives").
69. See e.g. Case C-201/02, Wells, [2004] ECR I-723.
70. E.g., Case C-194/94, CIA Security International, [1996] ECR I-2201.
71. Case C-129/94, Ruiz Bernáldez, [1996] ECR I-1829; Case C-443/98, Unilever, [2000] ECR I-7535.
72. Ross, "Effectiveness in the European legal order(s): Beyond supremacy to constitutional proportionality?", 31 EL Rev. (2006), 476.
73. Opinion of A.G. Ruiz-Jarabo Colomer of 6 May 2004.
74. Opinion of A.G. Ruiz-Jarabo Colomer in Joined Cases C-55 & 56/07, Michaeler & Others, [2008] ECR I-3135, paras. 20-22.
75. Opinion of A.G. Kokott in Case C-321/05, Kofoed, [2007] ECR I-5795, para 67.
76. Opinion of A.G. Mazak in C-411/05, Palacios de la Villa, [2007] ECR I-8531, paras. 133-138.
77. (Art. 19 TFEU states that the Council "may take appropriate action to combat discrimination".
78. It follows that it is for the Council to decide whether such action requires the adoption of a regulation or a directive).
79. The same argument was deployed by the ECJ to reject the horizontal direct effect of directives.
80. There it held that "[t]he effect of extending that case law to the sphere of relations between individuals would be to recognize a power in the [Union] to enact obligations for individuals with immediate effect, whereas it has competence to do so only where it is empowered to adopt regulations".
81. Case 43/75, Defrenne, [1976] ECR 455.
82. Case C-218/98, Angonese, [2000] ECR I-4139.
83. A legal principle is "mandatory in nature" (in French, "caractere imperatif") when it is not subject to private autonomy.
84. O.J. 1975, L 45/19.
85. See also Case 96/80, Jenkins, [1981] ECR 911, para 22 (holding that Directive 75/117 could not alter the content or scope of that general principle); Case C-17/05, Cadman, [2006] ECR I-9583, para 29.
86. O.J. 1968, Spec. Ed. Series I-475.
87. Craig and De Burca, EU Law: text, cases and materials, 4th ed. (OUP, 2007), pp. 276-277.
88. (discussed below) in which the ECJ drew the same distinction.
89. Art. 19(1) TEU.
90. See Joined Cases C-60 & 61/84, Cinéthèque v. Fédération Nationale des Cinémas Français, [1985] ECR 2605, para 25; Case C-12/86, Demirel v. Stadt Schwaebisch Gmund, [1987] ECR 3719, para 28.
91. Raz, "Legal principles and the limits of law", 81 Yale L. Jounal (1972), 854.
92. For a classic study on balancing in the context of constitutional rights, see generally, Alexy, A Theory of Constitutional Rights (OUP, 2002).
93. See also Harbo, "The function of the proportionality principle in EU law", 16 ELJ (2010), 166.
94. Against a relative interpretation of individual rights, see Habermas, Between Facts and Norms (MIT Press, 1998).
95. Sullivan, "Foreword: The justices of rules and standards", 106 Harv. L. Rev. (1992), 60-61.
96. See e.g. Scalia, "The rule of law as a law of rules", 56 Univ. Chicago. L. Rev. (1989), 1179-1180.
97. Von Bogdandy, "Founding principles of EU law: A theoretical and doctrinal sketch", 16 ELJ (2010), 103 (holding that "a judicial decision which employs the balancing of principles is more intelligible for most citizens than a 'legal-technical' reasoning phrased in hermetic language which obscures the valuations of the court.
98. To devise legal controversies as conflicts of principles allows for a politicization which should be welcomed in light of the principle of democracy, since it promotes the public discourse on judicial decisions").
99. Stone Sweet and Mathews, "Proportionality and global constitutionalism", 47 CJTL (Col. J. Transn. L.) (2008), 72.
100. Tsakyrakis, "Proportionality: An assault on human rights?", 7 I-CON (Int. J. Const. L.) (2009), 468.
101. Bengoetxea, MacCormick, and Moral Soriano, "Integration and integrity in the legal reasoning of the European Court of Justice", in De Burca and Weiler (Eds.), The European Court of Justice (OUP, 2001), p. 44.
102. (value pluralism implies that "principles cannot be reduced to a single value or coherent set of values, nor should conflicts between reasons be interpreted as an imperfection, but rather as the normal state of human beings").
103. (opining that "[t]he solution to a conflict of principles cannot be determined either scientifically or legally, it can only be structured").
104. (who argues that "[t]he reason why courts establish principles of law in general and the proportionality principle in particular is... to assure some kind of legitimacy for its decisions.
105. [To this effect,] the binding of the court's reasoning to some (more or less) explicitly stated procedures must be perceived as imperative in order to secure legitimacy for the court's decision in a liberal rights-based constitutional regime").
106. (arguing that, when reviewing national measures, the principle of proportionality operates as "an instrument of market integration").
107. It is worth noting that the principle of proportionality and non-discrimination act here in complementary fashion, in so far as the latter is subsumed in the former.
108. Poiares Maduro, "Interpreting European Law: Judicial adjudication in a context of constitutional pluralism", 2 EJLS (Eur. J. Legal Studies) (2008), 1, available at:.
109. Cf. Bengoetxea, MacCormick, and Moral Soriano.
110. Koopmans, "General principles of law in European and national systems of law: A comparative view", in Bernitz and Nergelius (2000).
111. See Opinions of A.G. Lagrange in Case 14/61, Hoogovens v. High Authority, [1962] ECR 253.
112. A.G. Roemer in Case 18/70, Duraffour v. Council, [1971] ECR 515.
113. Herdegen, "General principles of EU law-The methodological challenge", in Bernitz, Nergelius, and Cardner (2008).
114. Opinion of A.G. Mazak in Palacios de la Villa.
115. Only the Portuguese and Finnish constitutions recognize this principle.
116. See also Jans, "The effect in national legal systems of the prohibition of discrimination on grounds of age as a general principle of community law", 34 LIEI (2007), 65.
117. Opinion A.G. Geelhoed in Case C-13/05, Chacón Navas, [2006] ECR I-6467, paras. 53-54.
118. Case C-249/96, Grant, [1998] ECR I-621.
119. In its decision on the Treaty of Lisbon of 30 June 2009, the German Constitutional Court claimed jurisdiction to decide whether EU law is ultra vires or whether it runs counter to the core content of the constitutional identity of the German Basic Law.
120. See German Constitutional Court, BVerfG, 2 BvE 2/08 vom 30.6.2009, Absatz-Nr. (1-421), 241. Available in English at: .
121. See German Constitutional Court, BVerfGE 89, 155.
122. For the English version, see CMLR [1994] 57 et seq.
123. But see German Constitutional Court, decision of 6 July 2010 in Honeywell, BVerfG, Constitutional Complaint, 2 BvR 2661/06.
124. Here, the German Constitutional Court was called upon to determine whether, by holding that the general principle of non-discrimination on grounds of age may produce horizontal direct effect, the ruling of the ECJ in Mangold was ultra vires.
125. The German Constitutional Court replied in the negative. It reasoned that, since Mangold involved a policy field in which the Union enjoys legislative competence by virtue of Art. 19 TFEU (ex 13 EC), the horizontal application of the general principle of non-discrimination on grounds of age as given expression in Directive 2000/78 was a question for the ECJ alone to address.
126. This means that the German Constitutional Court will only undertake an ultra vires review where it considers that the ECJ has interpreted an EU norm in such a way that it entails the conferral of a new legislative competence to the Union.
127. See annotation by Payandeh, 48 CML Rev. (forthcoming).
128. Case C-540/03, Parliament v. Council, [2006] ECR I-5769.
129. (holding that the change in the ECJ's attitude towards the Charter was, in part, triggered by the severe criticism against Mangold).
130. See e.g. Case C-432/05, Unibet, [2007] ECR I-2271, para 37; Case C-303/05, Advocaten voor de Wereld, [2007] ECR I-3633, para 46; Joined Cases C-402 & 415/05 P, Kadi, [2008] ECR I-6351, para 335; Mono Car Styling, cited supra note 43, para 47.
131. Eeckhout, "The EU Charter of Fundamental Rights and the federal question", 39 CML Rev. (2002), 951-952.
132. Rossi, "How fundamental are fundamental rights? Primacy and fundamental rights after Lisbon", 27 YEL (2008), 77-82.
133. In its fifth para, the Preamble of the Charter states: "This Charter reaffirms, with due regard for the powers and tasks of the Union and for the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Union and by the Council of Europe and the case law of the Court of Justice of the European Union and of the European Court of Human Rights.".
134. (opining that "it remains to be seen whether the reference to the Charter ... ensures methodological added value with respect to the scope of fundamental rights and the justification of interference by EU legislation or Member Sates' action").
135. After the entry into force of the Treaty of Lisbon, see Case C-403/09 PPU, Detiček, judgment of 23 Dec. 2009, nyr, para 58 (where the Charter was relied upon as an aid to interpretation of Regulation Brussels II bis, O.J. 2003, L 338/1).
136. Art. 51(2) of the Charter reads as follows: "[t]he Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties".
137. See Explanations relating to the Charter of Fundamental Rights, O.J. 2007, C 303/17.
138. (opining that the Praesidium commentary on Art. 51 of the Charter gave rise to confusion as it "sidelin[ed] the difference between national action for the implementation of [Union] law and national action falling within the scope of [Union] law").
139. De Burca, "The drafting of the European Union Charter of Fundamental Rights", 26 EL Rev. (2001), 137.
140. Knook, "The Court, the Charter, and the vertical division of powers in the European Union", 42 CML Rev. (2005), 373.
141. Lord Goldsmith, "A charter of rights, freedoms and principles", 38 CML Rev. (2001), 1205.
142. Jacobs, "Human rights in the European Union: The role of the Court of Justice", 26 EL Rev. (2001), 331.
143. Case C-368/95, Familiapress, [1997] ECR I-3689.
144. Case C-159/90, The Society for the Protection of Unborn Children Ireland Ltd v. Stephen Grogan and others, [2001] ECR I-4685.
145. E.g., regardless of whether Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom is a real "opt-out" or a clarification of the existing case law, one could argue that general principles of EU law will still apply to these Member States.
146. See Baquero Cruz, "What's left of the Charter? Reflections on law and political mythology", 15 MJ (2008), 72 (opining that "[u]sing general principles, the [ECJ] can diminish or even neutralize the negative effects of the Protocol").
147. Dougan, "The Treaty of Lisbon 2007: Winning minds, not hearts", 45 CML Rev. (2008), 668-667 (while acknowledging the option of general principles, the author prefers to interpret the Protocol restrictively).
148. For a critical overview of Protocol (No 30), see generally Barnard, "The 'opt-out' for the UK and Poland from the Charter of Fundamental Rights: Triumph of rhetoric over reality?", in Griller and Ziller (Eds.), The Treaty of Lisbon: EU Constitutionalism without a Constitutional Treaty? (Springer, 2008), pp. 257, 264.
149. Weiler, "Editorial: Does the European Union truly need a Charter of Rights?", 6 ELJ (2000), 95.
150. See also case note by Bengoetxea, 47 CML Rev, 1173-1186.
151. (Reaching the same conclusion, A.G. Trstenjak also examined Treaty provisions and international law.
152. O.J. 1977, L 145/1.
153. As all legal theories, constitutional pluralism is subject to different interpretations. In essence, this theory oscillates between two extremes. On the one hand, an excessive emphasis on coherence and structure would actually "disguise" a hierarchical-monist approach.
154. On the other hand, a total absence of hierarchy would lead to the fragmentation of a system based on multilevel governance.
155. For an account on the different views of constitutional pluralism, see Avbelj and Komarek (Eds.), "Four visions of constitutional pluralism", 21 EUI Law Working Papers (2008), available at: .
156. Cartabia, "Europe and rights: Taking dialogue seriously", 5 EuConst (2009), 5.
157. Case C-36/02, Omega, [2004] ECR I-9609.
158. Weiler, "Fundamental rights and fundamental boundaries", in Weiler, The Constitution of Europe "Do the new clothes have an emperor" and other essays on European integration (CUP, 1999), 126.
159. See e.g. Joined Cases C-465/00, C-138 & 139/01, Österreichischer Rundfunk and Others, [2003] ECR I-4989.
160. Case C-101/01, Lindqvist, [2003] ECR I-12971.
161. Alternatively, one could also argue that national courts, in particular national constitutional courts, must have an important role in drawing the contours of this core nucleus.
162. The latter's hierarchical character would not prevent an ongoing constitutional dialogue between the ECJ and its national counterparts.
163. Hence, the ECHR would only comprise a part, albeit an essential one, of such nucleus.
164. Sweeney, "A 'margin of appreciation' in the internal market: Lessons from the European Court of Human Rights", 34 LIEI (2007), 27.
165. Case C-438/05, ITF and FSU v. Viking Line ABP and OÜ Viking Line Eest, [2007] ECR I-10779.
166. Case C-341/05, Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet, [2007] ECR I-11767.
167. It is worth noting that one of the main criticisms of these judgments lies in that the ECJ applied the fundamental freedoms to trade unions, despite the fact that trade unions, unlike public authorities, do not represent the general interest but that of their members.
168. In addition, it is also argued that, unlike non-governmental regulatory bodies to which the fundamental freedoms apply (Case 36/74, Walrave and Koch, [1974] ECR 1405; Case C-415/93, Bosman, [1995] ECR I-4921), trade unions do not enjoy exclusive control to regulate an area of the economy.
169. See e.g. Davies, "One step forward, two steps back? The Viking and Laval cases in the ECJ", 37 Industrial Law Journal (2008), 126, 136-137.
170. However, as Dashwood points out, where a Member State delegates the regulation of employment relations to both sides of the industry, "recourse to collective action by trade unions form[s] an integral part of the process of regulating the provision of services in that [Member State]".
171. Insofar as trade unions enjoy legal autonomy which allows them "to regulate working conditions in a Member State by way of collective agreements, underpinned by the threat or use of collective action", he posits that their ability to hinder free movement is analogous to that of non-governmental regulatory bodies.
172. See Dashwood, "Viking and Laval: Issues of horizontal direct effect", 10 CYELS (2007-2008), 525, 535 and 539.
173. O.J. 1997, L 18/1.
174. Besides, Sweden had not made use of Art. 3(10) which could grant further rights to posted workers. See para 84.
175. ("In press statements FSU justified its position by the need to protect Finnish jobs").
176. For an alternative explanation, see Azoulai, "The Court of Justice and the social market economy: The emergence of an ideal and the conditions for its realization", 45 CML Rev. (2008), 1350-1353 (arguing that the ECJ "refuses to consider the system of social relations as a 'constitutional order' enjoying the capacity of self-determination" and consequently, trade unions do not enjoy a broad margin of discretion.
177. The State remains the only reference to balance social and economic objectives in light of national constitutional traditions. In his view, this is a paradox, given that the ECJ applied ex Art. 49 EC to trade unions, while denying them a role in determining the public social order.
178. To this effect, see Laval, cited supra note 207, para 84, where the ECJ held that trade unions may not put forward grounds of public policy to argue that collective action complies with EU law).
179. See Rosas, "Finis Europae socialis?" in Chemins d'Europe, Mélanges en l'honneur de Jean-Paul Jacqué (Dalloz, 2010), 606-607.
180. For an overview of the submissions of the Eastern European Member States on the case, see Bercusson, "The trade union movement and the European Union: Judgment day", 13 ELJ (2007), 279.
181. Whilst it is true that in Viking, the ITF engaged its members in a coordinated and internationally agreed action to counter the problems associated with the flag of convenience and social dumping, the transnational character of such an action does not rule out that it might give rise to social protectionism.
182. In this regard, A.G. Poiares Maduro correctly observed that "[a] policy of coordinated collective action could easily be abused in a discriminatory manner if it operated on the basis of an obligation imposed on all national unions to support collective action by any of their fellow unions".
183. In his view, a compulsory coordinated industrial action would enhance the bargaining powers of some trade unions to the detriment of others, fragmenting the labour market and hindering free movement.
184. It is indeed worth recalling that a trade union - member of the ITF - which fails to comply with an ITF circular exposes itself to sanctions and even to the loss of membership.
185. See Opinion of A.G. Poiares Maduro.
186. Barnard, "Viking and Laval: An introduction", 10 CYELS (2007-2008), 492 (opining that "[i]nstead of lamenting their loss of autonomy, trade unions need to examine the judgments in these cases to see how they can use [Union] concepts to their own ends").
187. Case 294/83, Les Verts v. Parliament, [1986] ECR 1339, para 23.