Introduction

Writing in 2002, Fritz Scharpf warned: ‘the only thing that stands between the Scandinavian welfare state and the market is not a vote in the Council of Ministers or in the European Parliament, but merely the initiation of . . . legal action by potential private competitors before a national court that is then referred to the European Court of Justice for a preliminary opinion. In other words, it may happen one day’. The day appeared to come with the referral of two cases to the Court of Justice of the European Union (ECJ) in 2005: Laval and Viking. At issue in each case was whether industrial actions by unions to force firms to abide by nationally negotiated collective agreements constituted an infringement of free movement of services. Coming in the wake of contentious battles over the Services Directive and in ongoing political negotiations leading up to Lisbon, the cases attracted a great deal of attention as to how the Court would reconcile these competing economic and social demands. Moreover, given that the cases involved employers based in old Member States (Sweden and Finland) seeking to employ workers from new Member States (Latvia and Estonia), the cases also exacerbated ongoing concerns that eastward enlargement would spur a race-to-the-bottom in wages and social protections. With the ECJ ultimately ruling in favour of the employers the cases appeared to vindicate concerns raised by Scharpf and others that direct interventions by the courts pose the most significant threat to existing national socio-legal frameworks.