2. The AG opinion and the judgment – the fear of another Laval moment

The Danish annulment action of 18 January 2023 (also supported by Sweden) had not come entirely as a surprise, as the Proposal for the Directive had already been criticised by Denmark and Sweden immediately upon its publication by the Commission on 28 October 2020.Footnote ¹² The criticism mostly focused on the Directive as a threat to national wage-setting autonomy and the EU’s lack of competence over ‘pay’ in accordance with the principle of conferral of Article 5(2) TEU, and the ‘wage-setting exception’ within Article 153(5) TFEU.

Although the final text of the AMWD, which does not seek to impose a specific minimum wage level on Member States, might at first sight look rather modest, at a time of growing economic uncertainty for working people, such an instrument can still be transformative. For instance, Erne has seen the transformative potential of the Directive in at least three of its core features.Footnote ¹³ First, the Directive establishes reference thresholds for what it refers to as adequate national statutory minimum wages, defined as 60 per cent of the national median wage and 50 per cent of the national average wage. These reference thresholds are set without determining specific nominal wage levels or interfering in existing wage-setting mechanisms as established within statutory or collective wage-setting systems typical for each Member State.Footnote ¹⁴ Second, the Directive calls on Member States to strengthen collective bargaining, setting an objective of achieving bargaining coverage of 80 per cent of workers.Footnote ¹⁵ Third, it addresses trade union rights specifically relevant for precarious sectors, such as the trade union ‘right to access’, requiring employers to grant unions access to their employees.Footnote ¹⁶ This can be a crucial collective right in highly deregulated sectors where unions would play a central role in setting and enforcing minimum wages.

By staying out of the specifics of wage-setting, the Directive sought to tread a fine line: initiating a meaningful EU intervention in the field of wages and strengthening workers’ rights, including the sensitive area of collective bargaining, while respecting Member States’ industrial relations models and wage-setting systems as products of locally specific labour struggles and historical circumstances. Notwithstanding such ‘non-interference’, the Danish annulment action was premised on a legal framing which attacked the Directive on two main counts. First, echoing the arguments raised against the Directive during the negotiation process, Denmark contended that the Directive was invalid, claiming it exceeded the limits of EU competence under Article 153(5) TFEU. The other argument was procedural and related to Article 153(2)(b) TFEU, claiming that, given the Directive’s legal basis in Article 153(1)(b) TFEU, it would have been necessary to adopt at least the articles on collective bargaining via the co-decision procedure, under which the Council acts unanimously.Footnote ¹⁷

The very fact that the Court was placed in a position to decide upon the future of one of the most significant recent legal initiatives concerning workers’ rights in the EU has led to an anxiety-inducing situation, especially for those who have followed the Court’s pronouncements in the labour and social domain during at least the past two decades, pronouncements which prioritise the ‘economic’ over the ‘social’. Drawing an analogy with the Court’s ‘Laval jurisprudence’ has, therefore, come naturally to many observers.Footnote ¹⁸ Historically, as many have argued, the Court’s jurisprudence on ‘social rights versus market freedoms’, together with the trajectory of the development of the European integration process, have been largely bound by the strictures of the EU’s ‘economic constitution’.Footnote ¹⁹ In this context, it is unsurprising that seasoned observers anticipated the outcome of the decision on the annulment action to be a total or partial withdrawal of the Directive. Hence, as Brian Bercussion framed the Viking and Laval judgments almost 20 years ago,Footnote ²⁰ the CJEU decision on the AMWD was nothing less than a ‘judgement day for the European labour movement’ and Social Europe at large.

While the annulment action itself came as little surprise given Denmark’s initial opposition to the Directive, the rather controversial Opinion by Advocate General Emiliou of 14 January 2025 reverberated beyond the usual circles of labour law scholars and trade union actors closely following the evolution of the AMWD.Footnote ²¹ The Opinion advised the Court to go as far as to declare the Directive void and incompatible with EU law, both on the basis of the exclusion of wage-setting from Union competences under Article 153(5) TFEU, and on grounds related to procedural requirements for a co-decision procedure under Article 153(2)(b) TFEU. The Opinion markedly intensified the sense of anxiety triggered by the Danish annulment action that brought the CJEU into play and represented a particularly fraught moment in the politics of judicial scrutiny of the boundaries of Social Europe.

As Joerges and Rödl observed in the aftermath of the Laval Quartet judgments, the outcomes in those cases (especially Laval and Viking) emerged from an interplay of ‘formalised law and informal politics’: the Court resolved a political conflict between social objectives and economic freedoms through a formalised legal interpretation shaped by the imperatives of the Union’s Economic Constitution.Footnote ²² In the present instance, however, rather than concealing the EU’s social deficit behind formalised legal reasoning guided by market rationality,Footnote ²³ according to Kilpatrick and Steiert, the Opinion instead was shaped by a form of ‘historical unawareness’, overlooking case law and past directives that might have supported a different understanding of the AMWD’s place within the Union’s constitutional framework, including the principle of conferral and Article 153(5) TFEU.Footnote ²⁴ Kilpatrick and Steiert have pointed to a number of existing directives with general implications for wages and income, which have not given rise to objections based on the EU’s lack of competence in the domain of wages.Footnote ²⁵ The Opinion therefore becomes a search for legal justifications for a constitutional imaginary in which a general regulation of ‘adequate minimum wages’ cannot exist within the EU legal order.

Against this backdrop, all eyes were on the Court, anticipating whether it would follow the Advocate General’s Opinion or affirm the validity of the Directive as its drafters and supporters envisioned, thereby enabling a vision of Social Europe in which a shared legal understanding of ‘adequate minimum wages’ forms an integral part of EU’s social dimension. To be clear, scepticism regarding EU interventions in areas such as minimum wage regulation and collective labour rights is often justified. Consider the debates surrounding the Monti II Regulation in the aftermath of the Laval Quartet,Footnote ²⁶ where opposition came primarily from organised labour, which perceived the initiative as a reductionist intrusion into the governance of collective action across diverse Member States.Footnote ²⁷

It is therefore fair to say that careful observers took seriously the original concerns raised by the Nordic countries, scrutinising whether such a Directive could have a ‘disembedding’ effect on national labour relations and wage-setting systems.Footnote ²⁸ Yet, a closer look at the actors involved in the processes that have made the Directive the object of a CJEU case reveals a different dynamic: for example, while trade unions in Denmark and Sweden have had their concerns, it is also important to note that Swedish and Danish employer organisations actively lobbied their governments to block the Directive.Footnote ²⁹ This contrasts with the Monti II case, where opposition arose mainly from trade union movements expressing concern that the prospect of a unified regulation of cross-border collective action might limit the right to strike as regulated in the Member States.

The judgment, however, came as a relief: contrary to the Advocate General’s advice, the Court upheld the Directive almost in its entirety, apart from Article 5(2), which was quite significant as it contained detailed criteria for assessing the adequacy of statutory minimum wages.Footnote ³⁰

3. Social Europe as a double movement

The significance of the CJEU’s decision upholding the AMWD, and its true value, can only be appreciated within the broader trajectory of developments associated with what is referred to as ‘Social Europe’, spanning several decades. This process can, in part, be understood as a Polanyian ‘double movement’: legislative and case law pushes for market expansion have sometimes been met with more or less forceful demands for intervention in social protection, and conversely, efforts aimed at socially embedding regulation have often faced vigorous criticism and calls for market liberalisation.Footnote ³¹

Looking back at these debates, it has been almost 20 years since Caporaso and Tarrow (in line with ‘Social Europe for Workers’)Footnote ³² described the CJEU as a ‘Polanyian Court’, tracing a continuity in case law that has socially embedded processes of economic integration at EU level, particularly in the area of free movement of persons, where the Court has progressively interpreted EU law to extend social protection for individuals and their dependents, mostly moving under Article 45 TFEU.Footnote ³³ Yet the promise of a Polanyian Court was short-lived, as it was quickly undermined by the CJEU’s Laval jurisprudence that came immediately after the publication of that article.Footnote ³⁴ In Polanyi’s sense, this latter body of case law has come as a countermove to earlier rulings and regulation socially embedding individual freedom of movement, reminding us that these processes of social embeddedness through individual social rights do not readily translate to collective rights, particularly the rights of organised labour to set, regulate and defend social objectives.Footnote ³⁵ The disembedding effect of the Laval judgments meant a weaker capacity of trade unions to protect workers’ interests in the context of freedom of movement of servicesFootnote ³⁶ and establishment, respectively.Footnote ³⁷ As described earlier, this case law coincided with austerity politics and jurisprudence disembedding the economic constitution from different layers of social protection,Footnote ³⁸ positioning the CJEU, in this period, as the counterpoint to a Polanyian Court.

In both the Laval judgments and in the context of austerity governance, the position of wages and the sources of legitimate wage-setting have played a crucial role. Therefore, a truly substantive legal response at EU level as a countermove to these developments would need to address wages and collective actors, along with their capacity to set wages and defend them through collective action. The continuing dynamics of the double movement have prompted a range of countermoves following the Laval judgments. To make this double movement tangible, we can consider four countermovement initiatives: the Revised Posted Workers Directive, the European Pillar of Social Rights, the regulation of seasonal work, and the Platform Workers Directive; followed by one development moving in the opposite direction: recent supply-chain labour regulation.

One of the most notable countermovements in Laval’s aftermath has engaged with wages, especially in the domain of posting of workers. In particular, the Revision of the Posted Workers Directive from 2018 has highlighted the difficulty of addressing wages through EU law in the current political economy marked by significant material inequality within and between Member States,Footnote ³⁹ resulting in one of the few ‘yellow card’ procedures,Footnote ⁴⁰ which divided European parliaments along a core-periphery axis.Footnote ⁴¹ ‘Equal pay for equal work’ was at the core of the Revision initiative, which came alongside another countermove welcomed with mixed feelings regarding its real effectiveness – the European Pillar of Social Rights.Footnote ⁴² However, in its Principle 6, the Pillar declares adequate wages as a source of a decent standard of living, thereby creating a pathway for the AMWD.

To name another example, a countermove, in theory at least, has emerged in the context of regulation of seasonal agricultural work. After the exposure of exploitation of seasonal workers during the first Covid-19 lockdowns, rooted in labour market structures, a Social Conditionality arrangement was adopted at EU level,Footnote ⁴³ linking eligibility for Common Agricultural Policy (CAP) subsidy schemes to the social and working conditions of (seasonal) workers.Footnote ⁴⁴ The Platform Workers Directive provides another example, resulting in worker protections – this time for platform workers, a diverse but significant category of precarious workers.Footnote ⁴⁵ Finally, developments have also gone in the opposite direction, notably recent initiatives in the context of due diligence regulation, particularly with the latest ‘Omnibus package’,Footnote ⁴⁶ which weakens parts of the Corporate Sustainability Due Diligence Directive (CSDDD) that were intended to strengthen the rights of workers in supply chains.Footnote ⁴⁷

The significance of the CJEU’s judgment and the survival of the AMWD must be, therefore, understood within the ongoing dialectic of a double movement shaping the social dimension of the European Union as a polity. One could argue that this dialectical tension stems from the historical foundations of EU’s legal and institutional structures. Scharpf has long ago highlighted the ‘social deficit’ of European integration,Footnote ⁴⁸ while Joerges has consistently reminded us of Europe’s nature as a ‘dual polity’, where upon its foundation economic integration advanced rapidly at the supranational level, but social protection remained largely anchored in national and local democratic institutions.Footnote ⁴⁹ Acknowledging this ‘embedded liberal compromise’ as the cornerstone of Europe’s social dimension,Footnote ⁵⁰ labour movements and proponents of the Social Europe project have regarded an EU-level instrument on minimum wages as vital, especially amid rising labour and social precarity across Member States, regions, and economic sectors. Appreciating the judgment’s significance requires seeing EU’s social dimension not as an add-on to market integration, but increasingly as an essential part of Europe’s evolution as a polity striving to establish its own legal structures for democratic governance, including organised labour as democratic political actor at local, Member State and EU level.

In this context, beyond the fact that having a directive regulating minimum wages in times of growing precarisation of the workforce through processes of workplace fissuring,Footnote ⁵¹ financialised capitalism and technological disruption is important as such, the CJEU decision is significant for at least three reasons. First, as Erne has argued, it is at least consistent with EU’s legal intervention in the wage domain during the austerity years. Erne argues that the judgment might have been different if the EU was not carrying that legacy of austerity intervention on wages in Europe’s southern periphery.Footnote ⁵² Second, the judgment maintained further legal consistency in rejecting the AG Opinion and its disregard of earlier case law and legal instruments that affect the category of wage.Footnote ⁵³ Third, and most importantly, upholding the relevance of collective bargaining and union involvement in wage setting, the judgment follows a development recognised earlier (to a lesser extent) in the Revision of the PWD, and in doing so partly repairs the negative effects of the Laval jurisprudence and austerity politics by further incorporating collectively organised labour as a legitimate component of established structures of EU democratic governance. Despite this recognition, within the broader picture of the continuous double movement, the judgment remains a ‘small’ victory for Social Europe, and the greater task for policy and scholarship is to confront enduring regulatory blind spots in a world of deepening inequalities and intersecting social, gender, racial and environmental injustices.

4. In this issue

Hesselink invites the reader to take the transformative potential of EU law seriously, despite the many entanglements with different forms of injustice. In his view, EU law can recover its emancipatory potential if legislators and scholars focus on ‘pre-figurative’ societal practices, that is, the very same practices that are already planting the seeds of a more just society, and treading the path that leads to it. This is illustrated with the sketch of an alternative use of EU law, consisting in the legal occupation of the European Commission’s plan for the so-called ‘28th legal regime’.

Kuczerawy and Quintais explore the obligations which restrict platforms’ discretion to remove or deprioritise certain content, the so-called ‘must carry’ obligations. On the basis of a thorough reconstruction of national and supranational law, they argue that these measures are best understood as rules that privilege particular speakers, notably media organisations and politicians, by limiting platform autonomy in content moderation. This is found wanting, as it is unlikely to offer sustainable solutions to the structural imbalances between platforms, media providers and politicians. Structural solutions have to take seriously the context of the law, and consist of strengthening journalism through financial and structural support, fostering innovation and local media, and prioritising user empowerment measures.

Bouwman reminds us that it is not infrequent that EU consumer law follows a ‘one-size-fits-all’ approach that ignores individual needs. This leads to under-protection, with the result that consumers are harmed, and the internal market is undermined. The author provides the reader a detailed study of the legal problems involved in the operationalisation of differentiation. This is followed by directions for improvement, such as personalising law through technology.

The debate on the social function of private law is most probably as old as private law. It has acquired, though, a decisive salience in the industrial age, as what we used to call ‘development’ has pushed the planet beyond its limits. Quarta reminds us that there is no possible ecological transition without some form of ecological planning, which requires a redefinition not only of the role of the state, but in particular of private law, called to play a central role in the distribution of the social and economic burdens resulting from what we refer as ‘sustainability’ policies, policies which, if anything, are too modest by half at present.

Infantino dissects for our readers the so-called ‘Digital Economy and Society Index’ (DESI) Dashboard, a set of indicators created by the EU to monitor Member States’ progress in digital transformation and sustainability goals, linked, at least formally, to the UN’s 2030 Agenda. The article shows how what at first sight seem not only data, but the proverbial objective data, are in fact the means through which a narrow, pro-market digitisation agenda is promoted. This is another case in which government with numbers has degenerated into government by numbers, with results that may well be incompatible with the very objectives that are allegedly promoted.

Readers of this journal have already had the chance to read in extenso about the theories of EU law that assign to Article 2 TUE a fundamental role in the architecture of the European legal field. In particular, a dedicated symposium was published in the previous issue, featuring, among others, a contribution by Armin von Bogdandy. We are happy to report that the symposium has already triggered a vibrant debate, some fruits of which can be picked up by ELO readers in this issue. Somek suggests that we should put Bogdandy’s Hegelian credentials to the test, in particular on what concerns the fundamental concept, in Hegel and in Bogdandy’s reception of Hegel, of civil society. By means of what amounts to the blurring of the conceptual framework of the author of Philosophy of Right, Bogdandy fails to mobilise the whole reconstructive potential of Hegel’s conceptual toolkit, and consequently, renders himself incapable of digging deep into the nature of the EU and of the European crises, characterised by unresolved conflicts, existential aloneness and fake forms of solidarity. Van den Brink engages with the implications that Bogdandy’s theorisation of the European legal space around Article 2 TEU has for the reconstruction of EU law. He finds the theory self-contradictory. It leads, we are told, to a form of constructivism that is not only ill-suited to constitutional reasoning but amounts to a peculiar form of constitutionalism without principle. The dream of the jurist flies so high that Bogdandy loses the basis for any critical evaluation of the case law of the CJEU, at the very same time that the theory ultimately gets aligned with undemocratic and unconstitutional views of EU law.

The concept of constitutional identity, awkwardly alluded to in Article 4(2) TEU, is notorious in EU legal studies for its use, or abuse, by certain national constitutional courts as a shield against the full force of EU Law. In this issue’s symposium, beautifully introduced by editors Geenens, Maes and Van Liedekerke, the contributors provide a rich tapestry of historical, conceptual and methodological analysis that should encourage deeper reflection on the role and place of the concept in political and constitutional thought.