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National Responses to EuropeanCourt JurisprudenceMichael BlaubergerPublished online: 05 Sep 2013.
To cite this article: Michael Blauberger (2014) National Responses toEuropean Court Jurisprudence, West European Politics, 37:3, 457-474, DOI:10.1080/01402382.2013.830464
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National Responses to European CourtJurisprudence
MICHAEL BLAUBERGER
The power of the European Court of Justice (ECJ) to promote European integrationthrough law has been broadly acknowledged, but the court’s domestic impact hasreceived less attention and remains contested. In particular, the ambiguity of many ECJjudgments is said to have two opposed effects: According to one logic, legal ambiguityenables national policy-makers to contain the impact of court rulings, i.e. to ignorepotentially broader policy implications. According to another logic, ambiguous caselaw provides opportunities for interested litigants to pressure national policy-makersinto (anticipatory) adjustments. Which of these two logics prevails, it is argued, dependson the distribution of legal uncertainty costs between supporters and challengers of theregulatory status quo. The argument is supported by two in-depth case studies on thedomestic responses to series of ECJ rulings concerning the free movement of capital(golden shares) and services (posted workers).
How do EU member states respond domestically to the rulings of the EuropeanCourt of Justice (ECJ)? The court’s power to promote ‘integration throughlaw’ has been broadly acknowledged and analysed. Less attention has beendevoted to the ECJ’s role as an ‘agent of Europeanization’ (Panke 2007), i.e.to the actual policy impact of European jurisprudence at the domestic level.Disagreement exists regarding the extent and the mechanisms of ECJ-drivenEuropeanisation. A better understanding of ECJ-driven Europeanisation iscrucial, however, for assessing whether indeed ‘the constitutional balance ofthe multilevel European polity … is upset by the “perpetual momentum” ofECJ case law’ (Scharpf 2012: 134).
Existing studies agree that ECJ rulings are often ambiguous and notself-implementing, but they reach very different conclusions regarding theirdomestic impact: according to one logic, legal ambiguity allows national policy-makers to follow ECJ rulings only in the concrete cases, but to ignore theirbroader policy impact (Conant 2002). According to another logic, ambiguous
Correspondence Address: [email protected]
West European Politics, 2014
Vol. 37, No. 3, 457–474, http://dx.doi.org/10.1080/01402382.2013.830464
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case law enables interested litigants to pressure national policy-makers intofar-reaching adjustments (Schmidt 2008: 304). While both logics are theoreti-cally plausible and supported by empirical evidence, the puzzle remains: whatdetermines which logic prevails?
Domestic responses to ECJ rulings, it will be argued, depend on how thecosts of legal uncertainty are distributed between supporters and challengers ofthe regulatory status quo (i.e. of existing domestic rules before their adjustmentto ECJ jurisprudence). Time constraints, the population of similar cases andeach party’s worst case scenario for an eventual ECJ ruling affect the distribu-tion of uncertainty costs. If the challengers of the regulatory status quo have tocarry the main burden of legal uncertainty, national policy-makers are likely topursue a strategy of ‘contained compliance’. By contrast, if legal uncertainty isparticularly costly for the supporters of the regulatory status quo, a strategy of‘anticipatory obedience’ with ECJ jurisprudence is more likely.
The next two sections expose the puzzle of this article against the back-ground of existing Europeanisation research and present the main theoreticalargument. Subsequently, the argument’s plausibility is shown by two in-depthcase studies on the domestic responses to series of ECJ rulings concerning thefree movement of capital (golden shares cases) and the free movement ofservices (posted workers cases). Confronted with the court’s jurisprudence onVolkswagen and other golden shares cases, EU member states largely adopteda strategy of contained compliance, while the ECJ’s rulings on the regulationof posted workers in Rüffert and Laval triggered encompassing domesticreforms. This diversity of domestic responses to ECJ jurisprudence reflectsdifferent distributions of uncertainty costs between the parties involved in thelegal conflicts.
The Domestic Impact of ECJ Jurisprudence
Literature on the ECJ and its role in promoting ‘integration through law’abounds (Stone Sweet 2010). The same holds true for the issue of ‘Europeani-sation’, i.e. the domestic impact of European integration (Börzel and Risse2007). Yet relatively few studies focus on the intersection between these twobroader research agendas, namely on the domestic impact of ECJ jurispru-dence. On the one hand, studies on court-driven integration through law aremainly interested in novel legal interpretations established through case law,but they rarely include the successive process of political absorption and,thereby, tend to overestimate the court’s broader policy impact: ‘most accountsimplicitly or explicitly assume that ECJ rulings are automatic catalysts forpolicy change and that innovative legal interpretation prompts wide-rangingreforms’ (Conant 2002: 15). On the other hand, studies on Europeanisationand member state compliance usually concentrate on the implementation ofEuropean secondary law and, therefore, tend to overlook domestic adjustmentstriggered by the court’s interpretation of European Treaty law. The constrainingeffect of ECJ-driven negative integration is particularly difficult to capture and,
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hence, domestic ‘non-decisions’ resulting from the court’s interpretation ofEuropean market freedoms are easily neglected (Töller 2010: 429f.).
Nevertheless, both literatures share two important insights concerning thedomestic impact of ECJ jurisprudence. First, the interpretation of EuropeanTreaty law is often uncertain and ambiguous. Beforehand, ECJ rulings aredifficult to predict, and afterwards their application remains contested. ECJrulings do not prescribe specific policy responses and their implications beyondindividual cases are often unclear. There is no doctrine of binding judicialprecedent in EU law and core principles such as the proportionality test leavegreat room for interpretation when applied to new facts (Martinsen 2011: 945).Secondly, the court can hardly act as an ‘engine of integration’ or as an ‘agentof Europeanisation’ just by itself. Agency is required to provide the ECJ withcases in the first place and to turn ECJ judgments into real domestic change:‘the Court’s case law may change legal norms, policy frames, and incentivestructures for actors, but its jurisprudence is never self-implementing at thenational level’ (Stone Sweet 2010: 33).
How far are legal ambiguity and the role of agency crucial forunderstanding domestic responses to ECJ jurisprudence? If we suppose thatECJ rulings are never self-implementing and, furthermore, exclude cases inwhich member state governments simply use court rulings as welcome pretextsfor unpopular domestic reforms, we can derive two competing expectationsregarding domestic responses to ECJ jurisprudence: According to the logic ofcontained compliance, most prominently represented by Lisa Conant, legalambiguity provides loopholes for domestic policy-makers and allows them toavoid systematic reform: ‘Uncertainties that arise from indeterminate judicialprinciples dissuade general policy responses. As long as the application oflegal principles remains open to debate, Member State officials generally main-tain preferred policies’ (Conant 2002: 70). In this view, member states usuallyrespond by implementing ambiguous ECJ rulings only with respect to the indi-vidual case treated in court, while disregarding more far-reaching implications(Conant 2002: 32). Governments from other member states which are nottargeted by an ECJ judgment but pursue similar policies will typically denyany obligation and continue ‘business as usual’ (Conant 2002: 69). A domesticapproach of contained compliance may be a strategic political decision, e.g.when member state legislatures deliberately adopt an attitude of ‘wait and see’in the face of upcoming legal challenges (Slagter 2009: 191), or it may simplyresult from the unawareness of national administrations as regards potentiallybroader implications of ECJ case law (Conant 2002: 70).
Yet the ambiguity of ECJ case law might not always pay out in favour ofmember states. According to a different perspective, most pronouncedly taken bySusanne K. Schmidt, ambiguous ECJ jurisprudence provides an opportunitystructure for interested litigants to indirectly pursue their domestic interest in theEU’s multi-level system. Enabled by uncertain case law, they can pressuredomestic policy-makers into anticipatory obedience: ‘The higher the legal uncer-tainty arising from a Treaty rule and its interpretation, the more opportunities
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it offers for domestic actors to turn to the European courts in order to press forEuropeanization’ (Schmidt 2008: 304). Regarded from that perspective, legaluncertainty is highly undesirable for domestic policy-makers. Political planningreliability is undermined if domestic policies are adopted or maintained onlyunder the reservation that they might be challenged under European law at anytime. ‘Contained compliance’ measures remain vulnerable to follow-upchallenges and, thus, invite ever more judicial interference in domestic affairs(Scharpf 2012: 134). In contrast to political compromises, the decisions ofindependent courts are difficult to predict and impossible to control for nationalpolicy-makers. They may, therefore, prefer to compromise with potential litigantsand anticipate possible legal challenges in designing domestic policies. In fact,such a strategy of anticipatory obedience may allow national regulatoryautonomy to be preserved at least partially if it successfully forestalls ever moreprivate litigation (Martinsen and Vrangbæk 2008: 182). Moreover, court rulingsmay create new legal uncertainty elsewhere and thus trigger adjustments even inmember states which are not directly involved in individual ECJ cases (Schmidt2008: 304).
In sum, member state governments can draw very different conclusionsfrom the fact that ECJ jurisprudence often leaves considerable room forinterpretation: they may follow a logic of contained compliance or one ofanticipatory obedience. But what determines whether legal ambiguity is mainlyperceived by national policy-makers as providing an escape route from strictcompliance or as entailing a high risk of more and more challengingjurisprudence? Regarded from the perspective of potential litigants: when doesambiguous case law frustrate or encourage follow-up litigation?
The Costs of Legal Uncertainty
The answer to the puzzle just outlined, it will be argued, rests on the followingthree claims: legal uncertainty is costly; the distribution of uncertainty costsvaries; and depending on whether challengers or supporters of the regulatorystatus quo carry the main share of uncertainty costs, contained compliance oranticipatory obedience are more likely.
To begin with, legal uncertainty, understood as a lack of predictability oflaw (Schmidt 2008: 300), is inefficient in a rule of law system and, therefore,costly for those affected. Hence, if legal uncertainty persists despite the court’sjurisprudence and unless the parties to a conflict reach a stable compromise bythemselves, they have to carry uncertainty costs.
These uncertainty costs, however, can be distributed differently betweensupporters of the regulatory status quo, i.e. governments and the beneficiariesof existing regulation, and its challengers. Three main factors determine thecost distribution: time constraints, the population of similar cases, and theparties’ worst case scenario for an eventual ECJ ruling.
Time constraints: legal conflicts which are decided by the ECJ take time –about 16 to 20 months on average from the submission of an infringement
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action by the Commission or a preliminary reference from a national court tothe final ECJ ruling (European Court of Justice 2011: 96). Moreover, thereferral to the ECJ comes only at a very late stage in the overall proceedings.While the Commission does not publish information on the average durationof its infringement actions, the list of on-going proceedings includes casesfrom the 1990s (European Commission 2011a: 260, 273). Knowing about thepotential length of legal proceedings, national policy-makers and potentiallitigants may have a strong interest in avoiding sustained legal uncertainty. Onthe one hand, if an ECJ judgment challenges an active domestic policy,member state governments are under particular time pressure to re-establish afirm legal basis for their action. Even if elected politicians themselves mightnot care too much about potential legal conflicts in the future, national admin-istrations and potential beneficiaries of domestic policies have an immediateinterest in avoiding legal uncertainty, e.g. when allocating public tenders orreceiving subsidies (Blauberger 2009: 1041). On the other hand, an economicactor or citizen acutely suffering from a restriction to the free movement, e.g.missing out some vital cross-border business, can hardly count on a judicialsolution in the short or medium term. Thus, persistent legal uncertainty getscostlier the tighter one’s time constraints are.
Population of similar cases: individual court rulings are always morespecific than general legislation, but they can nevertheless differ with regard tothe generalisability of the legal issues addressed and, thus, potentially targetmany or few similar legal situations. Moreover, the expected benefits from asuccessful legal challenge may motivate more or less interested litigants.Access to the judicial system can be rather permissive, e.g. when secondarylegislation establishes clear rights and obligations, or restrictive, e.g. whenprivate parties largely depend on infringement action on the part of theCommission (Conant 2002: 53, 73). As a result, member state governmentscan become confronted with few or many follow-up legal conflicts after anECJ judgment. The larger the population of similar cases, the costlier itbecomes for national policy-makers to prevent legal challenges through politi-cal compromises and to defend existing regulation in the courts. By contrast, ifinterested litigants cannot count on potential allies, they have to bear the entirecosts of upholding the threat of a legal challenge and, eventually, of sustainingthe case in court by themselves.
Worst case scenario: implicitly or explicitly, parties to a legal conflictdevelop worst case scenarios for an eventual ECJ ruling. For the challengers ofthe regulatory status quo, this scenario is relatively easy to establish: it consistsof a judicial approval of the regulatory status quo. For the supporters of theregulatory status quo, however, the potential implications of a negative ECJruling are often highly uncertain in advance and may only materialise afterseveral rounds in court. Thus, even tangible costs such as infringementpenalties enter the strategic calculus of the supporters as an uncertain andsubjective element. Depending on the legal framework of a particular policy,ECJ rulings may involve different kinds of financial risks, e.g. recovery
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decisions in the field of state aid, contractual penalties in public procurement,state liability and even private liability for infringements of EU law. Establish-ing liability, for instance, is difficult and far from coherent in practice (Conant2002: 62), but already the possibility of such a worst case significantly altersthe uncertainty costs for national policy-makers. In harmless cases, memberstate governments can afford to wait for judicial defeats, even though ‘previousECJ case law virtually guarantees they will lose’ (Conant 2002: 72). Adisputed individual claim to social benefits, for example, can still be satisfiedafter an ECJ ruling. If such a ruling risks motivating many follow-up claims,however, national policy-makers may prefer to generously satisfy the individ-ual claim in order to avoid a binding ruling (Obermaier 2008: 751).
Taken together, these factors determine the distribution of uncertainty costsbetween supporters and challengers of the regulatory status quo and, ultimately,the kind of domestic response to the ECJ’s jurisprudence to be expected: Thehigher the burden of legal uncertainty for the supporters of the regulatory sta-tus quo, the more likely they are to adopt a strategy of anticipatory obediencein order to avoid sustained legal conflicts. By contrast, the higher the uncer-tainty costs of the challengers, the easier it becomes for national policy-makersto resist adjustment pressures and the more likely they are to adopt a strategyof contained compliance.
Case Studies
The remainder of this text assesses the plausibility of the theoretical argumentjust outlined by comparing member states’ responses to two series of ECJjudgments on the free movement of capital (golden shares) and services(posted workers). Starting from series of judgments rather than isolated casesallows a better understanding of member state responses in the context ofexisting case law. Moreover, the analysis not only investigates those memberstates directly targeted by the court’s rulings, but also looks for indirect effectsin other member states.
The two series of judgments have been chosen because their legal and polit-ical background was largely similar, but the uncertainty costs were distributedvery differently. In legal terms, both series affected policies which are not har-monised at EU level, but which are, according to the ECJ, constrained by Euro-pean market freedoms. They are, thus, typical examples of ECJ-driven negativeintegration. In terms of political salience, Volkswagen1 and Laval2 were cer-tainly among those ECJ rulings which received the highest public attention inrecent years. The court was strongly criticised by member states’ governmentsfor intruding into essentially domestic policies. At the same time, liberal eco-nomic interests such as foreign investors and service providers welcomed thejudgments for their anti-protectionist thrust. As the judgments still left consider-able room for interpretation, both kinds of responses outlined above were primafacie plausible: domestic policy-makers trying to contain compliance in order to
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preserve regulatory autonomy, and private actors threatening to engage infollow-up litigation in order to push for encompassing reform.
As will be shown, a strategy of contained compliance prevailed in theaftermath of Volkswagen and other golden shares cases, while the policyresponses to Laval and Rüffert went further and even tried to anticipate futurelegal challenges.
Volkswagen and the Golden Shares Cases
The ECJ’s Volkswagen ruling is usually regarded as being part of a largerseries of ‘golden shares’ judgments by the Court since 2000 (Zumbansen andSaam 2007: 1028). All of these cases concerned public special rights informerly state-owned enterprises, e.g. regarding the appointment of boardmembers or voting privileges in important company decisions. The specialrights are either based on the public ownership of a special share in a privatecompany (a golden share in a narrow sense), or they are established byregulation (Grundmann and Möslein 2004: 2).
Member state governments usually justify golden shares as a necessarymeans to secure the provision of services of public interest in sensitive sectorssuch as energy, telecommunications or banking. By contrast, the ECJ adopteda restrictive position towards golden shares which are often suspected toprotect ‘national champions’ from foreign influence rather than serving the pro-vision of services of public interest: it interpreted public special rights broadlyas restrictions to the free movement of capital and, rejecting the justificationsforwarded by member state governments, it largely considered the restrictionsdisproportionate. Yet the court has not entirely ruled out the possibility ofgolden shares which are compatible with EU law and has left some room forlegal interpretation. In 2002, it permitted golden shares in the Belgian energysector against the objections of the European Commission.3
The German response to Volkswagen. The ECJ delivered its judgment onVolkswagen on 23 October 2007 and supported the claim of the Commissionthat Germany’s Volkswagen law constituted an unjustified restriction of the freemovement of capital. The Commission had challenged three provisions of theVolkswagen law: the public privilege to appoint two members of Volkswagen’ssupervisory board; the cap of voting rights at 20 per cent for any shareholder(including those holding more than 20 per cent of Volkswagen shares); and thefixing of a specific blocking minority of 20 per cent of the general assembly ofshareholders (whereas German law on public limited companies fixes theblocking majority at 25 per cent). Although the latter provisions applied toprivate and public shareholders alike, they were seen by the court as de factofavouring the Land of Lower Saxony, which holds precisely 20.01 per cent ofVolkswagen shares.
The German response to Volkswagen marks a striking attempt to containcompliance with the Court’s ruling. A revised Volkswagen law was adopted in
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December 2008 which removed only the first two contested provisions, butkept the 20 per cent blocking minority. Due to an ambiguity in the ECJ’sruling, Germany could argue that the fixing of the blocking minority had notbeen challenged independently, but only ‘in conjunction with’ (no. 83(1) of thejudgment) the voting cap (Gerner-Beuerle 2012: 102). In addition to therevised Volkswagen law, Lower Saxony together with the other major share-holders of Volkswagen reintroduced parts of the contested special rights intothe company’s articles of association in December 2009, including the right ofLower Saxony to appoint two members of Volkswagen’s supervisory board andthe 20 per cent blocking minority (Gerner-Beuerle 2012: 104). Again, thismeasure took advantage of persistent legal ambiguity, namely regarding thequestion whether Volkswagen’s articles of association, autonomously adoptedby its shareholders, can infringe European Treaty freedoms. Dissatisfied withGermany’s response, the Commission ultimately referred the case back to theECJ.4
So far, legal uncertainty allowed German authorities to contain compliancein the Volkswagen case. First and foremost, the German government was ableto play for time. The Commission’s first informal attempts to tackle theVolkswagen law date back to 2001; the infringement proceeding was initiatedby a formal notice to the German government in March 2003; more than fouryears elapsed after the court’s first ruling before the Commission referred thecase back to the ECJ. After the judgment, the Commission warned Germanauthorities very early on that it would take a close look at the revised law, buta strategy of anticipatory obedience with the Commission’s claims was explic-itly rejected by Germany’s minister of justice and no further adjustments wereintroduced into the law after December 2008.5 By contrast, time (or the lackthereof) was crucial for one of the major interests behind the Commission’sinfringement proceeding, namely for Porsche and its planned takeover ofVolkswagen. Since 2005, Porsche had secretly prepared a takeover ofVolkswagen, seeking to incrementally acquire 75 per cent of Volkswagenshares and counting on an abolition of the Volkswagen law. When the financialcrisis hit in 2008 and the revision of the Volkswagen law did not remove the20 per cent blocking minority, however, the plan collapsed (Gerner-Beuerle2012: 101–2).
In addition, the peculiarity of the Volkswagen law and the fact that Germanauthorities had little to fear even from a negative ECJ judgment allowed themto contain compliance. Prior to the ECJ’s ruling in 2007, Germany argued thatVolkswagen was historically and legally completely different from the goldenshares cases and, hence, it was not affected by the ECJ’s case law on thatmatter.6 Afterwards, the relevance of the golden shares jurisprudence could nolonger be generally denied, but the ambiguities of the Volkswagen judgmentdescribed above still allowed the narrow revision to be defended with verycase-specific arguments. The population of similar cases, thus, was zero. Giventhe uniqueness of the Volkswagen law, German authorities never had to fearany similar challenges elsewhere. At the same time, the Commission had to
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invest considerable efforts to purse the infringement proceedings againstGermany, given its limited enforcement capacities and the specifics of the case.Apart from an unsuccessful domestic legal challenge against the 20 per centblocking minority in Volkswagen’s articles of association,7 Porsche largelydepended on the Commission’s determination to continue its infringementaction, but when the Commission remained inactive until late 2011, Porsche’splanned takeover had already vanished.
Finally, Germany did not suffer any sanctions from the court’s ruling in2007 and the Commission’s on-going infringement proceedings. In the worstcase of a second negative judgment, Germany would face financial penalties,but even these could be limited by another effort to contain compliance, i.e. byquickly removing the blocking minority from the Volkswagen law whilekeeping it in the articles of association (Holle 2010: 19–20).
Similar responses in other golden shares cases. Volkswagen probably was anextraordinary case in terms of public attention, but the pattern of contained anddelayed compliance just analysed is paradigmatic for many golden sharescases. Typically, many member states do not give in to the Commission’sdemands unless the court finally finds an infringement of European Treatyrules and even after the ECJ has ruled, a considerable number of conflictspersist. Out of 26 proceedings concerning golden shares so far, the court hadto rule on 15 cases and only one case was decided positively by the court (seenote 4). Compared to member states’ average compliance record, these figuresare striking. According to the Commission, 88 per cent of all infringementproceedings are closed at earlier stages, i.e. without any involvement of theECJ (European Commission 2011a: 3–4).
As in the case of Volkswagen, member states’ recalcitrance to compromisewith the Commission and to draw lessons from the increasingly rich ECJ caselaw on golden shares can be explained by the distribution of uncertainty costs.To begin with, the hardest-fought conflicts about golden shares revolve aroundforeign investments in companies which are protected by public special rightsand time-consuming conflicts frustrate investors. For example, when theAustrian oil and gas company OMV publicly declared its intention to mergewith its Hungarian competitor MOL in September 2007, the Hungarianparliament adopted the Act CXVI/2007 ‘relating to companies of particularimportance for the security of public services’ (Butler 2011: 637) in October2007. This law, unofficially labelled ‘Lex MOL’, aimed at preventing whatwas perceived as a hostile takeover of MOL by a foreign enterprise underAustrian state control and with opaque relations to Russian Gazprom.8 Eventu-ally, OMV withdrew its bid for MOL when, somewhat schizophrenically, theEuropean Commission criticised Hungary’s infringement of the internal market,but also voiced concerns regarding the competition aspect of the plannedmerger (Butler 2011: 642). In a similar case from the energy sector, theSpanish government prevented the takeover of Endesa by the Germanenterprise Eon. Spain first played for time by blocking the merger and when
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Spanish Acciona and Italian Enel announced a joint offer for Endesa, Eonwithdrew its bid (Harker 2007: 517). In another legally complex case, theprospect of a lengthy conflict convinced the Italian bank Unicredito to give into the Polish government before the Commission could even push its infringe-ment proceeding further. The Commission had already approved the merger ofUnicredito and German HVB in 2005, but the Polish government feared thatthe merged bank would hold a dominant position on the Polish market. There-fore, claiming special rights from a privatisation agreement with Unicreditofrom 1999 concerning the former state-owned Polish bank Pekao, Polandrequired Unicredito to sell a large share of the Polish HVB branches to a thirdparty. In addition, Poland filed a complaint against the Commission’s mergerdecision to the Court of First Instance (CFI). In order to avoid legal uncer-tainty, Unicredito agreed to the sale of its Polish HVB branches (Farmer 2008:199–201).
Apart from the importance of time constraints, more commonalitiesbetween the responses to Volkswagen and other golden shares cases exist. Thepopulation of similar cases is always very small or zero. To deny the applica-bility of previous golden shares jurisprudence, member state governments typi-cally emphasise the uniqueness of their own golden shares and try to benefitfrom remaining legal gaps. For example, Hungary framed its ‘Lex MOL’ ingeneral terms of securing energy supply and did not mention any specificenterprise in order to distinguish itself from Germany’s Volkswagen law (Butler2011: 638). As an alternative strategy, member states explicitly refer to theonly permissive judgment of the ECJ regarding Belgian golden shares andargue that their golden shares legislation was drafted according to the Belgianmodel (Adamczyk and Barański 2010: 96). In any event, member statesinterpret existing case law on golden shares so as to largely dispute potentiallegal constraints for their own golden shares. As a consequence, challengers ofexisting golden shares need to tackle each case individually. Moreover, privateactors have to rely on the Commission which has only limited enforcementcapacities and which carries the main burden of proof when referring infringe-ment cases to the ECJ.
Moreover, as with Volkswagen, member state governments often do notappear to be deterred by the worst case of a negative ECJ judgment. ThePortuguese government already lost four golden shares cases in court, theItalian government lost three, but nevertheless they fought these cases relent-lessly. Interestingly, the stakes have risen due to the sovereign debt crisis. Theworst case scenarios for the Portuguese and Italian governments have becomemuch more severe. The Commission managed to link the issue of goldenshares to the negotiations on the Portuguese rescue package and to Italianreforms under the Monti government. As a consequence, Portugal abolished itsgolden shares (European Commission 2011b: 26) and Italy avoided a new ECJreferral by reform of its golden shares legislation.9 By and large, however,member states’ responses to the ECJ’s golden shares jurisprudence providecompelling evidence for a logic of contained compliance.
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Laval and the Posted Workers Cases
In late 2007 and early 2008, the ECJ decided a series of cases on the applica-bility of domestic labour law to workers posted from other member states:Laval, Rüffert10 and Commission v Luxembourg.11 In all three cases, the ECJfound national provisions to restrict the free movement of services underEuropean Treaty law as specified in the Posted Workers Directive 96/71/EC.According to the judgments, member states were only allowed to subject postedworkers to a ‘nucleus of mandatory rules for minimum protection’, but not totheir entire regulation applicable to domestic workers, in particular not to theterms and conditions of non-universally applicable collective agreements.
At the same time, the Court explicitly acknowledged member states’ roomfor manoeuvre by stating that ‘the material content of those mandatory rulesfor minimum protection … may accordingly be freely defined by the MemberStates, in compliance with the Treaty and the general principles of Communitylaw’ (No. 60 of the Laval judgment) and, therefore, member states were ‘freeto choose a system … which is not expressly mentioned in that directive (onPosted Workers), provided that it does not hinder the provision of servicesbetween the Member States’ (No. 68). Obviously, these extracts from thecourt’s rulings are highly ambiguous, e.g. regarding the scope of ‘minimumprotection’ or the reference to systems ‘not expressly mentioned’ in the direc-tive and, hence, the judgments’ implementation was contested at the domesticlevel.
Swedish and Danish responses to Laval. The Laval judgment of the ECJresponded to a preliminary reference from the Swedish Labour Court andmarked the climax of a conflict between the Swedish building workers’ union(Byggnads) and the Latvian construction company Laval un Partneri. Lavalwanted to post Latvian workers in order to build a school in Sweden, butinstead of reaching an agreement with Swedish trade unionists, the companysigned a collective agreement with a Latvian trade union. When Swedish tradeunionists denied the validity of this agreement and took collective action byblocking the construction site, Laval took the conflict to court. Eventually, theECJ acknowledged the fundamental right of trade unions to take collectiveaction, but found the specific actions in this case, blocking the constructionsite, disproportionate. In particular, the ECJ criticised the lack of precise provi-sions on the determination of minimum pay, given that no statutory minimumwage exists in Sweden and collective agreements are not universally binding.In addition, the Swedish ‘Lex Britannia’, which permitted collective actionirrespective of existing collective agreements under foreign law, was found tobe discriminatory.
In response to the Laval judgment, the Swedish government and socialpartners undertook a comprehensive reform of the regulation of posted workerswhich went far beyond the individual case and also aimed at anticipatingfuture conflicts with EU law. An inquiry was mandated to explore possible
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responses and legislation was adopted in November 2009 which abolished thecontested provision of the Lex Britannia and specified conditions for lawfulcollective action under the Posting of Workers Act. According to these condi-tions, collective action against a foreign employer is only permitted if it aimsat establishing working conditions and wages which correspond to thoseconcluded at the central level, which are applied throughout Sweden tocorresponding workers in the same sector, and which remain within thenucleus circumscribed by the Posted Workers Directive (Rönnmar 2010: 285).As a consequence, Swedish trade unions had to translate their normal collec-tive agreements into new ‘posting agreements’, which are restricted to thenucleus of minimum conditions and supposed to increase transparency forforeign employers with regard to the calculation of minimum wages.
Notably, the Laval judgment was not only followed by legislative reformin Sweden, but in Denmark as well. Denmark was not directly targeted by theECJ’s judgment, but given broad similarities between the Swedish and Danishmodels of regulating posted work, the Danish government was concernedabout the potential implications of the ECJ’s ruling in Denmark. Therefore, theDanish government and social partners engaged in a similar reform processwhich was concluded one year earlier than the Swedish reform (Malmberg2010). The Danish reform differs from the Swedish one in important respects,e.g. regarding the broader definition of minimum wages, but – as in theSwedish case – it aims at avoiding and anticipating legal conflicts arising inthe context of EU Treaty law (Blauberger 2012: 117).
How can we explain these domestic responses which clearly went beyondthe individual case in Sweden and even involved legislative reform inDenmark? In contrast to Volkswagen and the golden shares cases, legal uncer-tainty posed a major problem for member states’ governments and, even moreso, for trade unions as the intended beneficiaries of existing regulation. Timepressure to overcome legal uncertainty was particularly strong in Denmark; thepopulation of similar cases was high. At the time of the Laval ruling, Danishtrade unions were involved in a considerable number of collective actionmeasures against foreign service providers. As long as the legal basis of thesemeasures was not firmly re-established in the light of Laval, the threat of legalchallenges under EU law was urgent. The possibility of a ‘Danish Laval’ casehad already become apparent in 2005, but the case was solved domesticallywithout reference to the ECJ and based on a permissive interpretation of EUTreaty law (Neergaard and Nielsen 2010: 485). After Laval, such a legalinterpretation was hardly sustainable and, therefore, the Danish reform was aproactive adjustment in order to ensure the continued lawfulness of collectiveactions measures. In Sweden, time pressure was less pronounced as no othercollective action measures comparable to Laval were under way. Still, strikesand sympathy actions are used regularly by Swedish trade unions to enforcetheir demands in collective bargaining and, thus, their legal basis needed to berevised as well. Under the shadow of the Laval judgment and its pendingdomestic implementation, Swedish trade unions deplored a considerable
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‘chilling effect’ (Rönnmar 2010: 286), i.e. trade unions were more cautious intheir use of allegedly unlawful collective action measures and, thus, they wereweakened in their collective bargaining position.
Finally, Laval fundamentally changed the worst case scenario for Swedishtrade unions. In the run-up to the ECJ’s ruling, Swedish trade unionists wererather confident that they would win the case and took an uncompromisingposition (Davesne 2009: 12). Their worst case scenario was an ECJ rulingwhich would have obliged the referring national court to examine theproportionality of collective action measures in the light of European law.Unexpectedly, however, the ECJ decided the issue itself and declared themeasures against Laval disproportionate. Even worse for Swedish trade unions,the conflict continued at the domestic level as Laval claimed financial damagesfor its losses as well as punitive damages for the breach of European law. TheSwedish Labour Court partly affirmed the liability of Swedish trade unions inDecember 2009, ordering them to pay about e55,000 of punitive damages(Rönnmar 2010: 281). In sum, Swedish trade unions underestimated the possi-ble outcome of the Laval conflict, which partly explains their uncompromisingattitude during the conflict. Afterwards, however, legislative reform and a morecautious approach towards collective action measures against foreign serviceproviders aimed at avoiding similar legal conflicts in the future, not the leastbecause of the threat of punitive damages. Avoiding follow-up conflicts toLaval was also seen as essential for the legitimacy of Swedish and Danishautonomous collective bargaining which rests on the self-image of socialpartners being able to ‘crack the nuts ourselves’ (Malmberg 2010: 13).
German Länder responses to Rüffert. A similar pattern of broad domesticreform triggered by the ECJ’s jurisprudence on posted workers can beobserved in the Rüffert case. The conflict concerned the Public ProcurementAct of the German Land Lower Saxony, in particular the requirement forcompanies to commit themselves to local collective agreements in order to beeligible for public tenders. According to the ECJ’s ruling of 3 April 2008,Lower Saxony’s Public Procurement Act imposed an unjustified restriction onthe freedom to provide services under the Posted Workers Directive, in particu-lar as it protected only workers in the public sector and referred to collectiveagreements that were not universally applicable.
The Rüffert judgment led to a response not just in Lower Saxony, but ittriggered a process of legislative reform throughout almost all German Länder.Immediately after the ECJ’s ruling, all Länder with similar legislation as inLower Saxony disapplied the contested provisions in April and May 2008.Subsequently, from 2008 to 2011, 13 of 16 Länder revised or started to revisetheir public procurement legislation: three simply removed the contestedprovisions; six inserted new, EU-compatible provisions on social criteria intotheir public procurement legislation; and four are still reforming theirlegislation (Blauberger 2012: 120). The three Länder which remained inactivedid not have any provisions similar to those in Lower Saxony when the Rüffert
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case was decided. In terms of material content, the reforms varied considerablyamong German Länder depending on the party composition of theirgovernments (Sack 2012), but regardless of these different party positions allLänder enacted encompassing reforms rather than remaining inactive or tryingto contain compliance.
As with Laval, inaction after Rüffert would have implied significant legaluncertainty which was particularly problematic for public authorities. Theimmediate suspension of the contested provision in Lower Saxony and similarprovisions in all other Länder within less than two months shows the urgencyof the reaction. In fact, representatives of the political Left and trade unioniststried to advocate a strategy of contained compliance directly after Rüffert byhinting at the specifics of the case and by negating its broader implications, e.g. for the legislation of German Länder other than Lower Saxony (Hänleinet al. 2008: 23–24). Such a strategy, however, was clearly rejected by allLänder governments with reference to the legal uncertainty it would haveimplied for a great number of similar public tenders. In the direct aftermath ofRüffert, public authorities reported an increase of private inquiries concerningrecent or on-going public tenders (Hänlein et al. 2008: 85). Ensuring legalcertainty became the dominant issue for numerous expert surveys issued byLänder governments in the process of legislative reform (Blauberger 2012:199).
Finally, legal uncertainty was not just unattractive for public authoritiesbecause of the great population of similar cases, but because of the significantfinancial risk due to liability suits. After the ECJ had ruled, the Rüffert conflictitself was settled confidentially out of court, but follow-up conflicts wouldhave clearly implied a high risk of financial liability. In one of the earliest legalsurveys after Rüffert, commissioned by the Land Bremen, the option of ‘notbuckling’ under the court’s jurisprudence and deliberately taking the risk of‘an unsuccessful applicant claiming punitive damages’ is explicitly addressed(Däubler 2008: 12, own translation). This worst case was to be averted throughthe suspension and revision of public procurement legislation.
In sum, the ECJ’s Laval and Rüffert judgments triggered processes ofencompassing reform, not just limited to the individual cases and not restrictedto the governments directly involved in the conflicts. The absence of follow-upECJ cases to the posted workers conflicts is telling in itself: at first sight, itmight seem paradoxical given the great population of potentially similarconflicts regarding posted workers compared to the relatively few instances ofgolden shares. Yet member states have reacted to the posted workers cases in amore anticipatory and encompassing way precisely to avoid endless conflictsand the corresponding legal uncertainty.
Conclusion
This article started out from the legal ambiguity inherent in many ECJ rulingsand asked for its implications when these rulings are applied domestically.
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Two opposed expectations were derived from existing Europeanisationresearch: member state governments may opt for a strategy of containedcompliance, i.e. they use loopholes in ECJ rulings to minimise their domesticimpact, or they can adopt a strategy of anticipatory obedience, i.e. they engagein encompassing reforms to reduce the pressure from interested litigants. Bothlogics were found to be highly plausible, but underspecified: Which logicprevails, it was argued, depends on the distribution of uncertainty costsbetween supporters and challengers of the regulatory status quo.
As an empirical illustration, two series of cases with very different distribu-tions of uncertainty costs, but otherwise broad similarities, were selected.Given these similarities, other potential explanations for the diverse nationalresponses to the posted workers and golden shares jurisprudence can be largelyexcluded. Both series of rulings received great public attention as they touchedupon politically highly salient issues (see Blauberger 2012: 109, Gerner-Beu-erle 2012: 100): collective agreements and public prerogatives in strategic sec-tors. Political salience, thus, cannot account for the observed variation and thedifferent domestic responses also do not correspond to party-political cleav-ages. By and large, opposition to the court’s jurisprudence stretched across allmajor parties in the posted workers as well as the golden shares cases, yet theresponses differed. In Laval, for instance, even the conservative Swedish primeminister Reinfeldt had sided with trade unions (Davesne 2009: 13). Rüffertwas only welcomed by the small German liberal party (FDP), which abolishedthe contested provisions when it was part of the governing coalition (Sack2012), but even those social democrat Länder governments that were notdirectly targeted by the ruling engaged in encompassing reforms. Moststrikingly, the government of Lower Saxony was directly involved in theRüffert and Volkswagen conflicts, but legislative responses differed greatly. Theexamples from Lower Saxony and the consistent pattern of contained compli-ance regarding golden shares across member states are also at odds with theargument about general ‘worlds of compliance’ in the EU (Falkner et al.2005). Still, the Swedish and Danish responses to the posted workers cases fitthe arguments that these member states are particularly ‘law observant’(Falkner et al. 2005: 331) and sceptical towards settling political conflicts incourt (Wind 2010: 1047).
A cautionary remark, therefore, is in order. Research on Europeanisationthrough case law is still surprisingly scarce and could greatly benefit fromfurther studies – not only testing the argument forwarded above and alternativeaccounts against a broader set of cases, but also including other possibleresponses to European jurisprudence (e.g. when national policy-makers use theECJ merely as a scapegoat for unpopular reforms) and assessing the relativeweight of different responses. The overall share of instances of containedcompliance or anticipatory obedience cannot be established on the basis of afew case studies, but the present study has shown the existence of these twodistinct logics and has identified factors which make them likely to apply:when member state governments are able to play for time, when they do not
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face the risk of financial sanctions in the short or medium term, and whenchallengers have to fight for their cause individually, a logic of contained com-pliance is likely to prevail (as in the golden shares cases). By contrast, whenlegal uncertainty undermines political planning capacity or even involves greatfinancial risks, and when the spectrum of potential litigants becomes too vast,member state governments anticipate future legal challenges by adjustingdomestic regulation (as in the posted workers cases).
Acknowledgements
I am grateful to Martin Höpner, Rike Krämer, Tilman Krüger, Fritz W.Scharpf, Bernd Schlipphak, Daniel Seikel and two anonymous reviewers fortheir comments. I benefited particularly from my collaboration with SusanneK. Schmidt and her project A6 at the Collaborative Research Centre 597 at theUniversity of Bremen.
Notes
1. Case C-112/05, Commission v. Germany (Volkswagen), ECR 2007, I-8995.2. Case C-341/05, Laval un Partneri Ltd, ECR 2007, I-11767.3. Case C-503/99 Commission v. Belgium, ECR 2002, I-4809.4. Case C-94/12, Commission v. Germany (Volkswagen), not yet decided.5. ‘Vorauseilender Gehorsam? Abgelehnt!’ (‘Anticipatory Obedience? Refused!’, own
translation), Sueddeutsche Zeitung, 19 September 2008.6. See no. 42 and no. 95 of the opinion of the Advocate General Colomer on the Volkswagen
case, delivered on 13 February 2007.7. Landgericht Hannover, judgment of 27 November 2008, ZIP 2009, 666.8. ‘Ungarn peitscht “Lex MOL” durch, setzt auf Zeit’ (‘Hungary pushes through “Lex MOL”
and plays for time’, own translation), Die Presse, 6 October 2007.9. ‘Italy limits “golden share” rules to avoid hefty EU fines’, EUbusiness, 9 March 2012.10. Case C-346/06 Rüffert, ECR 2008, I-1989.11. Case C-319/06, Commission v. Luxembourg, ECR 2008, I-4323. The court’s judgment left
practically no room for interpretation regarding the contested provisions in Luxembourg’sregulation of posted workers and, hence, did not allow for a strategy of contained complianceor require any anticipatory obedience.
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