Balancing Workers’ Social Rights with Employers’ Commercial Interests in the EU: A Proposal for a More Reflective Proportionality Test in Line with the Charter

In the seminal cases Viking Line and Laval, the Court of Justice acknowledged workers’ social rights to strike and to undertake collective action. However, when it came to proportionality analysis, the Court either did not apply all tenets of the test (suitability, necessity, stricto sensu) as in Viking Line, or stopped at justification stage, as in Laval, in effect giving priority to the freedom to provide services and the freedom of establishment.

To challenge this seemingly well-established hierarchy between social rights and economic freedoms in EU law constructed by the application of the ‘old’ proportionality test, this paper will propose to restructure it in the light of Art 52(1) of the Charter. To do so, it will outline a proposal for the reflective proportionality test, which requires the Court to adopt a more systematic approach to balancing workers’ social rights with employers’ commercial interests, taking into account a range of factors, together with the growing importance of the constitutional value of solidarity in the EU.