Who Goes to Court? Social Partners and the Asymmetry of EU Law

The system by which states balance the interests of employers and employees is a defining feature of national economies. Long primarily a reflection of national conflict and compromise between capital and labour, this balance has become increasingly affected by the growing reach of EU law. The dominant narrative is that EU law asymmetrically advantages employer interests over those of trade unions and puts national regulations protecting labour under pressure. This situation is assumed to be particularly prominent in social market economies, which accord trade unions an important role in the political economy. However, there is little systematic knowledge of which employers actually make use of the opportunities offered by EU law. This paper pursues this question, and in particular asks to what extent peak level employer organizations engage in EU law litigation. Such peak level organizations are crucial since they have both the expertise and resources to advance their interests by pursuing EU law litigation to achieve lasting change. At the same time, following the literature on comparative capitalism, peak employer organizations in social market economies should have an interest in protecting the institutional complementarities of this variety of capitalism.  
The paper investigates this puzzle by analyzing EU law litigation initiated by employers in Germany and Sweden. It will embed the analysis of legal action in the broader national political debates about labour law in order to identify not only the actors that put pressure on social market economies, but also their motivation and their strategies.