A proportionate response to proportionality in the field of collective action

Abstract

The well-known decisions in Viking and Laval sent out a strong message that the economic and social dimensions of the European Union are capable of reconciliation. Yet, for better or worse, the outcome of the cases is seen by many to prioritise the economic interests over those of the social. In Commission v Germany (occupational pensions), Advocate General Trstenjak articulated a more genuine synthesis between the economic and social dimensions of the European Union, relying on the principle of proportionality. Her approach may well have been inspired by German law principles. Drawing on comparative sources, this article considers whether proportionality is the appropriate tool to balance the economic with the social in the context of collective action, and what form that proportionality review might take. This question has become more pressing with the proposed Monti II Regulation which aims to address some of the issues arising from the Viking judgment.

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