"The Court of Justice as a policy actor in the development of the EC labour law regime: The case of the Acquired Rights Directive"

Hunt, Jo. (1997) "The Court of Justice as a policy actor in the development of the EC labour law regime: The case of the Acquired Rights Directive". In: UNSPECIFIED, Seattle, WA. (Unpublished)

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Abstract

Increasingly, and beyond the realm of legal scholarship, the important contribution of the European Court of Justice to the process of European integration is being recognised. In such analyses the Court takes its position alongside the other political institutions involved in the processes of policy making which occur within the structural environment of the European Community. Through its activities, the Court may be seen as having had a significant influence both on substantive characteristics of policy, and also upon this structural environment within which policy is made, as with those decisions which have endorsed a Community competence over matters previously regulated at the national level, and those which have concerned the structuring of the Community-level inter-institutional balance in the law and policy making process. This paper takes as its main task an account of the construction of a Community response to the regulation of contracting out practices occurring within the member states, in the context of this developing employment policy. The Court has been central to this task, and the way in which it functions within a web of interactions between a range of actors at multiple levels will be revealed. Certain aspects of the Acquired Rights Directive, as implemented by the member states, applied by their national courts, and especially as interpreted by the Court of Justice could be seen as conflicting with the thrust of the employment policy developing within the political organs of the Community. Following an abortive attempt by the Community to legislate in mitigation of the more politically uncomfortable aspects of the Court's jurisprudence, recent judgments by the Court issued in the context of the 177 procedure have witnessed a subtle shift in the Court's approach to contracting out situations, to one more in accord with the goals of the emerging employment policy. In drawing attention to this interrelationship of different institutions involved in policy development, the following account is broadly inspired by the orientations of the historical institutionalist school. Such themes and perspectives will be outlined, following a review of the various approaches which can be found in the literature on the role of the Court of Justice in the policy process.

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