The Principle of Proportionality in the Viking and Laval Cases: An appropriate standard of judicial review?
Bibliographic record
Abstract
The article analyses the application of the proportionality principle in the Viking and Laval judgments. It argues that one of the main reasons why the outcome of these two eminent cases became so controversial was because of the way in which the Court applied the proportionality principle. The paper will first give an overview about the application and elements of the proportionality test in EC internal market law; it will then raise two related issues, namely to what extent the so-called ‘Prinzip der praktischen Konkordanz’ is relevant in the existing case law and whether there is a need for a differentiated approach under the proportionality test in horizontal situations. The article urges the ECJ to develop a different standard of judicial review for trade union action. The paper will draw on some selective national examples to show that where a proportionality principle is applied in industrial action cases, both the elements and the substance of the test are different from those applied by the Court of Justice in these two cases. The last part of the paper will highlight the differences between the proportionality review in the two cases, including the importance of the reference to the minimum harmonisation clause of the Posted Workers Directive in the Laval judgement. Finally, the article invites the reader to pay attention to the broader constitutional implications of judgement in the field of social policy, i.e. to what extent the cases generated coordination between the Member States at the intergovernmental level.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.097 | 0.220 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.002 | 0.002 |
| Bibliometrics | 0.002 | 0.002 |
| Science and technology studies | 0.007 | 0.032 |
| Scholarly communication | 0.020 | 0.022 |
| Open science | 0.006 | 0.007 |
| Research integrity | 0.022 | 0.020 |
| Insufficient payload (model declined to judge) | 0.002 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".