120
Catherine Barnard
Deuxième séance de travail — Les retombées
EU states in difficulty also suggest judicial sensitivity to the changing political
and economic situation (
7
). So what might this new reality look like?
Old rules
One possibility is to continue applying the old rules, perhaps wrapped in
some rhetoric recognising the novelty of the situation, to the new realities. In
other words, do as the Court did in
Pupino
(
8
), borrow principles from the old
order and apply them as far as possible to the new. This would mean, for exam-
ple, hearing challenges to, say, the reforms of national labour law undertaken
as part of the conditionality for bail-out funds in order to check their compat-
ibility with the substantive provisions of the Charter. Since such a substantive
review would involve second-guessing the EU institutions and/the troika, as
well as reviewing the actions of Member States in an area where the EU has
little or no competence, it is understandable why this approach might not be
palatable to the Court.
‘Old rules-lite’
So, another possibility would be to apply the ‘old rules-lite’. In the scenario
outlined above, this would mean, for example, hearing challenges to the re-
forms of national labour law required by the troika. However, the difference
would be that the Court would not (and should not) attempt to undertake a
substantive review of the reforms. Instead, it would simply check whether the
state has involved the social partners or other relevant bodies, like the ILO, in
the decision-making process. In other words, a substantive review is replaced
by a more procedural one.
There is some evidence that the Court was adopting a procedural approach
in
Volker und Markus Schecke
(
9
) where it struck down a regulation on
agricultural funds which required that the beneficiaries of agricultural funds
had to have their names published on the web together with the amount they
received. The Court said that the rules were incompatible with an individual’s
(
7
) Case C-128/12
Sindicato dos Bancários do Norte
and Others,
order of 7 March 2013. See
also the reference in Case C-264/12
Sindicato Nacional dos Profissionais de Seguros e Afins
,
reference lodged 29 May 2012. See also Case C-434/11
Corpul Național al Polițiștilor
, order
of 14 December 2011.
(
8
) Case C-105/03 [2005] ECR I-5285.
(
9
) Joined Cases C-92/09 and C-93/09
Volker und Markus Schecke and Eifert
[2010] ECR
I-11063.
