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Second working session — The impact
fundamental right to privacy, in part for the procedural reason that the
Council and Commission had failed to consider whether there were any less
restrictive alternatives to achieve the objective of transparency.
Thus, under the ‘old rules-lite’ approach, the review is residual and proce-
dural – rather similar to that undertaken of the subsidiarity principle – but it
is still there. Putting it another way, the Court can create the conditions for a
more reflexive governance, devolving more decisions to the Member States in
which it will interfere only
in extremis.
For many, particularly among trade unions, the ‘old rules-lite’ approach
would not be sufficient. It places too much faith in judges who have not always
shown themselves to be sympathetic to collective claims (
10
). It also fails to
address what many, particularly in Greece and Portugal, see as the uncaring
face of the EU. But it is better than nothing and does place the Court in a more
comfortable position, both horizontally, vis-à-vis the other institutions, and
vertically, with the Member States, as well as guaranteeing that the rule of law
is observed.
However, there is a third possibility, judicial abstinence.
Judicial abstinence
I accept that the Court’s refusal in
Pringle
to apply the Charter to the
Member States acting under the ESM does not augur well for the ‘old rules-
lite’ approach. However, I would argue that the ‘old rules-lite’ approach is
probably better than the judicial abstinence approach which the cases on the
compatibility of labour law reforms with the Charter suggest the Court is cur-
rently adopting.
Judicial abstinence might have its supporters among those who have al-
ways distrusted the Court, particularly its capacity to deliver social reforms. It
might also be supported by those who argue specifically that the Court lacks
legitimacy to rule on social matters.
(
10
) See e.g. the controversy surrounding the decision in Case C-438/05
Viking
[2007] ECR
I-10779 and Case C-341/05
Laval un Partneri
[2007] ECR I-11767. However, these cases
raised profound questions as to the nature of the single market and who is the beneficiary.
See further the Monti report: ‘A new strategy for the single market’, May 2010, http://
ec.europa.eu/internal_market/strategy/docs/monti_report_final_10_05_2010_en.pdf,
especially paragraph 68 et seq.
