Political Conflict on the CJEU Bench? Judicial Preferences on National Collective Labour Law

As is well known, research on the preferences of judges on the European Court of Justice is difficult, as rules of procedure do not allow for the publication of dissenting or concurring opinions. Nevertheless, several attempts have been made, drawing mainly on procedural rules such as the allocation of cases to rapporteurs and the composition of chambers. The dimension of political conflict that studies have focussed has almost exclusively been the transfer of competences to the European level, i.e. the “more Europe/less Europe” dimension. However, there are multiple reasons to expect that this is not the most salient dimension of political conflict among CJEU judges. All empirical studies of judicial behaviour have highlighted a general “pro-European” preference among the court. Sociological studies of CJEU recruitment and initiation rituals for new judges have supported this. The proposed paper therefore employs similar methodologies to existing studies but focusses on a different dependent variable: the propensity of judges to rule against national collective labour regulations (in favour of free movement), in cases that touch on issues such as the transfer of undertakings, the posting of workers, corporate governance, mass redundancies, labour relations or the right to strike. While the recruitment and initiation process favours pro-European judges, no mechanism exists that would favour either market-liberal or social-democratic preferences of judges. Such cases therefore offer a more fruitful field to study political conflict on the CJEU bench.