The Role of the Court of Justice in EU Labour Law - A case study on the transfer of undertaking directive

The main theme of this dissertation is to seek an answer to the following central research question:  What role does the Court of Justice play in relation to the definition of the normative model with respect to labour law within the European Union? The interest in approaching this issue, the nature of which is rather complex, derives from two distinct premises that permeate EU labour law studies. The first is that labour law was originally conceived with social, emancipatory features. However, when labour law is seen foremost as a labour market instrument, it loses its emancipatory rationale and its ability to pursue the ideal of social justice it was originally intended to achieve. The second premises is that among EU labour scholar there is the widespread perception that the Court of Justice approaches labour law in a purposive manner and contributes to the marginalization of its emancipatory component. The research is divided into two different analytical layers. At first, the case law is approached through the dogmatic lenses of labour law. Then, in order to reach a fuller understanding of how the Court’s reasoning, the dissertation then turned to an additional analytical framework, by focusing on the judicial law-making logics that might characterise its reasoning. The analysis is conducted by means of a series of case studies on the directive on acquired rights on transfer of undertakings. A first case study, conducted in the context of a first analytical layer (that of labour law) showed that the normative model pursued by the Court coincides with an understanding of labour law that seeks to reconcile economic and social progress. A certain degree of convergence between the Court’s approach and EU institutional policymaking emerged. In both cases there has been a sharpening of the economic dimension in the 1990s and in the Eurocrisis years and, only recently, signs of rehabilitation of the emancipatory function. However, it is important to note that in the Court's case law there has not been such a radical compression of the emancipatory component as there has been in EU policymaking, with the exception of a few pronouncements. In light of these findings, the Court can be described as performing the role not to oppose the normative model emerging from institutional policymaking. Then, the dissertation turns to the examination of the Court’s law-making logics. Here, the case studies suggest that it is not possible to identify a clearly dominant decision-making dynamics in the Court’s approach, but that integrationalism, trans-judicial dialogue and intergovernmentalism are the most plausible theories. The findings provided by the exploration of the additional analytical layer on judicial law-making instead suggest that the answer to the central research question should instead be more articulated than the definition emerging when looking at the case law just from the perspective of labour law. The case studies indeed suggest the opportunity to further nuance the characterization of the Court as a policy actor regarding the normative model of labour law. The Court's decision-making appears in fact influenced by a logic of synthesis with respect to the normative claims made by multiple actors, institutional or otherwise, involved in the proceedings. Ultimately, the dissertation demonstrates the importance of broadening the doctrinal and analytical lenses through which the Court's approach to labour law is assessed. The exploration of judicial law-making logics can enrich the perception of the Court's role in relation to labour law, nuancing its characterisation as a purposive policy actor.