Legislator and collective bargaining "substitution effect" in the application of the principle of proportionality by the ECJ

Abstract

The article analyzes the empirical foundations of the principle of necessity developed by the ECJ, when assimilating labour standards to intra-Community regulatory barriers. The author puts into question the legitimacy and capacity of the Court to substitute both legislator and social partners in the exercise of their collective autonomy. Criticism to the application of the principle of proportionality delves into this area of Law, as it is difficult to objectively determine the level of effectiveness of socioeconomic policies in achieving their mediate purposes, altogether with an assessment of the burden they impose on market freedoms. These strict limits to the exercise of state power regulation contrast sharply with the lax discretion that national jurisdiction provides the legislator, as far as compliance with standards international human rights is concerned.