Free movement, equal treatment and workers' rights: can the European Union solve its trilemma of fundamental principles?

ABSTRACT This article analyses the trilemma the EU is facing concerning three fundamental principles on which the Community rests: free movement of services and labour; non‐discrimination and equal treatment, and the rights of association and industrial action. With rising cross‐border flows of services and (posted) labour after the Eastward enlargement, the conflict between these rights has triggered industrial disputes and judicial strife. In the view of the European Court of Justice (ECJ), highlighted in the Laval Quartet, some principles are more fundamental than others. Tracing the ‘dual track’ along which European integration has evolved, whereby supranational market integration has been combined with national semi‐sovereignty in industrial relations and social policies, our claim is that the supremacy of free movement over basic social rights implied by the ECJ judgments is leading Europe in a politically and socially unsustainable direction. To prevent erosion of the European Social Models and of popular support for European integration, the politicians have to reinsert themselves into the governance of the European project. A pertinent start would be to ensure that the rising mass of cross‐border service workers in Europe become subject to the same rights and standards as their fellow workers in the emerging pan‐European labour market.