The article provides an analysis of the Laval Judgment in light of Habermas’ theory of discursive practice and compares the European social model and the Swedish system of collective agreements in light of this theory. In this context, the article argues, the comprehensive dismissal by the European Court of the carefully constructed and balanced Swedish system of social dialogue between management and labour is truly the most disturbing aspect of this controversial judgment. For all the supposed importance placed on discursive practices and social dialogue for the European social model, when confronted with the Swedish system of social dialogue, the Court retreats in the familiar territory of hard law and statutory obligations. In doing so, it wilfully misunderstands the function of collective bargaining, by effectively decoupling its process from its function, and leaving social dialogue with the hollow role of a deliberative practice devoid of any finality.

Published online: 01 February 2013