«Game of thrones» between «community judges»: «new battles» for the «last legal word» in social and labour matters

Abstract

The classic conflict between social justice and legal certainty has, in recent years, a special «drama» in the working relationships of Spain, as a result of the expansive use that the national «lower level» courts are making the issue preliminary ruling ex article 267 of the Treaty on the Functioning of the European Union. The enormous innovative and disruptive potential of the judgments of the European Court of Justice, to a large extent have been sacralized and held as infallible by national judges, despite making mistakes, and sometimes huge mistake, added to the lack of intervention legislative to shape our law to their mandates, is making every judicial level create their own reading of community judgment, with disparate options between each one of them. Issues such as De Diego Porras, Montero Mateos, in the scope of temporary hiring, or those that gave rise to the Somoza Hermo case, for the transmission of company, this would be evident. No one doubts the benefits of this new mode of legal production, which is based on the «dialogue with multiple voices», for the progress of labor law, in the absence of due legislative intervention, increasingly abstentionist and fearful; but the vices it creates are not doubtful either, in terms of exaltation of interpretive diversity, therefore the hermeneutic chaos and legal insecurity. Consequently, after a careful analysis of the current situation in this area, the author of this analysis calls for a more responsible management –prudent– of the great legal power that the law of the European Union places in the hands of each judge, not only the Supreme Court and of the Constitutional Court, in order to avoid that conspicuous «dialogue with multiple voices» derive in a continuous «game of thrones» between community judges tokens by the «last word», in a never-ending, non-virtuous interpretative circle.