The EU Constitution of Social Governance in an Economic Crisis in Defence of a Transnational Dimension to Social Europe
| Published date | 01 June 2013 |
| DOI | 10.1177/1023263X1302000203 |
| Author | Dagmar Schiek |
| Date | 01 June 2013 |
| Subject Matter | Article |
20 MJ 2 (2013) 185
THE EU CONSTITUTION OF SOCIAL
GOVERNANCE IN AN ECONOMIC CRISIS:
IN DEFENCE OF A TRANSNATIONAL
DIMENSION TO SOCIAL EUROPE
D S *
ABSTRACT
Conventional wisdom has it that the EU is unable to promote viable social integration,
which contrasts with its commitments to improving working and living conditions and
to social values and goals such as solidarity, social protection and social inclusion. is
article challenges two di erent standpoints: on the one hand, competitive neoliberalism
demands that the EU focuses on economic integration through legally binding internal
market and competition rules even if Member States can only maintain a limited
commitment to social inclusion, while authors defending the social models unique to the
continent of Europe demand that the EU rescinds some of its established legal principles
in order to make breathing space for Member States to maintain mark et correcting social
policies. Both positions convene that there should be no genuine social policy at EU level.
is article uses scenarios of widely discussed r ulings by the Court of Justice to illustrate
that legally enforceable economic integration would prevent most Member States from
achieving sustainable health services, labour relation s and free university education on
the basis of national closure. Sinc e the EU has limited legislative competences to create EU
level institutions to balance inequalities, it derives a Constitution of Social Governance
from the EU’s values, proposing that the Court of Justic e develops its jurisprudence into an
instrument for challeng ing European disunion induced by new EU economic governance.
Keywords: cross border industrial action; EU social constitutionalism; judicial
competences; health f unds; study fees
* Chair in EU Law, Jean Monnet ad personam Chair in EU Law and Policy, Director of Centre of
European Law and L egal Studies, Universit y of Leeds.
Dagmar Schiek
186 20 M J 2 (2013)
§1. IN TROD UC TION
An enigma emerged from the Treaty of Lisbon: whi le expanding the values u nderpinning
an EU social dimension, it did not create additional EU legislative competences for
pursuing these aims. is article a rgues that a Constitution of Social Governance
can close this gap. Going be yond received wisdom according to which the i nternal
market and economic policy on the one hand, and EU social integration on the other
are forever decoupled, it suggests that EU law and policy accept a scope of manoeuvre
for transnational social governance, not only by the EU’s and Member States’ public
institutions, but al so by the emerging European society.
Until 2009, the Court of Justice of the European Union appeared to be t he main
stumbling block for social Europe. In academic writing, cases such as Wat ts ,1 Viking2
and Laval3 had been viewed as symbols of the Cour t’s increased threat to national welfa re
states4 and as indicating a neo -liberal turn.5 e concept of an EU Constitution of Socia l
Governanc e o ers a n alternative for the EU judiciary to dissolve t he apparent stalemate
between the EU’s 2009 soci al values and its old case law.
Since 2010, EU currency crisis management has demonstrated that coordination
by target setting i n new modes of ‘economic governance’ can be at least as e cient as
EU-level legislation and case law in decreasing minimum wages , reducing employment
protection and lowering levels of s ocial (security) bene ts.6 It is thus necessary to
consider whether a Constitution of Social Governance o ers any potential to achieve a
balance agai nst this austerity driven governmental ity at EU level.
e argu ment proceeds as follows. Since the Constitut ion of Social Governance seeks
to close a gap between the EU’s renewed socio-economic values and its competence
regime, these t wo elements will be elaborated rst. e hypothesis that t here is a gap
between those two is actually contested by those who demand re-nationali zation
of social policy and labour rights. It will thus have to be defended. is then leads to
the conceptuali zation of the EU Constitution of Social Governance. e practical
consequences of the new concept wil l be shortly illust rated in two dimensions: as a
1 Case C-438/05 International Transport Workers Fe deration (Viking) [2007] ECR I-10779.
2 Case C-341/05 Laval [2007] ECR I-11767.
3 Case C-372/04 Watt s [2006] ECR I- 04325.
4 For a recent overview w ith numerous references, se e S. Greer and T. Sokol, ‘Rules for Rig hts: European
Law, Health Care a nd Social Citize nship’, 19 ELJ 4 (2013), on line rst.
5 S. Deakin, ‘ e L isbon Treaty, the Viki ng and Laval Judg ments and the Fina ncial Crisis: In S earch
of New Foundations for Eu rope’s Social Market Economy’, in N. Bruun e t al., e Lisbon Treaty and
Social Europe (Hart, Oxford 2012), p.19; C. Joerges and F. Rödl , ‘Informal Politics , Formalised law and
the “Socia l De cit” of European Integration: Re ections a er the Judgments of t he ECJ in Viking and
Laval’, 15 ELJ 1 (2009), p.1–19.
6 For employment rights se e S. Clauwaert and I . Schömann, e Crisi s and National Labour L aw Reforms:
A Mapping Exerci se (ETUI, Brussels 2012); for social (security) bene ts see P. Pochet and C. Degr yse,
‘Monetary Union and t he stakes for Democrac y and Social Policy ’, 19 Trans fe r 2 (2013), p.103–116.
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