Market Freedoms and Social Dimensions of the Common Market - Impulses from the Constitution? (Grundfreiheiten und soziale Dimensionen des Binnenmarktes – die Verfassung als Impuls?)

Abstract

This article looks at the impact of human rights on other areas of law and the possible impact of a human rights codification in the EC in the context of the Draft Constitution. It examines how non-economic considerations, such as the social dimension, filtered into the body of EC law. First, they are rarely primary aims or competences of regulating the Common Market. Secondly, the article looks at the 'social flanking' of economic rules, especially in the context of the free movement of workers. Thirdly, it points out that market freedoms may have social implications in specific areas, such as health care. Fourthly, it describes how social dimensions can be invoked when interpreting the scope and in order to justify restrictions of market freedoms. Fifth, it notes that in recent case-law the European Court of Justice has given Union citizenship a social connotation by enforcing equal access of Union citizens to social benefits. The article then looks at social dimensions in EC competition law which safeguard the 'level playing field' upon which the market freedoms operate.

Against this backdrop, the final section of the article analyses the expected influence of a binding EU Charter of Fundamental Rights on the EU legal order. It discusses possible changes in the substance of human rights, with special regard to social rights, as well as in the application and interpretation of EC law in general and its normative hierarchies in particular. It also considers enforcement procedures by individuals and by the EU against Member States. The article goes on to weigh the danger that codification could encroach upon the competencies of Member States against the potential benefits of a more coherent legal system. It concludes by asking whether codification of human rights is likely to encourage more public engagement with the EU.

Keywords: human rights, European Union, market freedoms, economic freedoms, competition law

JEL Classification: K10, K20, K22, K30, K34