The EU Constitution of Social Governance in an Economic Crisis: In Defence of a Transnational Dimension to Social Europe

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. This article challenges two different 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. On the other hand, 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 market correcting social policies. Both positions convene that there should be no genuine social policy at EU level. This article uses scenarios of widely discussed rulings by the Court of Justice to illustrate that legally enforceable economic integration would prevent most Member States from achieving sustainable health services, labour relations and free university education on the basis of national closure. Thus, genuine EU level social policy is necessary to balance the market integration and monetary union rationale sufficiently to do justice to the EU's normative commitment to social justice, social protection, social inclusion and solidarity. However, despite these normative commitments the EU has only limited legislative competences to create EU level institutions to establish such policies. To overcome this dilemma, we propose a Constitution of Social Governance, derived from the EU’s values, which enables transnational social actors to fill the competence void. Potential consequences of the Constitution of Social Governance are discussed in two respects. First, it can be used to challenge restrictive case law by Court of Justice, which limits, for example, the scope of collective bargaining across borders in favour of freedom of establishment and freedom to provide services. Secondly, the Constitution of Social Governance can be used to challenge the direction of so called new economic governance. Ultimately, the Court should develop its jurisprudence into an instrument for challenging European disunion induced by new EU economic governance.

Keywords: cross border industrial action, EU social constitutionalism, judicial competences, health funds, study fees