European Papers (Oct 2018)
Aim and Duty, Sword and Shield: Analysing the Cause and Effects of the Malleability of "Social Integration" in EU Law
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2018 3(2), 693-732 | Article | (Table of Contents) I. Introduction. - II. Explaining the paradox: The historical limitations on European "social integration" as a counter-balance to the internal market. - II.1. The traditional European/national divide in the economic/social dichotomy: social progress as a by-product of economic integration. - II.2. Expanding the market freedoms into the domestic social space. - II.3. Unfit for purpose: the structural prioritisation of free movement and the fallacy of the economic/social dichotomy. - II.4. Contributing to a legitimacy deficit? - III. "Social Europe": maintaining the artificial boundaries of social and economic integration. - III.1. The emergence and evolution of social integration as a (constrained) independent Union aim. - III.2. Limits on social integration resulting from the economic/social dichotomy. - IV. Free movement as a sword to access the domestic social space: European social integration via the negative processes of the internal market. - V. Restricting free movement rights: "social integration" as an individual duty and Court of Justice-endorsed Member State shield. - V.1. Scaling back on social integration via free movement and concretising social integration as an individual duty. - V.2. Undermining the Union's social aims. - V.3. Sacrificing equal treatment in vain: the ongoing question mark over European integration. - VI. Legitimising the European social space through an holistic approach to the Treaties. - VI.1. The post-Lisbon call for an holistic approach to economic and social integration. - VI.2. The emergence of a new adjudicative approach. - VII. Conclusion. | (Abstract) Social integration is often depicted as a means of enhancing the Union's legitimacy. Most recently, a reinvigorated "social Europe" has been back on the agenda following the United Kingdom's Brexit vote. And yet, ironically, the EU citizenry often appears resistant to the very mechanisms that seek to make the Union about its people rather than the market. To explore this phenomenon, this Article conducts a much-need historical analysis of the concept of "social integration" within the EU legal order. The investigation identifies the operation of an economic/social dichotomy operating across European/national dividing lines, established by the Rome Treaty. As the market freedoms expanded, coming into ever-more frequent contact with domestic social policies, this dichotomy ultimately proved to be a myth. And yet, the legacy of the economic/social dichotomy has been not only to leave national social policymaking structurally disadvantaged when it clashes with the market freedoms but to constrain the Union's capacity to offer social integration as a counter-balance to the deregulatory effects of the internal market at the supranational-level: European social policymaking is conceptualised as further interference with the traditionally national social sphere. Efforts to pursue social integration, instead, via the mechanisms of the internal market through Union citizenship have also been inherently limited by its market origins. Indeed, as the political winds have changed, "social integration" has been converted from a Union "aim" into an individual duty of economic activity in that context. This undermines the Union's contemporary social aims, whilst doing little to address perceived Euroscepticism. Instead, a further model of social integration is needed; one which sees domestic and Union activities as jointly contributing to a shared constitutional social space and which is realised through a new method of adjudication that structurally recognises the significance of social goals in the present-day Union.
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