Economic Constitutionalism and the 'European Social Model': Can European Law Cope with the Deepening Tensions between Economic and Social Integration after the Financial Crisis

Abstract

This chapter argues that the one-sidedness of the integration process, its promotion of ever deeper economic integration, has contributed to the legitimacy crisis with which the EU is confronted at present. This crisis has, in the course of the efforts to tame the financial crisis through Europe’s new modes of economic governance, led to a de-legalisation of European rule and thereby affected the “law as such”. The argument starts with a re-construction of the tensions between “the economic” and “the social” at national level, identifying two competing constitutional traditions, namely, that of economic constitutionalism and that of the welfare state. It proceeds by giving a critical account of the “crisis law” which has transformed the European project profoundly. Finally, the chapter discusses the possible “return of the social” in three projects of different kinds. One is the “European Pillar of Social Rights” as “solemnly proclaimed by the European Parliament, the Council and the Commission” at the Social Summit in Gothenburg, Sweden, on 17 November 2017. The second is a conflict constellation of exemplary importance, namely, the Revision of the Posted Workers Directive, which has had to respond to the discrepancies between social justice within consolidated democracies and social justice between the Member States of the Union. The third is a political effort to contribute to European solidarity through a European Employment Insurance.