The rise or demise of 'Social Europe' - A case law study in the context of worker protection
Abstract: The European Union is facing several challenges of constitutional, democratic, political and social nature. One of these challenges is the EU’s ‘social deficit’. The European Commission has listened to the critique and committed itself to reorient the European integration project towards a ‘Social Europe’. The addition of social provisions to primary law through the Treaty of Lisbon, a promised revision of the Posted Workers Directive and the introduction of a European Pillar of Social Rights are the Commission’s primary solutions to ensure that the Union moves beyond economic integration and tackles social concerns, promotes social values and protects social rights. However, due to the Court of Justice’s interpretative power and prominent role in the institutional structure of the EU, it is crucial that the Court adjudicate cases in a socially sensitive manner if the EU is going to be successful in its endeavour to reorient the European integration project towards ‘Social Europe’. This thesis is primarily based on a study of benchmark cases in the ECJ’s jurisprudence, both before and after the entry into force of the Lisbon Treaty. By conducting a case law study focused on cases in which worker protection conflicts with the interests of the European integration project, it has been possible to analyse the Court’s approach in such cases and to ascertain whether the Court’s adjudication reflects a commitment towards the realisation of Social Europe. Conclusively, the case law study show that the Court of Justice often decide cases in favour of economic interests even if this tendency has slightly shifted due to the introduction of social provisions in the Lisbon Treaty. Whether the change of approach should be interpreted as reflecting a commitment towards the realisation of ‘Social Europe’ is difficult to answer. The Court does seem to take social concerns into account to a greater extent in the post-Lisbon era but one may argue that this is done on a merely rhetorical level. The Court still applies a method of adjudication that was established in the pre-Lisbon era, which views worker protection as a restriction that needs to be justified rather than an interest at equal footing with economic interests. The use of the freedom to conduct business, protected by the Charter of Fundamental Rights of the EU, to safeguard the contractual freedom of employers is another development that makes the ECJ’s potential commitment to ‘Social Europe’ even more questionable.
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