Abstract and Keywords
This concluding chapter summarizes the main findings of the book. It is argued that the Court's case law institutionalizes tensions between the integrationist objectives of the EU and the economic and social objectives of national regulation in the labour law field which need not exist. The interventions of the political institutions appear less hostile to diversity; but they tend systematically to privilege the economic over the social. It is argued that a clear commitment to the social rationale and a reorientation of the Lisbon Strategy to would contribute towards the legitimacy of the European polity.
There are a number of objectives which EU intervention in domestic labour law might be able to serve. In this book, I have arranged these into three broad categories—the integrationist, economic, and social rationales. These three rationales do not point clearly towards particular policy prescriptions. I have argued that a close examination of where a commitment to each of the rationales may or must lead, coupled with a close examination of the relationship between the three rationales, helps to explains the chequered history of EU labour law, and also, perhaps more importantly, enables one to point towards ways forward for the EU in this contentious field.
The focus of this book has been on the integrationist rationale. There are several reasons for this: first, because the integrationist rationale has not been sufficiently explored in the existing labour law literature; second, because the dictates of market integration create the framework within which the economic and social objectives of labour law may be pursued, at both the EU and the domestic level; and third, because it is not at all obvious whether the establishment of a single market in Europe calls for harmonization of labour law regimes within the market area, or for other forms of intervention.
The Court of Justice's interpretation of the dictates of the market-making endeavour has, in my view, been rather simplistic. It has suggested that disparities between national laws are problematic; either because they constitute barriers to free movement or distortions of competition. However, with reference to the legitimate objectives of domestic labour law, the Court has tended to go on to hold that domestic labour law rules are justified. This approach succeeds in leaving some space for national autonomy and experimentation, but it institutionalizes a tension between the integrationist objectives of the EU and the economic and social objectives pursued by national regulation in the labour law field, which, in my view, need not exist.
There is an important difference between the way in which the Court and the political institutions conceptualize the integrationist rationale. In the labour law field, the political institutions have not sought to harmonize the laws of the Member States, but have instead intervened in a range of ways which afford a degree of autonomy to the Member States (and indeed the social partners). If the political institutions shared the conception of the integrationist rationale adopted by the Court, they would at least have attempted to act so as to eliminate those obstacles to (p.162) the establishment and functioning of the market which could not, because of the existence of justifications for national labour law rules, be eliminated by the negative integration case law of the Court. They have not done so. Thus, one is faced with two contrasting visions of the integrationist rationale, one hostile and the other sympathetic to diversity.1
Both of these conceptions are plausible. It becomes possible to choose between these two rival conceptions of the integrationist rationale by considering the economic and social meta-objectives of integration, and the arguments from legitimacy which operate so as to make a case for the maintenance of local autonomy in accordance with the principles of subsidiarity and proportionality.
Acceptance of the view that integration is not pursued for its own sake, but in order to further the economic and social meta-objectives of the EU and its Member States, leads one to view national regulation in the labour law field, which may, after all, be enacted with these same objectives in mind, with sympathy rather than hostility. This sympathy is enhanced when one reflects on the relative legitimacy of labour law regulation, enacted on economic or social grounds, at national and EU level. Thus, my conclusion is that the integrationist rationale need not, and indeed should not, be conceptualized so that mere disparities between national labour law rules are identified as problematic.
If this analysis of the integrationist rationale is accepted, it creates an enhanced space for national regulation in the labour law field. The requirement that disparities between national labour law regimes be eliminated simply ceases to exist. Member States are instead afforded considerable freedom to intervene in pursuit of their chosen objectives. In this new context, the role of the EU is much changed. No longer does it work towards the elimination of disparities between national regimes, or view national regimes with suspicion simply on the grounds that they are divergent. Instead, it intervenes in a range of ways to ensure that the market in Europe is able to function properly, and to the extent that its interventions are compatible with the principles of subsidiarity and proportionality, to further economic and social objectives. As a result of the ever-increasing interdependence of the various national economies, in part precipitated by the market-building endeavour, the EU has a significant role to play, and the impact of the principle of subsidiarity is reduced.
(p.163) All too often, however, the political institutions have not succeeded in providing convincing arguments (based either on the integrationist, the economic, or the social rationale) for EU intervention. As chapter 5 above illustrates, it is rather difficult to identify convincing rationales for many of the interventions of the EU—especially for many of the flexible interventions of recent years. The integrationist arguments for intervention may, as in the case of the Working Time Directive, be incoherent. Economic and social arguments are combined in ways which, despite the rhetoric, systematically privilege the former over the latter.
I contend that convincing arguments for EU intervention do exist. These arguments rely on a precise identification of the rationale(s) for, or the objective(s) of, EU intervention; and on steps being taken to ensure that the institutions’ method or modality of intervention is chosen in such a way as to ensure a significant contribution towards the realization of the objective in question.
If the integrationist rationale is not conceptualized so as to require the elimination of disparities between national labour law regimes, the harmonization of such regimes is not required. My preferred conceptions of the integrationist rationale do, nevertheless, call for the imposition of certain constraints on national policy choices in the labour law field. The institutions act so as to eliminate barriers to free movement. Under this head, they ensure that national labour law rules do not prevent access to markets, and that they do not discriminate against imported factors of production. They have a role to play in preventing distortions of competition. Under this head, the institutions may act against States whose standards are ‘unacceptably low’, and may also act so as to ensure that the collective quest for competitive advantage does not lead to deregulation in the labour law field. And they act to ensure that EMU operates successfully. When acting under the integrationist rationale, the institutions must ensure that they take heed of the principle of proportionality, and that they do not infringe national autonomy further than is necessary for the realization of their objectives.
The institutions are also able to act under the economic and the social rationales. Once integrationist arguments for the harmonization of the laws of the Member States are rejected, the relationship between the economic and the social assumes a much greater significance. The Treaty tells us little about the nature of this relationship. The Third Way rhetoric which has come to dominate the Lisbon Strategy may be soothing on the surface, but it too tells us little about the way in which the inevitable conflicts between the economic and the social are to be resolved. The result is that the European project lacks a normative compass, and that the EU lacks clear authority to intervene to pursue particular economic and social goals. Both legal and political processes have a role to play in building the consensus necessary to make a stronger commitment to particular economic and social objectives. If Europe is not to lose itself,2 and if the social is not to be subsumed by the (p.164) economic, it is important that Europe overcomes its legacy of ‘ambivalence of the social’,3 and makes a clear commitment to the social rationale. A clear commitment to the social rationale would affect the European project in a number of ways. It would profoundly affect the nature of the market-building endeavour, for example allowing the EU to act with more confidence in ruling out competition based on unacceptably low standards, and in resisting the pressures towards competitive deregulation. It would enable a reorientation of the Lisbon Strategy so as to give a greater priority to the realization of social objectives. And it would have a significant effect on the operation of the principle of proportionality, enabling a greater value to be ascribed to the social goals of both the EU and its Member States.
In the aftermath of French and Dutch referenda rejecting the Treaty establishing a Constitution for Europe, the future of the EU is uncertain. The legitimacy of the European polity can no longer be taken for granted. It is vital that the EU regains the trust of its people. A clear commitment to the social rationale in the labour law field would contribute towards this goal.
(1) See also Dougan's approach. ‘The Single Market should no longer be conceived purely as an exercise in economic integration. The ideal of free movement across a regulatory level playing-field has been compromised by the Community's commitment to pursue higher standards of social protection within the fabric of this very process of economic integration, and thus by the Treaty's need to furnish a legal infrastructure capable of accommodating differences in the capacity and willingness of the various Member States to agree a common welfare agenda. Against such a background, certain variations in national law, and the consequent possibility of certain persistent barriers to unrestricted free movement, should not be construed as inherently incompatible with the existence of a functioning Single Market.’ M Dougan, ‘Vive la Différence? Exploring the Legal Framework for Reflexive Harmonization within the Single European Market’, in R Miller and P Zumbansen (eds), Annual of German and European Law, Volume 1 (2003) (Berghahn, New York 2004) 113, 160.
(2) M Maduro, ‘Europe's Social Self: “The Sickness Unto Death”‘, in J Shaw (ed), Social Law and Policy in an Evolving European Union (Hart, Oxford 2000) 325.
(3) C Joerges, ‘On disregard for history in the Convention Process’ (2006) 12 European Law Journal 2, 3.