Social Rights and Market Freedom in the European Constitution: A Re-Appraisal

Building a common market while preserving the legitimate concerns for different social models at national level has always been one of the main challenges of the European project. The aim of this article is to verify how the normative criteria, which preside over such a delicate balance between constructing a common market and preserving legitimate differences in the national welfare systems, have changed over time. It is submitted that these criteria have in fact significantly changed, with a progressive shift from the upward harmonization paradigm to regulatory competition between systems. The decline of harmonization, as the main tool for governing the differences between national social systems, has in fact gradually left its place to a mix of new regulatory techniques, which were enriched during the 1990s and lastly rationalized by the Lisbon Treaty. Moreover, in the latest phase that follows the 2004 enlargement, the regulatory competition – conveyed by means of a very liberal interpretation of the freedom to provide services – has come to occupy some of the most protected areas of national labour law. These trends are likely to generate difficult tensions between the legitimate demands of preservation of national social models and the demands of enlarging and deepening European integration. A reinforced coordination, via hard law, is needed, and possibly a further re-shaping and re-launching of differentiated harmonization techniques, along with a solid framework of fundamental social rights and principles enshrined in the body of the new Treaties. It is submitted that if we want to avoid the risk of crisis of the European integration process this way of coping with the challenges of diversity has to go forward to looking for a virtuous balance between market freedom and social rights in the European Constitution.