Balancing social and economic fundamental rights in the EU legal order

Abstract

The EU legal order recognises at its highest level both fundamental social rights/freedoms and economic rights/freedoms. As is well-known, it is in the cases where these have had to be balanced against one another, that profound legal and political difficulties have appeared over the years, feeding into a more general concern about an asymmetry between social and economic values and outcomes in the European integration process. While we need to be careful not to overstate the extent of conflict, it deserves to be reiterated that there remain a number of important ‘social sore spots’ that despite sustained academic and political critique, and despite some adjustments in the Court’s approach, continue to emerge and challenge the EU’s social legitimacy. The EU’s approach towards the right to strike and bargain collectively in relation to the internal market provisions on the free provision of services and establishment, which has not only met with criticism internally but has also been considered at odds with international social rights, remains problematic in spite of the CJEU’s more recent ‘conciliatory’ case law. Moreover, relatively recent (r)evolutions in the case law as regards the freedom to conduct a business have raised important new tensions. In accordance with its brief, this article maps these frictions and, more importantly, considers how the adjudication of these rights could be conducted differently. In this regard, it argues that the most appropriate alternative approach is one not directed at procuring more ‘social’ outcomes as such, but instead one that provides a more constitutionally and democratically legitimate framework of adjudication of fundamental rights generally, and social and economic rights specifically. Indeed, while this paper therefore shares the fundamental ambition of some other thought-provoking approaches proposed recently to provide the European judiciary with an alternative framework for the balancing of social and economic rights, the proposal of this paper is different in the importance it attaches to democracy. Democracy shall be the guiding concern in the proposed framework, not only by ensuring that the extent to which these rights are enforced against the national and European legislative process remains limited to what is necessary, but also in providing the dominant telos that should inform the substantive interpretation of these rights.