The effects of neoliberalism in European labour law: The meaning of labour and the need for a different constitutional compromise

Abstract

This article aims to identify continuity between the main neoliberal schools that had a role in the making the European legal order and the conception of labour and 'work activity' embedded in the European legal framework. The consequences of this contiguity are also discussed. In particular, the concepts of 'working activity' and 'undertaking' elaborated by the Court of Justice are used as a driver of the analysis to detect signs of these influences. A two-phase approach is adopted to develop the research. First, a review is undertaken of relevant ECJ judgments that testify to the Court's position on the topics discussed in the article. Second, the cultural common ground between the interpretation of the legal framework found in case law and specific neoliberal theories is highlighted. The meta-principles that are identified through the analysis are then compared with those derived from the rights recognised in the constitutions proclaimed in the second half of the 20th century to show the significant discontinuity that endangers the very existence of the European Union as a political project and has destabilised the constitutional order of many European countries. As the founding principles of the EU legal order kickstarted a containment of labour and social rights, the call for change at the roots of European constitutional law is becoming increasingly urgent. The formal proclamation of the Charters of Fundamental Rights at the European level (not least because of the way in which rights are recognised) has not in itself proved to be capable per se of transcending the original matrix of the European order.