Social Blind Spots and Monocular Policy Making: The ECJ’s Migrant Worker Model

Abstract

Despite the development of Union citizenship it is still work that acts as the key to Community rights. The right to equal treatment of workers on the grounds of nationality is accorded greater weight not only than that of Union citizens, but also than rights regarding other discrimination grounds, as all distinctions are eclipsed by that between workers and non-workers. Economic categorization is a process precedent to and isolated from social objectives of the Union, and its predominance suggests constitutional asymmetry – the relegation of social rights to a position beneath and after the guarantee of economic freedoms. It fails to deal with issues of intersectional discrimination where nationality is not the only factor. By patching together a set of generally applicable criteria to define migrant workers, the current regime both treats differently people who are in a similar situation – thanks partly to the arbitrariness of the criteria landed upon – and fails to treat differently people in different situations, by subjecting all migrants to the same test. This article argues in favour of an integrated interpretation approach: that the reach of free movement rights should be defined according to a duty of both formal and substantive equal treatment. The scope of migrant work should be subject to the same principles as the content of Community law. In this way some asymmetry could be redressed; not by attempting to Europeanise the social, but by socializing the (already European) economic.