Social rights and the disintegration of (and through) law in the Economic and Monetary Union: taking stock and looking forward

Abstract

One of the defining features of the current the European integration process, and its constitutional architecture, is the progressive marginalization of EU law as an agent of integration. This has especially occurred in high-salience and politically contested domains, such as the Economic and Monetary Union (EMU) and migration control, riding the wave of the multiple crises that hit the EU over the last decade or so. Overturning the classical paradigm encapsulated in the "Integration through Law" project, this evolution engenders a double process of disintegration of law and disintegration through law. The first dimension encompasses a wide set of cases whereby EU institutions and Member States relied on instruments having an uncertain legal nature or, at least, deprived of the procedural and substantive guarantees inherent in EU law to pursue policy objectives set by the Treaties. The second dimension has mainly to do with the effects that the choice to resort to instruments and procedures that depart from those provided for by the Treaties had on the very idea of integration and its legitimacy. This chapter looks at the process of disintegration of (and through) law from the EMU angle, focusing, in particular, on the interplay between the above-described evolution and the protection of fundamental social rights in the EU legal order. The chapter begins by offering a brief overview of the disintegrative patterns that governed law in the context of the EMU after the financial and sovereign debt crisis started in 2008. Drawing on such analysis, it critically examines the interrelations between disintegration and the protection of fundamental rights. The chapter then scrutinizes the main actions undertaken to try to halt this evolution and address the ensuing distortions, namely the failed attempts to 'repatriate' the Fiscal Compact and the European Stability Mechanism into the EU legal order and the subsequent decision to adopt an agreement amending the ESM Treaty. Finally, the chapter takes a forward-looking approach, examining the recent response to the Covid-19 pandemic and the possible ways forward.