The Effect of the Judiciary-Induced Policy Development: Collective Order Versus Individual Rights in EU Social and Employment Policy

Abstract

As in other policy areas, one of the significant characteristics of EU social policy is the critical role played by the ECJ in its policy development. This paper analyses the effect of the leading role of the judiciary in the EU. The ECJ intervention is usually discussed using the dichotomy as “neo-liberalism” against “Social Europe,” or Community responsibility versus Member-states autonomy (F. Scharpf). Building on the argument proposed by Menedez (2010), which contrasts individualistic rights put forward by the ECJ with solidarity, this paper offers a new perspective to understand the political tension inherent in the EU social policy. The paper illuminates two elements of EU social policy. One is the “collective order” element. This element characterizes the “form” of EU social policy, most prominent in the Articles 153 - 155 of the TFEU. The other is the “individual rights” or citizenship element, which is prominent in the “content” of EU social and employment policy. This element is further enhanced by the ECJ-induced policy development. These two elements are potentially in conflict. This inherent contradiction is manifest in recent labour cases, namely Laval, Viking, Ruffert and Luxemburg cases. Through the examination of the cases and responses of various political and social actors, this paper contends that it is not the question of whether liberal or social Europe. Rather, the conflict is between the individual and the collective element of the social and employment policy.