The EU market rules as social market rules: Why the EU can be a social market economy

Abstract

This paper challenges the "structural social deficit of the EU treaties" argument, referred to also as the asymmetry of economic and social integration within the EU. It shows that in relation to the Member States social policies the EU market rules (competition and State aid law, the free movement rules and deduced from them the public procurement rules) can be also read as social market rules, particularly after the revisions made by the Lisbon Treaty. I.e., this set of norms does not necessarily lead to a destabilization (by de-regulation, liberalization or privatization) of the Member States' welfare regimes, but allows for the inclusion of these systems into the internal market and insofar for the creation of a social market economy in the EU. The thesis is substantiated by a legal analysis of the EU negative welfare integration process structured along the different layers of the EU market rules at which that inclusion is legally implemented: their scope of application, the proportionality test and their impact when enforced. The EU market rules as social market rules - why the EU can be a social market economy*