Abstract
The Court of Justice of the European Union is increasingly dedicated to the pursuit of economic efficiency. As this article will demonstrate, this has led to diagonal conflict between European legal pronouncements on the free movement of labour within a services regime and national jurisprudence on democratically-legitimated public procurement policies within distinct state aids regimes. Where once the CJEU treated public procurement as a distinctive part of the EU’s state aids regime, or one which might be reconciled with redistributive ethical and social concerns maintained at national level, the application of the EU services regime to procurement has placed this traditional understanding in doubt. This re-alignment, however, as well as the supranational-national conflict that it has created, reflects both the deeper mismatch both between European economic and national social competences, as well as friction between national and European conceptions of constitutional legitimacy. Such tensions must be overcome in order to secure continuing legal integration within Europe.
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Notes
And as such is a further manifestation of the recognition that the EU member states are now only ‘semi-sovereign’ in matters of social policy, because selective based market based interventions by European authorities have curtailed their scope for action (Leibfried and Pierson 1995).
Case 346/06 (Judgment of 3 April 2008).
See, Case C-31/87, Beentjes v. the Netherlands [1988] ECR 4635 and, in spectacular disagreement with the Commission, Commission v. France [2000] ECR I-7745.
Case C-438/05, International Transport Workers’ Federation, Finnish Seamen’s Union v. Viking Line ABP, OÜ Viking Line Festi (Judgment of 11 December 2007; Case C-341/05); Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundet, avd. 1, Svenska Elektrikerförbundet (Judgment of 18 December 2007).
A dedication most clearly evinced in Viking by AG Maduro’s treatment of the case of the movement of cheaper Eastern European workers to the established states of the EU as one of ‘allocative efficiency’. See, for details, Joerges and Rödl (2009).
The effort to maintain social insurance contributions by means of public procurement policy demonstrates the intricacies of the political regulation of the economy. At one level, such a complex effort to maintain social policies might be cited as one more argument in favour of economic efficiency. At another, however, it also demonstrates just how unexpected the impacts of spillover within Europe might be.
BundesVerfG, 1 BvL 4/00, 11.7.2006.
Interestingly, such national level agitation was also apparent in the Laval and Viking cases: the Swedish employers association was a party to Laval.
And here an argument may be made that the universal welfare state in contrast to the corporatist (regionally-corporatist) social state is far easier to adjust to an efficiency demand that requires redistributive social policy to be conducted in isolation from economic policy.
Evolved by Judges rather than made explicit in the constitution.
In particular, in relation to the management of the Eurosystem.
See, for details, of the tradition, Wegmann (2002)..
Most famously, H.P. Ipsen (1972).
That is its dedication to economic rationality as a means to legitimise the constitutional functions of European law.
Mestmäcker taking extreme exception to the incursion of EU economic law into areas of national social policy, see, for example his interview, ‘Dem EuGH fehlt Legitimation für Beschränkung direkter Steuern’ (Betriebs-Berater, BB 43.2008, 20.10.2008, p16). In a similar vein, see, Giandomeico Majone (2005). The reference to the disembedding of markets draws on the apocalyptic analysis provided by Karl Polanyi (1944/2001). The reference to the mastery of markets over the state is to Michel Foucault (2008).
For example, in the economics and law tradition, see above all, the works of Richard Posner within the Law & Economics tradition ((e.g., Posner 2007)).
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Everson, M. The Constitutional Structures of the National Political Economy: Barrier to or Precondition for European Integration?. J Ind Compet Trade 13, 119–128 (2013). https://doi.org/10.1007/s10842-012-0141-x
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DOI: https://doi.org/10.1007/s10842-012-0141-x