European Commonwealth ?

Comparative public law in Europe

Questions inspired by “The Death of Social Europe” published in Britain Alone! (edited by P. Birkinshaw and A. Biondi)


If you live long enough, you’ll make mistakes. But if you learn from them, you’ll be a better person. It’s how you handle adversity, not how it affects you. The main thing is never quit, never quit, never quit” Bill Clinton tells us. In the face of the accumulating challenges and crises (euro-crisis, migrant crisis, etc.), Britain chose a different strategy: she chose to leave the EU or at least to seek to drastically change its relationship with the EU for the future. In Britain Alone ! – The implications and consequences of United Kingdom Exit from the EU, Professor Birkinshaw (Hull) and Professor Biondi (King’s College London) edited a series of papers presented at a 2014 conference on the potential implications of Brexit on the UK. In a first part, this scenario fiction at the time of writing explored the constitutional consequences of leaving the EU for Britain and her components (ie Scotland, Northern Ireland, Wales). In the second part of the book, the papers analyse the impact of Brexit for a variety of policies, such as environmental law, external relations, judicial protection, criminal law, state aids etc. In his contribution to this book, Professor Ewing is not as much discussing the consequences of Brexit on British policies as discussing the deep transformations that the European social policy has undergone over the years: Professor Ewing unpacks the causes of the “Death of Social Europe”.

The development of a European Social Model finds its origins in the willingness of Jacques Delord to strengthen the internal market in 1988. To alleviate suspicions from trade unions, especially UK trade unions (for the paradoxical interactions between the EU and the UK social policy, see B. Bercusson, European Labour Law, CUP, 2009, 2nd edn, pp. 44-45), Jacques Delord promised that a balance would be struck between the making of the imgresmarket on the one hand and social justice on the other hand. It had become clear at that time that economic policies and the freedom of goods could not leave aside social policies and the protection of workers. If one wanted to promote the free exchange of goods and services within a single European market, workers needed to move freely to deliver these goods and provide these services across Europe. If nothing else, their work and employment relationships had to be – at least to some extent – organised and protected within a EU-wide framework. European citizenship would not only be political but also social.

In this way, the EU took an increasing interest in social matters. However, many years down the line, scholars have noted that the EU never developed a fully fledged European Social Model: its interventions remained patchy and always strongly connected to employment, with barely no measures were taken on matters core to social policy such as social insurance, health services or housing (C Barnard, “EU “Social” Policy : From Employment Law to Labour Market Reform” in P Craig and G de Búrca (eds), The Evolution of EU Law, OUP, 2011, 2nd edn, chapter 21, p. 660). Therefore, the overall social system in Europe is strongly two-facetted: EU law supplements a body of law that remains largely domestic. Mechanisms supporting solidarity tends to be very diffuse.

To illustrate his argument that social Europe is dead, Professor Ewing analyses how collective bargaining has seen its position within the European Social Model changing drastically. Collective bargaining is key to social democracies for it provides a way into labour involvement in economic decision making as well as a way to redistribute economic benefits. With the Maastricht Treaty, trade unions have been involved in the law making processes at EU level, creating a “neo-corporatist and coordinated model of capitalism” in the words of Julia Lopez (quoted by Ewing p. 235). Social dialogue was thus provided for EU decision-making and it was accepted as a way to implement EU law at domestic level. Yet, the EU framework did not provide for any system of social dialogue to be developed at domestic level, leaving national law largely to its own devices.

As mentioned above the development and implementation of a fully-fledged social policy had always relied on a EU as well as a domestic component. In the case of collective bargaining, the domestic component was going to be strongly weakened with the imgres-3euro-crisis. In 2012, the head of the European Central Bank, Mario Draghi stated that “the European Social Model has already gone” (Wall Street Journal 24 Feb 2012, quoted by Professor Ewing). Embattled in her fight to address the euro-crisis, the EU has taken a range of economic governance measures to seek to stabilise the euro and to coordinate more closely the economic policies of the euro-zone states. Globally these measures were seeking to ensure greater flexibility in the wage bargaining system and deregulation of the collective bargaining systems. The EU went very far in asking some national governments to dismantle their existing systems (eg Italy, Spain, Belgium, Portugal, Ireland, Romania or Greece). The overall outcome of these reforms means that neo-liberal economics have pushed aside collective bargaining, a legal instrument grounded in social democracy.

Professor Ewing’s thought provoking paper shapes very neatly the course taken by the European Social Model and its implication under international commitments undertaken by the EU. It also calls for linking the development of a European Social Model with the analysis of the domestic situation in Member States. At first sight, a European Social Model may seem to suggest that one single legal and institutional framework for developing social policies will be developed. The underlying idea is that convergence between the domestic social policies and European social policies will happen. As the internal market was slowly developed, the economic conditions for exchange in goods and services were becoming slowly similar. As countries are no longer able to adapt their currency, they are increasingly trapped in a rigid web of European constraints. From here on, there were two ways to respond to the financial crisis. On the one hand, the European Social Model could have been strengthened to protect the workers now made even more vulnerable following the economic downturn. On the other hand, social protection could have been watered down to encourage workers to seek work where there was regardless the social conundrum implied by accepting precarious jobs or going in low-wage countries with poor rate of job creation. In choosing the later option of social deregulation, the EU had to weaken collective representation of workers, reducing the collective powers of workers and paving the way to a road away from social progress. The end result of this European choice is thus the death of social Europe in the sense of a Europe committed to values of social justice.

This case study tells a very important story to the comparative public lawyer at three different levels: public, comparative and law. At the level of “public”, collective bargaining is a too for collective decision-making and an alternative to legislative and executive decisions. This makes collective bargaining part and parcel of a reflection by public law theories about how the power associated with collective bargaining is exercised, controlled. Furthermore, as this power is obviously taken away from neo-corporatist structure, where does it go and how can public law theories trace it and its exercise? As Clinton says, what matters is learning lessons from events. Maybe there are some lessons to learn here for the future of public law in Europe.

At the level of comparisons, collective bargaining calls the attention on the importance of culture and context around legal institutions, bodies and processes that were part and parcel of the social dialogue in European countries: trade unions, collective bargaining, consultation etc. Each country has different ways to embed their social compromises very deeply in webs of legal principles, agreements, boards, consultation processes etc, power relationships between various trade unions and between trade unions and employers. This makes any changes to this pattern very sensitive. Scholars like Otto Freund Kahn or Gunther Teubner have long highlighted the endurance and entrenchment of these institutional and cultural layers. The European Social Model was well aware of this to some extent with its two tiers-model. Yet, comparison across European countries may help unearth and map more precisely these social compromises and help charter a new strategy to make Europe more social and rooted in solidarity. As Clinton says what matters in front of adversity is not to quit or stop trying when faced with (provisional) failure.

At the level of the law, the EU member states may be involved in the making of a single European market, but they do not share the same type of capitalism. Mapping more closely the way in which the law articulate the economic and social constitutions within European states is very pressing indeed. The law and the rule of law are crucial in Europe and may be part of the solution for a future Europe. Yet, in looking for understanding what causes the European economic problem, lawyers may have to look beyond legal solutions and use creativity to support and facilitate economic and social reforms if and when appropriate. Put in other words, how far can a legal analysis of post-Welfare-states leave aside understanding the legal context, the economic and social issues as understood by economists and sociologists?

To sum up, here are three potential questions for further thoughts:

  • A question about the democratic legitimacy of decision making. How can representative and participative democracy be reconciled? In political matters? In social matters? In environmental matters?
  • A question about the history of administrative law: administrative law comes about approximately with the development of concerns of social policy and the baby steps towards the Welfare State (end of the 19th century in France, beginning of the 20th century in Britain). It is a field of law concerned with the use of power (especially by public authorities but potentially by private actors exercising similar powers as public authorities) and the control of that use by courts. This shaped some ideals for the delivery of administrative justice in Europe and this couls help us map the future of public law in Europe: Can we learn from the (pre-)history of administrative law and justice to develop a map for the future of administrative justice?
  • A question about the so-called “intermediary institutions” (public, private or mixed) in public law. What happens to them? What kind of legal principles apply to them? How do they evolve across Europe? Can we map them? Can we say that the system is moving from corporatism to neo-liberalism in the institutional design? Or can we see a different (“third way” or post-“third way”) model of governance emerging? What does this actually mean in specific countries and overall across Europe?

Please do contact us if you want to contribute to these or related questions.

Yseult Marique, Senior Lecturer, University of Essex

(Suggested citation: Yseult Marique, “Questions inspired by “The Death of Social Europe” published in Britain Alone! (edited by P. Birkinshaw and A. Biondi)”, August 2016, available at:


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This entry was posted on August 15, 2016 by in Book, Questions mapping, Social policy, Solidarity.
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