The Time has Finally Come to Start Deconstitutionalizing the EU

by Jean-Claude Barbier

Mario Draghi will be famous for many things in the future, but mainly for two: one is the astonishingly bold choice he made to act “whatever it took” (his “whatever, though, never included the act of sharing debts, Vergemeinschaftung in German, among the nation-states of the EU); but the other one is his very unfortunate declaration to the Wall Street Journal (2012), according to which the “European social model had already gone”.

On this latter count, the “welfare state” is certainly nothing of the past in 2020, while it is presently saving tens of thousands of Covid-19 patients across the EU, and, although temporarily, protecting millions from directly tumbling into mere poverty and unemployment. Nevertheless what we are dealing with is not a European welfare state. Only US scholars, such as Neil Fligstein, may fancy that the EU would be split by a “Euroclash”. In reality, our lot in Europe is a collection of national, very well interlinked and very unequal, but strictly national systems of social protection. No Spanish citizen for instance pays a single cent for funding the unemployment insurance of German employees.

This article aims to show that here lies the crux for necessary reform that would in the future bind together the consolidation of national systems with the strengthening of the much too underestimated social dimension of European integration. We do not need new competences for the EU, or as Mrs Van der Leyen once said, “more Europe”. What we need is less EU legal competences in the social dimension. This reform should be part of the “de-constitutionalizing” of the EU; it provides a fitting example of the process advocated by professor Dieter Grimm.

In the present state of the EU, the fact that “solidarity” is mainly a topic for spin should not detain us for long. President Barroso’s mendacious style taught us this lesson during the 2008 economic crisis. As an expert in political communication since his student years, he traveled to Limerick in Ireland in order to advertise for a “Globalization Adjustment Fund” with a minuscule funding, when measures for millions of workers and employees would have been necessary. Apart from the Structural Funds, Into and out of the great 2008 crisis, such petty “solidarity” was unfortunately all that “social Europe” was able to provide its citizens with. Indeed, “solidarity” was never, in strict legal terms, part of the letter of the Treaties, except in article 80 (asylum and immigration). And article 80 precisely is a blatant example of non-implementation of solidarity that every citizen knows about in the EU. Another form of actual, legal “solidarity” is extraordinarily important in the EU, and especially in times of pandemic: it’s named “public healthcare systems”. All EU citizens directly depend on these for being cared for and for staying alive in April 2020. Yet the great majority of these citizens are entirely unaware that their so-called “public” healthcare (social security/social insurance) can only exist because a fragile piece of case-law, the so-called “Poucet-Pistre” 1993 ECJ ruling. This provision allows “public healthcare systems” to operate, by exception, without abiding by competition law (the normal rule) because they are based, precisely, on solidarity. Despite its crucial importance, the exception crafted by the ECJ in 1993 has never been included into primary or secondary law; it is potentially entirely at the whim of the Court of Justice of the European Union (CJEU).

Suppose the EU Commission became aware, as M. Macron last March, of the central role of social protection today: it could very easily correct this incredibly fragile situation of the national systems, by putting forward the project for a cross-cutting directive as a legal, sustainable, secondary law basis for protecting the health of EU citizens. This cross-cutting directive would, by the same token, also cover “public pensions” and other welfare programmes. This would no doubt bring serious help to M. Macron, the French President who, on the 12th of March told French citizens that healthcare was among “the goods and services that should not be submitted to the law of the market”.

A second legal endeavor could be promoted along with our proposal for the cross-cutting Directive on public (social security) schemes. In the spirit of “deconstitutionalizing” the EU, the task is to legally limit the scope of application of the so-called “fundamental freedoms” across a number of domains of social policy, social rights and industrial relations. Martin Höpner has aptly discussed this topic with reference to the ETUC proposal for a Social Progress Protocol, which (so far in vain) has sought to impose an equal treatment of fundamental social rights with comparison with economic freedoms in the policies of the EU. The current reflections about the importance of social policy in the European integration process are a very good opportunity to take up this task again.

Of course handling “solidarity” this way may appear as less important than debates about the war of judges between the Bundesverfassungsgericht and the CJEU. The role of hypothetical so-called “coronabonds” or of the mutualization of debts may appear much more important. Yet both discussions are entirely linked, because they concern the future of the European Union. One reason for this crucial political link lies in the fact that in order to favour the role of pro-European and not only nationalist parties, EU citizens have to be shown seriously that they are protected by well-funded and sustainable public systems of healthcare, pensions and unemployment insurance, of the type that were created at the end of Second World War.

About the Author

Jean-Claude Barbier is CNRS emeritus professor (sociology), Université Paris 1 Panthéon Sorbonne (CES), Paris.

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