The CJEU on Trial: Social Justice and Economic Mobility
McCann, A
Date: 17 August 2014
Journal
European Review of Private Law
Publisher
Kluwer Law International
Abstract
This article focuses on the re-regulatory nature of certain European
economic freedoms and the subsequent effects on social justice. It examines
contentious judgements delivered by the Court of Justice of the European Union
(CJEU), wherein private economic arrangements and mobility affect core public goods
(namely health care and ...
This article focuses on the re-regulatory nature of certain European
economic freedoms and the subsequent effects on social justice. It examines
contentious judgements delivered by the Court of Justice of the European Union
(CJEU), wherein private economic arrangements and mobility affect core public goods
(namely health care and education) and certain specified fundamental rights (such as
the protection of human dignity, the right to family life, and the right to strike). The
general critique that cross-border market transactions represent a de facto clash
between solely private ‘economic’ interests and public ‘social’ considerations is
rejected. Such a dichotomy is readily manipulated to evidence the CJEU’s preference
for a neo-liberal private law society – whereby core socializing characteristics of the
welfare state are undermined to ensure market competition. This reinforces the biased
rhetoric of a ‘common interest’ and fails to understand the raison d’etre behind the
economic mobility provisions. Critical analysis requires a more holistic premise
advanced by Kukovec, through which the question of a just balance is actually between
individual ‘freedoms’ and ‘limitations’. With this more balanced nuance, the
compatibility of the controversial decisions with Böhm’s ordo-liberal private law
society may be observed – whereby market actors are afforded proportionate protection
from both state actor interference (e.g., Elchinov, Watts, and Baumbast) and powerful
non-state actor interference (e.g., Laval and Viking). This article does not promote the
argument that all judgments by the CJEU in this regard are explicitly well motivated.
The contrary may be said regarding a number of – now infamous – politically sensitive
cases. Such methodological failure has contributed to fears of a neo-liberal driven
union. However, and this is the crux of the matter, this does not mean that the
substantive outcomes support these fears.
Law School
Faculty of Humanities, Arts and Social Sciences
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