The CJEU on Trial: Social Justice and Economic Mobility

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 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.