Towards a rethinking of the national systems of social protections? Observations on the recent jurisprudence of the Court of Justice

In the area of “Social security and protection of workers” Council’s unanimity is required. The consequence for the European integration is that it is a “reserved area”, where each State preserves its citizens’ feeling of belonging to a community.

Foreword by Jacques Delors

“Social security and social protection of workers” is one of the areas in which unanimity is required within the Council. The unspoken implication for the European integration process is that this is a “reserved area”, part of the mysterious process whereby each State preserves its citizens’ feeling of belonging to a community. All the surveys carried out have consistently confirmed that this is fundamentally supported by European public opinion.

Yet we should not jump to the conclusion that all is clear-cut. The Court of Justice, in fulfilling its duties, implicitly identifies – a contrario – the Union’s tasks in the sphere of social protection. A contrario, because the proceedings are brought – through national courts by groups which are challenging the constraints set by national social protection systems (whether private-sector operators wishing to expand the scope of their activities or social insurance beneficiaries wishing to rid themselves of national shackles). Solidarity is therefore an argument always used by the defence, never in a positive, pro-active manner, and we can hardly criticise the Court for not choosing its plaintiffs.

In recent years, it has thus had to deliver rulings in an increasing number of cases in which competition rules and the principle of free movement of goods and services were invoked to challenge national social protection systems. While the number of cases is still too limited for a clear doctrine to be inferred, a few trends can nevertheless be identified in the Community’s case law to date.

The conclusions emerging from Alessandra Bosco’s in-depth examination of the issue are mitigated. On the one hand, we must salute the wisdom of the Community’s judges, who have managed to draw a reasonable line between economic freedom and solidarity. In the process, they have demonstrated that they had no intention of undermining each Member State’s freedom to establish its social solidarity system according to its own genius and traditions.

Nevertheless, the growth in the number of proceedings requiring judges to settle issues of such significance on the basis of fairly general positive law provisions is somewhat disturbing. The ties of solidarity between members of a given society are too important an issue to be addressed indirectly, through legal proceedings. Despite the caution shown by the Court of Justice to date, we would do well not to underestimate the risks involved. I believe the situation calls for urgent debate on the need to establish a more positive and precise definition of the concept of subsidiarity, which seems to me to be consubstantial with that of social protection. To her credit, the study carried out by Alessandra Bosco encourages us to do just that by revealing the tension between economic integration and social protection that has emerged in recent years.