The displacement of Social Europe: a productive lens of inquiry

In the 20^th century, the social component of the EU had a clear, albeit highly distinctive, profile when contrasted with definitions of social policy at national level. It focused mainly on improving and protecting the rights of workers, both in the market integration project per se as freely-moving workers and job-seekers and in protecting workers’ rights, including centrally the rights of women not to be discriminated against at work. High member state consensus (with just one outlier member state after 1979), empowered and adept supranational policy entrepreneurs in the European Commission, ¹ and judicial dialogue via the preliminary reference procedure, ² led to a worker-focused social acquis, a focus on the social partners and a Charter in 1989 exclusively focused on the Fundamental Social Rights of Workers. We might call this Social Europe for Workers. Such a focus was an essential part of underpinning the legitimacy of the EU project and EU institutional actors. Introducing a special issue of the Common Market Law Review in 1977 on Social Europe, Michael Shanks, Commission Director-General for Social Affairs between 1973 and 1976, made clear that the felt need to give the integration project ‘a human face’ translated into Social Europe for Workers law and policy outcomes. ³ Indeed the remaining articles of that special issue focused on free movement and social security co-ordination for Community workers, the European Social Fund, employee participation legislative initiatives and the free movement of third country national workers. ⁴ That is a quite striking illustration of the Social Europe for Workers’ focus.

The central claim of this special issue is that it is productive to consider changes to Social Europe by asking how this profile of Social Europe has been displaced and by evaluating such displacement. ⁵ Hence the suggestion is that the vision and content of Social Europe, anchored around creating protection for workers, has been displaced and that, in considering how and why that displacement occurred, we might shed some new light on Social Europe in the EU today and its development.

The first question to be addressed then is: why use the concept of displacement? Is this a productive way to investigate and shed light on Social Europe developments? Other ways certainly exist. Alongside impressive texts systematising and presenting the EU law and policy seen to comprise Social Europe, there are books, edited collections and journal articles exploring angles such as its future, its evolution or producing manifestos or new deals for Social Europe and calling for its resocialisation. Given its long-term anchoring in Social Europe for Workers, not surprisingly many of these legal analyses are primarily focused on labour law. ⁶ I liked the concept of displacement more than these or other contenders, not principally for its novelty, but because of the resonance of two of its central social science meanings. ⁷ A first meaning of displaced is moved elsewhere or replaced by something else. A second meaning is missing, threatened or vulnerable. Of course the central contemporary social use of displacement, in identifying displaced persons seeking refuge outside their own home (internally displaced) or their own state, fuses both these meanings so that those compelled to move elsewhere for their own safety are vulnerable, both in their former and their new location. Nonetheless, and crucially, the first meaning of displacement, when applied to Social Europe, does not necessarily have a negative connotation. Movement, of a policy frame, or of an individual, can be a positive even if a disorienting and transformative experience. The second meaning, however, embodies a negative evaluation so that something that should be safeguarded and protected (e.g. the right to collectively bargain in the EU) has been removed, forced out, threatened, limited or made vulnerable. This double meaning of displacement is what makes it a productive angle for identifying and evaluating the EU’s contemporary contribution to Social Europe.

The first meaning of displacement: moved elsewhere or replaced by something else

As this meaning is typically less explored than the second, I spend some time setting it out. The central point is that as the EU project got much more capacious, after Maastricht and Amsterdam in particular, so too did the focus of what might be social or what, to use Shanks’ phrase, might constitute the ‘human face’ of the EU. First, Social Europe moved beyond work. It became focused on a much wider range of welfare and social issues rather than just workers and their families. Health, education, pensions, housing and social inclusion all became resonant and substantial focuses of EU policy activity. Second, Social Europe moved elsewhere. Central components, such as status discrimination which started life as part of Social Europe for Workers ⁸ and in the Directorate-General for Social Affairs, are now typically considered as part of Justice and Fundamental Rights and have a new Commission home. The location of Social Europe activity, again closely connected to human rights, shifted to EU external relations, both in its accession to instruments such as the 2006 UN Convention on the Rights of Persons with Disabilities and the 2011 Council of Europe Istanbul Convention on gender violence, and in its trade agreements. ⁹ At the same time, much of the expanded social and labour EU activity was taking place outside the Social Policy Chapter of the Treaty. For instance, a significant new corpus of legislation on work and social entitlements came via EU migration and asylum law. ¹⁰ Moreover, over the last decade, a very broad range of policy messages on social and labour issues came through the European Semester, and social and labour constraints came via sovereign debt loan conditions managed by the EU institutions, opening a substantial new policy frame of Social Europe via the Economic and Monetary Union. Third, the ‘human face’ of Europe came not via or not primarily via Social Europe for Workers. This is perhaps the most important consequence of the expansion of EU activity across a much wider range of policy fields. Rather than Social Europe for Workers being a primary vehicle through which the supranational project could demonstrate its social legitimacy, the field became filled with other compelling contenders. Some of these took centre-stage, especially in legal scholarship, with perhaps the central example being the expansive use of EU citizenship by the Court of Justice to protect the mobile even when they were not economically active. ¹¹ Other EU ‘human face’ growth areas include protecting Europeans’ data. ¹² So while the traditional acquis for workers did not contract, and was modestly expanded, the focus of EU scholars’ attention mainly moved elsewhere, leaving this by and large as the preserve of labour lawyers. Until very recently, free movement of workers, not a central concern of labour lawyers, was benignly neglected in EU scholarship too, as the established precursor or backdrop to the new frontier of EU citizenship. Perhaps the most significant change amongst many came with the introduction of a written, and post-Lisbon binding, Charter of Fundamental Rights for the EU. This overlaid all existing legislative and judge-made rules and principles while offering opportunities for challenges or reinterpretations of other EU rules.

Finally, the reverse of the EU’s human face is its inhuman one. The expansion of EU powers and activities also meant that the EU could now importantly be seen as creating an inhuman Europe, or one that threatened human and fundamental rights. Again, however, the focus here is not centrally or solely on Social Europe. Instead, attention is focused on the rights implications of, in particular, the creation of an Area of Freedom, Security and Justice, and within that an EU operating on the assumption of mutual trust, so that one member state is as good as another, enabling for instance criminals to be transferred under European Arrest Warrants or asylum seekers to be transferred to the EU state deemed responsible under the relevant Dublin Regulation. ¹³

All this serves to underline, through these many examples, why the displacement of Social Europe is highly interesting and productive to reflect upon and evaluate. Social Europe is changed, partly because it itself changes but more importantly because the EU environment in which it is embedded is transformed. The central point is that this first sense of displacement does not lead (or at least not necessarily) to a negative evaluation, but rather to a better understanding and perspective on the place Social Europe has at any given time in the EU project. This important perspective is developed in particular by Muir in this special issue. ¹⁴ Moreover, it conveys that that place can also change so that Social Europe for Workers, or some broader understanding of Social Europe, can again become a new location of institutional focus. One reason for that occurring can be because of the second meaning of displacement: Social Europe, or parts of it, are seen not to be proceeding as they should, but are under threat, vulnerable or missing in ways that are problematic because of (or, alternatively, for) EU legal and political developments. This may then lead to Social Europe again becoming at least a part of the compass of providing a ‘human face’ for the EU. The current European Pillar of Social Rights, an initiative of the Juncker Commission, explored by Garben and Robin-Olivier in their contributions, ¹⁵ can be seen in this light. In part, it is a response to the weakening of social and labour rights required by EU institutions during the sovereign debt crisis. It is also seen as part of a response to broader populist challenges to the EU project.

The second meaning of displacement: missing, threatened, or vulnerable

This is an important and prominent way of looking at Social Europe. Although such criticisms began early, with the shift from legislation to governance in the 2000 Lisbon strategy already being claimed as a limitation or dilution of Social Europe, the last decade has seen a sea change. The shift from autonomous social and employment Open Method of Coordination processes to a macroeconomic European Semester with strong fiscal consolidation and deregulatory messages has been seen as threatening the integrity of national social and labour protection. ¹⁶ The specific social and labour requirements laid down in loan conditions or European Central Bank bond purchase programmes, an experience affecting almost half of EU member states over the last decade, have been the sharpest and most widespread normative expression of the EU as an active and ongoing dismantler of national labour and social protections. ¹⁷ At the same time, the Court of Justice took some important steps away from adopting a progressive and protective approach towards Social Europe to a freedom of enterprise or protection-limiting interpretation of EU social rights and guarantees. These have ranged across: limiting the rights of posted workers and of collective action to protect workers’ rights in cross-border situations; ¹⁸ limiting its earlier jurisprudence on the social rights accorded to mobile EU citizens; ¹⁹ and providing new non-progressive readings of some elements of the legislative labour acquis through a range of interpretative devices, including extensive application of the fundamental freedoms, invocation of the Charter freedom to conduct a business and reopening the purpose of the measures. ²⁰ All of these varied EU developments, coming from a wide range of EU actors, have been seen as not just moving but also undermining Social Europe. Significantly, if we go back to the list of issues covered in the 1977 Common Market Law Review special issue on Social Europe, today this is true, for the first time in the EU’s history, of free movement of workers also as a by-product of the events leading to the Brexit referendum in June 2016, ²¹ but foreshadowed in EU-Swiss migration disputes from 2014. ²²

While the two meanings of displacement are clear, the task of identifying and characterising a specific development as constituting a simple movement of, or as a threat to, Social Europe is often open to interpretative disagreement and contestation. While Giubboni argues that certain developments in the Court’s interpretation of the social acquis correspond fully to the second meaning of displacement, as a threat to Social Europe, ²³ Davies’ analysis suggests that some Court of Justice judgments, because they involve complex disputes between groups of workers, can be read as instances of apparent rather than real negative displacement. ²⁴ To take a further example, Dawson’s contribution asks whether the European Semester is best seen as a new location for socialisation of the EU project (the first meaning of displacement) or as undermining and marginalising Social Europe (the second meaning) as both views exist. He suggests important paths for testing these alternate characterisations. His analysis also demonstrates that there is not always an easy or straightforward solution to recentring Social Europe, even when there is sufficient consensus that EU developments have threatened it and that such recentring is desirable. ²⁵ A number of contributors also raise interesting questions about how certain decisions may, rather than only being viewed as straightforwardly regressive, be seen as retaining the social, but at the national level or outside EU methods and institutions. Hanna Eklund and Elise Muir, in their respective contributions, give distinct examples providing alternative readings of Dano and Alimanovic. ²⁶

The dimensions of displacement of Social Europe

While the different factors underpinning displacement make identifying a precise date impossible, the millennium is a useful hinge after which the displacement of Social Europe for Workers becomes increasingly apparent. If we focus solely on formal EU constitutional developments, it may seem counter-intuitive to claim that Social Europe for Workers is in retreat or being displaced. For a start, even at what I present as its 20^th century golden age, it was frequently called the Cinderella or, worse still, the ‘ugly sister’ supranational policy area. ²⁷ And since then, we have witnessed the flourishing of social policy competences, ²⁸ the expansion of the social governance tool-kit with the Open Method of Co-ordination, ²⁹ the mainstreaming of Treaty social commitments ³⁰ and the consecration of a wide range of social rights as binding fundamental rights. ³¹ These all took place only from Maastricht onwards with each Treaty iteration, Amsterdam, Nice and Lisbon, building on the last. Yet rather than contradicting the story of displacement, the contrast between what the Treaties promise and the life of EU social policy in policies, membership, institutions, and governance tells instead a more interesting tale of disjunctures between Treaty promises and EU practices. In this sense at least, there is continuity in the tale of Social Europe: the Treaties have never been a reliable or a sufficient guide to its content. The continued use of internal market competences for initiatives billed as Social Europe measures, even when – unlike in the 1970s – multiple social policy competences exist, is a good demonstration of the creative but fragmented nature of Social Europe. ³² Social Europe developed without all the Treaty support it needed (eg in the 1970s) and was placed under greatest pressure in the presence of its most significant support in the Treaties after Lisbon. The trajectory of social rights in the interpretation of the EU Charter of Fundamental Rights, explored by Robin-Olivier, provides a compelling example of the latter. ³³

This displacement manifests itself across a range of dimensions. At least four key dimensions are worth identifying: policy displacement, membership and displacement, institutional displacement and governance displacement. By policy displacement is meant firstly, as discussed above, that as EU areas of activity have expanded far beyond the internal market, more ‘competitor’ policy areas have become prominent within EU law and policy, such as data protection, protecting asylum-seekers, Roma rights or criminal justice. Just as importantly, the new overarching frame of fundamental rights has effects throughout all areas of EU law. ³⁴ These provide competing areas and frames for EU law legitimacy from the Social Europe focus. Alongside competing policy areas or frames, making Social Europe one of many in a more crowded field, the belief that Social Europe initiatives are a way of delivering desired policy and legitimacy objectives which command widespread acceptance, has weakened considerably. This can be because of conflicts, real or perceived, between groups of workers, such as younger and older workers, as explored by Anne Davies in her contribution. It can also be because it is believed that protection for labour market ‘insiders’ limits access to employment for ‘outsiders’. These can make Social Europe a less appealing option in a field with many more alternatives. At the same time, policy displacement can also mean fewer initiatives to build Social Europe while other policy frames, centrally Economic and Monetary Union and the internal market, drive policies with significant socio-economic impacts. Accordingly Garben’s analysis highlights the exceptionally limited use of the Social Policy Title in the EU Treaties over the last decade, as an important indicator of policy displacement, alongside the rise of Economic and Monetary Union and internal market as frames, and considers whether the European Pillar of Social Rights may address this. ³⁵

Changing EU Membership (enlargement and proposed withdrawals) is a further highly significant lens through which to track, understand and evaluate displacement. ³⁶ Enlargement, and the new kinds and quantities of free movement of EU nationals it produced, has had the political and legal effect of placing free movement in conflict or in tension with national systems of social protection and industrial relations (rather than free movement operating towards progressive opening of equal access to those systems to certain categories of cross-border movers, as had previously been the case). This tension between free movement and national social and labour systems has been evident in accession treaties, ³⁷ in case law ³⁸ and in the politics of the EU. Its sharpest manifestation was in the pre-referendum renegotiation of UK membership of the EU during which the social costs of free movement of persons, for the first time, replaced the labour law acquis in Conservative government priorities as the most pressing social issue requiring resolution. ³⁹ However, reflecting upon membership opens up other less obvious but productive lines of inquiry. We might imagine, for instance, assume that member states renowned for their social and industrial relations model, will straightforwardly upload that to EU level politics and institutions and vice versa. Eklund questions any such straightforward relationship by exploring Sweden’s EU membership from the perspective of its contribution to building Social Europe within EU law and institutions. ⁴⁰

A third issue concerns EU institutional displacement. When Michael Shanks wrote his analysis in 1977, Gabrielle Defrenne had just won her renowned victory at the European Court of Justice, ⁴¹ and the Social Affairs Directorate-General of the Commission was filled with empowered actors including femocrats. ⁴² Lack of specific competences in the Treaty did not prevent a raft of Community legislation on gender discrimination and workplace rights being proposed by the Commission and adopted by the legislature. In the Delors years (1985-1994), social partner promotion was accompanied by Court and Commission supporting extensive use of the social competences introduced by the Single European Act and Maastricht. Bold and progressive interpretation of the social acquis was a highlight of the Court’s activities and a prominent focus of constitutional EU scholarship. ⁴³ Institutional displacement asks us to consider what has changed institutionally and why? Examples worth investigating include the Commission locations and relocations of Social Europe issues, the contrast between the Barroso (2004-2014) and the Juncker (2014-2019) Commissions, the different Council configurations with a say on Social Europe matters, ⁴⁴ and the place accorded the social acquis in contemporary decision-making by the Court of Justice. ⁴⁵

A final area worth investigating and reflecting upon is governance displacement. From a high point of hybrid new EU employment governance in the early years of the Lisbon strategy in which the European Social Fund, the European Employment Strategy and the EU acquis were partially integrated to achieve social objectives, ⁴⁶ much has changed. Disintegration of this hybrid regime has been accompanied by social objectives and governance being subsumed into the European Semester from 2011 onwards. ⁴⁷ At the same time, the social acquis has been a central focus in the recent intensification of the EU Better Regulation agenda, especially in the REFIT (Regulatory Fitness and Performance) programme launched at the end of 2012. To give just one of many possible examples, amongst the ‘Top 10’ burdensome EU Regulations identified by Small and Medium sized Enterprises in a Commission consultation as requiring EU action in 2013 no less than four are social acquis directives: the Posted Workers’ Directive, the Framework Health and Safety Directive, the Temporary Agency Workers’ Directive and the Working-Time Directive. ⁴⁸

Discussing the factors which have given rise to displacement clarifies the mechanisms and pathways by which Social Europe may find new spaces and prominence in the ongoing construction of the EU. As argued above, one of the advantages of displacement’s dual meaning is that it provides an explanation of why it is not straightforwardly the case that all these developments are to be negatively, or indeed positively, evaluated. A blanket positive evaluation would see the turn away from Social Europe for Workers as the EU rightly deepening its focus on workers other than EU workers, expanding its focus on social issues beyond work, such as health or poverty, and adjusting worker protection to ensure other EU priorities such as inclusive and growing labour markets, adaptation to membership challenges and changes, or the need to make the single currency function. A blanket negative evaluation would see all these developments as simply a turn away from worker protection, a thinner, meaner Social Europe tout court and a triumph for neo-liberal agendas within the EU. ⁴⁹ One of the key aims of analyses focusing on displacement is to test the persuasiveness of different explanations and evaluations of Social Europe developments. In so doing, it is also to ask about the conditions under which Social Europe might find new ways to flourish in the contemporary EU.

This analysis, introducing the special issue, has sought to argue that displacement is a productive lens of inquiry for investigating Social Europe for two reasons. First, it opens a productive space for identifying and analysing the many new locations of Social Europe. By asking where else is it now, it points away from staying in the track of assuming it is primarily (still or only) defined by Social Europe for Workers and opens interesting further questions about its new locations and dimensions. Second, it does not point to a straightforward evaluation of all recent Social Europe developments as regressive or progressive. Uniting both these reasons is the productive capacity of displacement to destabilise, to acknowledge that Social Europe is in some important senses provisional work-in-progress and can benefit from shifts of perspective and knowledge of the wide range of avenues those advocating for a more Social EU can address. ⁵⁰