Social policy and the judicial making of Europe: capital, social mobilisation and minority social influence

Abstract

This article puts forward a cohesive narrative to explain the contribution of European social policy to the judicial making of Europe. By making a case for the inclusion of social policy as part of the discourse on the constitutional practice of the Court of Justice of the European Union, together with focusing on a socio-legal deconstruction of four seminal social policy judgments of the Court (Defrenne II, Von Colson, Harz and Francovich), the article undertakes a systematic approach to tracing the contribution of the field, and more specifically of its labour and non-discrimination law strands. To formulate its socio-legal analysis, the article adopts an explanatory framework, which draws on Bourdieu’s concepts of capital and field, the theory of legal mobilisation and Moscovici’s minority social influence, and which is applied to the selected judgments as a case-study. The framework enables the analysis to shed light on the dynamics between stakeholders in the social dimension of the European legal field and to persuasively showcase how social policy case-law, despite its sui generis dynamics, merits to have a place in the conversations surrounding the transformation of Europe.

1. Introduction

The Court of Justice of the European Union (CJEU/Court) has played an important role in advancing European integration, by taking centre-stage in the efforts to transform the Treaties into a proto-federal constitution.¹ Although scholars harbour different views on whether and if the CJEU single-handedly managed to constitutionalise European integration, they all agree that its contribution to furthering the latter has been notable. Yet, a systematic analysis of the contribution of social policy case-law in this endeavour is lacking, despite the area giving rise to seminal judgments such as Defrenne II,² Von Colson,³ Harz ⁴ and Francovich.⁵ This article sets out to explain how it is possible that the case-law on social policy, broadly understood and with particular emphasis on its labour and non-discrimination law components, proved decisive in the forging of the structural principles of European Union (EU) law by the CJEU,⁶ despite the fact that social policy was a relative laggard in the process of integration.⁷ In other words, how could social policy help drive European integration through doctrines while otherwise being side-lined in EU policy-making?

The meagre EU social laws at the time, together with the very first judgments of the Court’s proto-federal jurisprudence, facilitated litigation that gave the Court the chance to further develop its constitutional practice. Through supremacy and direct effect, the foundational doctrines of that constitutional practice, national courts and individuals (as litigants, lawyers or other actors) were empowered to take part in the ‘promulgation and implementation of [EU] law’.⁸ Accordingly, as a litigation tool, European social policy norms tended to be invoked by claimants who wished to challenge the compatibility of Member States’ provisions, or employment practices more broadly, which ostensibly fell below the EU-wide standards of protection.⁹ EU social laws, thus, became a safety net, a last chance saloon for traditionally disadvantaged litigants.¹⁰ The relatively good chances of such claims succeeding, resulting in national courts putting pressure on national legislators for positive change, rendered the reliance on European social policy norms an appealing route, despite the fact that litigants in this context tended to possess few resources and little capital.¹¹

The development of European integration meant that more and more areas, even those traditionally portrayed as part of the Member States’ competences, such as social policy, could not evade their adjudication before the CJEU.¹² Due to the nature of the claims put forward before national courts, the Court’s engagement, at least during the proto-federal era had been constructive. Especially in relation to non-discrimination law, the Court achieved a double aim through its case-law. First, to challenge discriminatory practices and, second, to undertake a broad interpretation of EU social laws.¹³ The foregoing created the right conditions and opportunity structures for litigants, especially in the context of public interest litigation, to try and make use of the preliminary reference procedure.¹⁴ The rise of strategic litigation counterbalanced the litigants’ low capital. At the same time, the content of those rulings, which apart from interpreting the EU social law in question, often asserted the authority of EU law more broadly, saw the Court willing to adjudicate such disputes, if anything, to advance its constitutional practice.¹⁵

For the Court to advance its constitutional practice, cases needed to reach its docket. In the social policy realm, these cases often saw disadvantaged litigants who were discriminated against or denied employment protection being supported by activist – and often pro-EU – lawyers and organisations, or even, indirectly, by national courts that were willing to make use of the preliminary reference procedure. Litigants’ insufficient resources, manifested in low levels of economic, cultural and symbolic capital, were, thus, boosted due to the support they received by such actors, who, by reason of their background, status or role, tended to enjoy higher levels of capital. This legal mobilisation, whatever its source or form, helped amplify the social policy claim at issue. It also ensured that the case got noticed by the CJEU.

The preceding discussion explains how a social policy case, despite the onerous position of its claimant, could reach the docket of the Court. It, nonetheless, does not necessarily account for such a case being used by the CJEU as an important addition to its constitutional practice. Looking for concepts beyond legal and political science, in fields like social psychology can prove useful. Conceptualising litigants and their allies as a minority takes stock of their ever-marginalised position in terms of resources and capital in the wider context of EU litigation, especially when compared to cases of business or commercial nature. Yet, social psychology professes that certain minorities can be influential. Minority social influence shows that ‘active’ minorities, minorities that are pragmatic, committed and unwilling to compromise, are drivers of innovation.¹⁶ Under these circumstances, the minority’s innovative views stand a good chance of being embraced by the majority. Accordingly, the innovative use of EU law these minorities employed to advance their social policy claims during the proto-federal era, laid the groundwork for the Court to further develop its constitutional practice.

Stemming from the above, social policy can mutatis mutandis be responsible for some of the key judgments contributing to the Court’s constitutional practice. Despite the lack of a clear vision for the area at policy level, it appeared that the labour and non-discrimination provisions in place were relied on in litigation that eventually added to the proto-federal jurisprudence of the Court. The existence of some social laws at EU level, combined with retained powers by the Member States, prompted litigants to bring cases before the Court for the reasons mentioned above. In addition, the relatively limited scope of positive integration meant that there could be clashes with various aspects of the more detailed national legislation that was applicable, which presented opportunities for adjudication. Besides, it was relatively straightforward for litigants and other actors to take stock of the relevant EU rules in place and, consequently, to try and frame cases in a way that fell within their remit.

Against this background, this article adds to the literature by focusing on the contribution of European social policy to the proto-federal jurisprudence of the Court. It does so by undertaking an interdisciplinary socio-legal analysis, drawing on Bourdieu’s concepts of capital and field, and Moscovici’s minority social influence, alongside accounts of legal mobilisation and historical insights, assessing these in connection with the CJEU’s four seminal judgments in Defrenne II, Von Colson, Harz and Francovich. Conceptualising the Court’s constitutional practice as a field highlights the power relations between the different stakeholders involved in the examined judgments. These power relations are often determined by the amounts of capital possessed by each actor. Legal mobilisation provides insights on how the stakeholders with low levels of capital could be empowered in this context, by getting support to pursue their claims through the opportunity structures present in EU litigation. Finally, minority social influence offers an explanation of the prima facie disjunction between disadvantaged claimants and the transformative impact of their case on the judicial making of Europe.

To effectively address these matters, the article first sets out the literature drawing attention to the important role various actors played in the constitutionalisation of Europe, and whose involvement is sometimes overlooked in light of the more prominent role taken on by the CJEU. At the same time, it locates its contribution to that literature by conceptualising EU law and the Court’s constitutional practice as a distinct legal field, laying down the foundations for the analytical framework of the article. The discussion then moves on to explain why and how social policy, and in particular its labour law and non-discrimination strands, can offer new insights by providing a fresh perspective on the Court’s constitutional practice. Thereafter, the explanatory framework, which draws on the concepts of capital and field, legal mobilisation and minority social influence, is set out. Then comes the main analysis which dissects the judgments in Defrenne II, Von Colson, Harz and Francovich in order to trace the reasons behind European social policy’s somewhat paradoxical role in providing the Court with the right conditions to move its proto-federal jurisprudence forward. Finally, the conclusion reflects on the contribution of European social policy and its place in the course of the Court’s judicial making of Europe.

2. The Court and the unseen contributors to the judicial making of Europe

Lawyers and political scientists alike have painstakingly recounted how seminal judgments of the Court shaped the trajectory of European integration.¹⁷ The mainstream narrative in the literature perceives the CJEU as the core institution responsible for bestowing a proto-federal character on the European project. The key component in carving the EU’s proto-federal character was the so-called constitutionalisation of the Treaties and the EU legal order more generally. The traditional view pins this process down to a reading of the Treaties by the CJEU as if they were a constitution, departing from an interpretation similar to that of public international law.¹⁸ This departure was achieved by the creation of doctrines ‘that fixed the relationship between Community law and Member State law and rendered that relationship indistinguishable from analogous legal relationships in constitutional federal states’.¹⁹

The framing of the legal relationships as akin to those found in federal states prompted the observation that the CJEU was creating a proto-federal order. Supremacy and direct effect, conceived by the CJEU in Costa v ENEL and Van Gend en Loos respectively,²⁰ became the doctrines that monopolised the discussions around the constitutionalisation of the EU by the CJEU.²¹ Costa v ENEL and Van Gend en Loos gave effect to a system of judicial remedies and enforcement that differentiated EU law from public international law.²² Nevertheless, for such a system to become optimal, further steps were required for EU law’s decoupling from international law,²³ taken by the Court in the form of follow-up judgments.²⁴ Although not all these follow-up judgments featured prominently in the accounts of the Court’s constitutional practice, their significance in this context is uncontested.²⁵

The mainstream narrative in the literature focuses on the centrality of the CJEU as the instigator of the EU’s constitutional moment. This thesis is not surprising, given that seminal pieces on the matter were authored by judges and other actors within the Court.²⁶ Yet, it has been persuasively shown that the Court did not act alone in this process, for otherwise the backlash would have been immense. Member States, as the main players of the EU’s political process, needed to be on board with, or at least not systematically against, the pertinent CJEU case-law.²⁷ Although presented with opportunities to openly alter their relationship with the CJEU, Member States chose not to, tacitly accepting the Court’s conceptualisation of a proto-federal order.²⁸

Supporting the idea that the constitutionalisation of the EU did not solely originate in Luxembourg, historical analysis has shown the influence of the negotiations of the Treaties of Paris and Rome, and the remnants incorporated therein of the federalist and constitutional aspirations from the failed Treaty establishing the European Defence Community.²⁹ The federalist and constitutional aspirations carried over in the framing of the EU legal order by a series of stakeholders, whose interaction and positioning close to – and at times even within – the Court, was crucial for the proto-federal order to be cemented.³⁰ Consequently, it is difficult to attribute the creation of the proto-federal order to the Court’s constitutional practice alone. Instead, the proto-federal order appears to emanate from a synergistic interaction of various actors, including the CJEU.

The CJEU had been for the most part in alliance with the Commission’s integrationist position in the context of its seminal constitutional judgments.³¹ Moreover, Member States’ national courts also adopted a mostly accepting position towards the CJEU’s jurisprudence,³² engaging constructively through the preliminary reference procedure, which is in itself what enabled the Court to hand down its judgments.³³ In turn, this would not have materialised had it not been for the lawyers that were made aware and sought to make use of the litigation opportunities that the EU legal order created, pushing novel claims and test cases through to the CJEU.³⁴ Associations, such as FIDE were also influential in the development of seminal EU law doctrines, their recommendations taken up by the CJEU.³⁵ Finally, the academic community of European scholars of that era, with its close ties to the Court’s officials and generally pro-European attitudes, lent its support to the endeavour.³⁶

Following from the above is the view of the Court not as the sole instigator of the constitutional transformation of the EU, but as the most obvious one among many. Due to its institutional position, the Court can be considered as the mouthpiece of such shared understandings of European integration. It has been receptive to both internal and external influences, aware of the surrounding context, and reactive to signals by the Member States, adapting the direction of its jurisprudence for the most part.³⁷ To better reflect the foregoing, more recent accounts set aside the concept of constitutionalisation in favour of the notion of constitutional practice.³⁸

This article acknowledges the advances and insights offered by the interdisciplinary and often empirical accounts of the Court. Not only that, but it purports to add to these accounts by looking at other analytical frameworks that can be used to explain what underpinned the creation of core EU law doctrines in policy areas less studied in that regard. Drawing on socio-legal approaches, the constitutional practice of European law is considered as a distinct legal field. The concept of field has been defined by French Sociologist Pierre Bourdieu as a self-governing social space, where ‘actors and institutions [are] in competition with each other for control of the right to determine the law’.³⁹ The field, thus, constitutes an area of power struggles among the actors involved therein. The concept of field is not unknown to the study of the EU. It has been applied to the institutional, political and governance elements of the project.⁴⁰

Vauchez introduced the notion of the European legal field in order to locate the position of law in a broadly construed understanding of EU government, focusing on the structure of EU institutions, the relations among them and the influence they exert on European integration.⁴¹ By focusing on the role of lawyers, he contends that they, together with the idea of law as the object of power struggles within the European legal field, were instrumental in building and shaping the so-called transformation of Europe before the Court.⁴² He continues:

The knowledge and beliefs that are being produced, however, are not just some sort of esoteric or technical message, but form a set of representations of the European Union, its history and its government. In other words, what is usually considered as the mere surface of the social processes that shape European integration could well be one of the essential spaces where the government of Europe is being shaped.⁴³

The different actors within the European legal field, their power relations, worldviews and characteristics ought to be studied in greater depth, for they play a central role in determining the understanding of the law, which then prevails within the EU legal order. The CJEU is, thus, one among the many actors involved in the determination process. Its prominence in the pertinent discourse rests on the fact that it is tasked with handing down judgments, which provide a resolution to questions of interpretation and validity of EU law, using an ‘authoritative tone’ that supports a ‘magisterially institutional voice’.⁴⁴ Behind the façade of a judgment lie the power struggles between the views of the judges, the Court’s bureaucracy, any EU institutions and Member States involved, national courts, lawyers, litigants and collective actors, to name the parties often implicated in a case.

The influence of each actor features in varying extents in the literature, with litigants getting the least attention, at least in terms of their influence and contribution from a legal field perspective.⁴⁵ Despite that, litigants are important in that it is them that trigger the preliminary reference procedure, which had enabled the CJEU to hand down its seminal judgments in Van Gend en Loos and Costa v ENEL that propounded the proto-federal character of the EU. Especially since the creation of supremacy and direct effect, which introduced the idea of enforcement through private actors litigating on the basis of EU law, thus empowering the preliminary reference procedure, litigants, alongside their lawyers, as well as lower national courts sought to take advantage of the new legal landscape.⁴⁶ To this matrix, civil society organisations and collective actors can be added. They were of particular assistance to worse-off or otherwise disadvantaged litigants.⁴⁷ The afore-mentioned group of actors, often portrayed as close allies, was present in power struggles taking place within the field of the constitutional practice of European law, according to which the transformation of Europe was a social construct, an osmosis of different views, whose final outcome was depicted in the text of the Court’s constitutional judgments.⁴⁸

Perhaps the lack of attention towards litigants is to be attributed to their relatively weak position, compared to other actors in the examined field. To rely on another Bourdieusian concept, litigants tend to enjoy lower amounts of capital, be it economic, cultural, symbolic or social, compared to other actors.⁴⁹ Their influence in the final determination of EU law, is likely to be meagre, particularly if they belong to the so-called ‘have-nots’ or ‘one-shotters’, litigants with few resources and, consequently, low levels of capital which only rarely make use of transnational litigation, such as the one provided under the preliminary reference procedure.⁵⁰

If the constitutional practice of European law is the outcome of power struggles that denotes collective action,⁵¹ then what – if any – is the role of litigants and their allies? The legal mobilisation literature ascertains that a ‘one-shotter’ is likely to succeed in the pursuit of their claim, and might in turn have higher chances of influencing the constitutional acquis communautaire, if they are supported by a ‘repeat player’: a collective actor, association, trade union or activist lawyer.⁵² Naturally, there are cases where these repeat players do not exist. Yet, sometimes, litigants and their allies manage to exert considerable influence in the adjudicative process of the Court, appearing to constitute a paradoxically prominent minority in the power struggles of the legal field in question. It is here that the concept of minority social influence, which has its roots in social psychology, can generate new insights.⁵³ Capital, legal mobilisation and minority social influence form the basis of this article’s analytical framework, cementing its contribution to the literature that sees the Court’s constitutional practice of European law as a legal field, a social arena where actors interact with and influence each other. As such, these concepts are touched on in more detail in Section 4.

3. Social policy as the analytical context

Before presenting the analytical framework in more detail and test its potential by applying it to a number of seminal judgments that advanced the constitutional practice of European law, it is important to specify the policy area under examination in this article. The discussion of concepts like capital, legal mobilisation and minority social influence will gain further credibility if it is done in a clearly delineated and specialised context.⁵⁴ The article seeks to put forward a new framework according to which the contribution of prima facie weak actors within the legal field of the Court’s constitutional practice can be explained. To do so, the field ought to be narrowed down further, by looking at a particular subject matter of case-law, where the majority of litigants are unlikely to be considered as ‘haves’, lacking resources and high levels of capital. At the same time, that subject matter needs to be a policy area of European integration that has yielded a number of CJEU judgments of constitutional significance. Moreover, it would be interesting to look at a relatively under-researched area in that regard. The re-evaluations of the Court’s constitutional practice mainly focus on Van Gend en Loos and Costa v ENEL, or other judgments closely linked to free movement with little systematic attention paid to the social dimension of European integration.⁵⁵

A notable component of the social dimension is social policy. At first glance, the polysemy of the term makes social policy hard to define.⁵⁶ Free movement of workers and, later on, EU citizenship, social security, labour and non-discrimination law, can all potentially fall under its remit, especially if a broad definition is adopted. Trying to trace the contribution of all these strands of case-law in the confines of an article would have been unmanageable. Not only that, but each strand has had its own distinct development and underpinning rationale, rooted in different legal bases and tied to particular adjudicative approaches by the CJEU, which makes their holistic examination difficult.⁵⁷

Instead, this article chooses to examine the strand of case-law that deals with labour law and discrimination in the workplace. This is not a random choice, given the content of the preceding paragraph. Labour and non-discrimination law are the strands of social policy most closely associated with the term from a formal perspective, especially during the proto-federal era.⁵⁸ The provisions found in the social policy chapter of the Treaties for the most part refer to EU action in labour and non-discrimination law. Furthermore, searching InfoCuria, the Court’s online database, using social policy as the subject matter would yield results that almost exclusively refer to these two strands.

Indeed, labour and non-discrimination law are key pillars of European social policy and have contributed to European integration.⁵⁹ They also constitute the perfect testing ground of the article’s analytical framework, which purports to explain the contribution of such case-law to the Court’s constitutional practice. Unlike some more solidaristic areas of social policy, there are some EU-level rules that can be invoked by litigants in national courts. Litigants that seek to benefit from the minimum harmonisation approach of EU labour and non-discrimination law, which often lays down a lowest common denominator among the Member States, de facto tend not to be privileged. Their circumstances would make it difficult for them to instigate change. To begin with, their lack of resources, especially of financial nature, constituted an obstacle to engaging in litigation.⁶⁰ Social policy’s more peripheral role vis-à-vis the single market compared to the fundamental freedoms was another reason why litigants faced additional hurdles when bringing their claims forward.⁶¹ These factors therefore make it all the more interesting to offer an explanation of the circumstances in which these litigants, and their allies, managed to gain an influential position in the labour and non-discrimination strands of case-law. Finally, although judgments such as Defrenne II and Francovich have seen the spotlight of academic commentary, there is no cohesive narrative that links these judgments together while assessing their contribution to the Court’s proto-federal jurisprudence.

4. Capital, legal mobilisation and minority social influence

This article contends that there are three concepts, which, together, can act as a framework to explain the contribution of European social policy to the proto-federal order through the Court’s constitutional practice of European law: first, the Bourdieusian concept of capital, with its many manifestations, within the EU legal field more broadly, and that of the Court’s constitutional practice more specifically; second, the framework of legal mobilisation, which has prompted scholarly interest by political scientists and legal academics alike; third, the, relatively unknown to EU studies, idea of minority social influence, rooted in the work of social psychologist Serge Moscovici. This section sets out these concepts, which provide a persuasive analytical framework to showcase how the social policy case-law of the Court took the role of a constitutional facilitator for the realisation of the proto-federal order.

The selected concepts are interlinked and interdependent. Taken together, capital, legal mobilisation and minority social influence offer novel insights into the study of this strand of the Court’s proto-federal jurisprudence. Although the concepts are self-standing, as manifested in studies that have focused independently on the role of capital, or, more often in EU scholarship, on that of legal mobilisation, the article is based on a conscious choice to bring them together in order to offer a more compelling explanation of the social policy’s contribution to the judicial making of Europe. Inadequate resources or an inferior position de facto make litigants and the individuals associated with them a minority in the EU legal field, while legal mobilisation is a distinguishable pattern employed by such actors to compensate for their otherwise low levels of capital. Minority social influence, drawing on social psychology, offers an additional layer of speculation behind the seemingly paradoxical success of the – often disadvantaged – minorities under examination.

A. Capital in the EU legal field

It was mentioned in the second section of this article that the EU litigation landscape, including that giving rise to the Court’s constitutional practice, can be characterised as a distinct legal field of transnational magnitude⁶² due to it drawing on national judicial or otherwise rules of procedural and substantive character, alongside the available litigation avenues in the Treaties.⁶³ It is also part of the wider European field of power, which in sociological terms represents the overarching ‘locus of the struggle for power between different types of power holders’.⁶⁴ As a field, the EU legal field more broadly, as well as that of the Court’s constitutional practice more specifically, comprise a number of stakeholders: the CJEU and its bureaucracy, its national counterparts, litigants and their lawyers, and collective actors and similar organisations.⁶⁵ These stakeholders inevitably interacted with each other in the course of the CJEU’s proto-federal jurisprudence.⁶⁶ The power dynamics within the afore-mentioned field are – at least partly –determined by the levels of capital each stakeholder possesses.⁶⁷

‘Field’ and ‘capital’ are concepts coined by French sociologist Pierre Bourdieu, who acknowledged the existence of a distinct legal field.⁶⁸ As mentioned above, capital is a determinant of power within a field. Capital also comes in different forms. However, before setting those out, it is important to first define it. Capital is a twofold concept manifested as the innate force behind social interactions, but also as an underlying principle of society more broadly, acting as a behavioural code instilled in each person through their upbringing, and which pre-determines their disposition.⁶⁹ Whomever possesses capital is likely to win the afore-mentioned struggle for power, while it is society and its structures that apportion capital to the stakeholders within a field. In turn, this means that, focusing on the EU legal field, including that of the Court’s constitutional practice, there are some conclusions that can be drawn for the actors involved therein. For example, judges, especially those of the CJEU, due to its position as the final arbiter for EU law matters, are likely to enjoy a, if not the, decisive role in the context of the EU legal field. Likewise, they are likely to hold larger amounts of capital, since they are traditionally perceived as belonging to the dominant class.⁷⁰

Despite their interpretative monopoly, decisive role and seemingly abundant capital, judges alone do not determine the outcome of a case before them. Other stakeholders of the legal field exert influence in the judicial process. Bourdieu poignantly observed the following:

The practical content of the law which emerges in the judgment is the product of a symbolic struggle between professionals possessing unequal technical skills and social influence. They thus have unequal ability to marshal the available juridical resources through the exploration and exploitation of ‘possible rules,’ and to use them effectively, as symbolic weapons, to win their case. The juridical effect of the rule—its real meaning—can be discovered in the specific power relation between professionals. Assuming that the abstract equity of the contrary positions they represent is the same, this power relation might be thought of as corresponding to the power relations between the parties in the case.⁷¹

Lawyers, therefore, play an important role in the process, as does any other support litigants receive. The litigants’ socio-economic background also influences their access to justice and, mutatis mutandis, the outcome of the judicial process in the EU legal field. The interdependence of these actors is the reason why the capital of each and every one of them matters. Their levels of capital assign their position within the judicial process and the EU legal field more broadly. Capital extends beyond an economic understanding to other forms, such as social and cultural.⁷² All forms of capital are interrelated. Economic capital refers to anything that can be translated into monetary value, including property rights. Social capital captures people’s connections, including club or other powerful group affiliations. Finally, cultural capital is threefold and includes mental and bodily dispositions (embodied state), cultural goods (objectified state), and education, qualifications and other skills (institutionalised state).⁷³ When a specie of capital is recognised as legitimate, then it constitutes symbolic capital.⁷⁴

The three forms of capital might be interdependent, but the salience each bears depends on the field where the stakeholders interact. This is so because ‘a field constructs its own particular symbolic economy in terms of the valorization of specific combinations and forms of capital’.⁷⁵ In the EU legal field, this goes beyond a simplified exchange between judges and lawyers to a complicated amalgam of stakeholders in the form of the CJEU, national courts and their bureaucracies, lawyers, supporting actors and litigants. Since the EU legal field consists of actors that fulfil often mutual needs, determining and upholding EU law in the wider sense, then forms of capital beyond its merely economic manifestation might take the lead in influencing the judicial processes and power struggles among them.

Even though economic capital is important for litigants to afford legal representation and contemplate commencement of such proceedings, possessing social capital is equally important for gaining support from collective actors, or liaising with contacts with appropriate expertise. Likewise, symbolic capital in the form of similar – or even better, identical – qualifications or education could help improve the degree of interaction between lawyers and judges. The foregoing is common for all legal settings or fields. In addition to its distinct legalese, the EU legal field presents an additional challenge: the double hurdle of its transnational context, where actors often tend to interact first at a national and then at a supranational level.⁷⁶ The accumulation of various forms of capital could result in different degrees of power at each level.

Given that non-discrimination law has been a notable component of European social policy, and considering that during the proto-federal era gender was the main ground of discrimination, apart from nationality, clearly protected under EU law, it would be useful to briefly discuss the gendered dimension of capital. Gender and its dispositions have been considered as always underpinning the various forms of capital, and at the same time constituting a hidden, ‘universal and natural’, form of capital on its own.⁷⁷ This duality in the representation of gender in the capital discourse emanates from the societal valorisation of gender per se as a determinant of power in a field on the one hand, and the impact it has on the formation of the traditional forms of capital on the other. In turn, cases of discrimination on grounds of gender tend to involve women, which are traditionally more disadvantaged.⁷⁸ To achieve a breakthrough in the field, they need to possess or accumulate adequate levels of one or more forms of capital, which, based on the foregoing, is harder compared to their male counterparts.

More broadly, the stakeholders involved in bringing forward social policy cases before the CJEU were faced with a series of innate obstacles in terms of capital formation and accumulation. The uneven policy trajectory and relatively narrow ambit of the subject matter negatively affected the starting point of anyone wishing to rely on the social acquis to precipitate positive change. Along the same lines, litigants in social policy case-law are traditionally worse off, not only from an economic, but also from a cultural or social capital perspective, than those in internal market cases, not least because they are not backed by financial interests.⁷⁹ These factors undoubtedly dampen the breadth of the cases that can be brought before the CJEU, as well as their successful litigation and transformative potential. Yet, in some instances, the afore-mentioned obstacles were overcome, and European social policy case-law managed to shape the proto-federal order of the EU. This could be explained by making recourse to legal mobilisation and minority social influence.

B. Legal mobilisation

Legal mobilisation addresses some of the problems facing individuals or groups wishing to instigate positive change. They might not be able to instigate that change through the policy process because they lack the required combination of capital, but they can litigate their case through the courts. Accordingly, legal mobilisation at EU level could help overcome obstacles or disadvantages at the national level.⁸⁰ This is in line with a broad definition of legal mobilisation, which departs from the traditional socio-legal view of the concept to acknowledge its use by a wider range of actors extending beyond social movements.⁸¹ Such a broad understanding of legal mobilisation covers instances of strategic litigation initiated by holders of capital, not supporting a social movement per se, but other interests. Giangaleazzo Stendardi and Flaminio Costa, the individuals behind Costa v ENEL, for example, were motivated by favourable views of an expansive understanding of economic freedoms and an activist belief in the European rule of law.⁸²

As a bottom-up mechanism of instigating change, legal mobilisation is not immune to the implications of capital. Litigants like Costa, other Euro-lawyers, or some of the companies engaging in internal market litigation are at a better starting point than Gabrielle Defrenne, due to the attributes of capital they possess. The former, enjoying higher overall levels of capital due to their know-how, standing, connections or money, have an advantage over the latter, enjoying some of the benefits that Galanter identified as going hand-in-hand with the so-called ‘haves’ or ‘repeat players’.⁸³ These advantages include past experience, resources, lobbying and informal institutional relations, increased credibility and not being risk averse more generally.⁸⁴ On the other hand, the so-called ‘have-nots’ or ‘one-shotters’, individual litigants at the bottom end of the capital continuum, need to push hard and mobilise strategically to increase their levels of capital, and, consequently their chances of success.

The social policy case-law is an area where ‘one-shotters’ abound. The litigants themselves are often marginalised and disadvantaged, with the exception of the odd trade union or other institutional or collective actor. For these litigants, supported legal mobilisation through strategic litigation is key. Support by what would have otherwise been repeat players, such as interest groups, activist lawyers, trade unions or other institutional and organisational actors ‘can give individuals who would normally pursue just “one shot” in court the advantages of repeat players’.⁸⁵ This form of supported legal mobilisation, akin to that undertaken by social movements, has provided disadvantaged actors within the EU legal field with avenues for effective legal representation, resources, specialisation and networks, which effectively increases their capital, in particular its social and cultural forms.

Non-discrimination law, in particular, is a poster child for legal mobilisation. Ever since the emergence of second-wave feminism in the late 1960s and 1970s, European feminists, acting as an advocacy coalition, pushed for policy change at EU level to tackle, among other issues, discrimination in the workplace.⁸⁶ These feminists saw the CJEU as the institution capable of enforcing working women’s rights derived from EU law in their respective Member States.⁸⁷ To achieve that, they sought test cases, with the most famous among them being that of Gabrielle Defrenne.⁸⁸ The next section of this article examines the Court’s seminal judgment in Defrenne II in detail. Feminist lawyers, public interest groups or equality bodies brought additional capital to disadvantaged women litigants, enabling them not only to bring their cases forward, but to have a viable chance of success.⁸⁹ Success in that context even resulted in changes to national legislation.⁹⁰

A form of transnational activism, legal mobilisation in European social policy case-law has enabled ostensibly weak actors to push their claims through and instigate positive change for themselves and the proto-federal legal order of the EU.⁹¹ Legislative change at the national level as a result of successful mobilisation leading to and following up on a CJEU judgment, for example, buttresses the enforcement of EU law, developing the Court’s constitutional practice. Indeed, Schmidt sees constitutional change throughout the EU as ‘the significant prize of successful litigation’.⁹² The constitutional change was achieved indirectly. The claims that social policy litigants raised in this supported mobilisation landscape, in turn, permitted the Court to enrich its constitutional practice of European law.⁹³

At this point, one may ponder on the motivations behind lending support to social policy litigation. Why did support emerge for this strand of legal mobilisation that resulted in such profound constitutional ramifications? Although better perceived as a continuum rather than binary, actors supporting such mobilisation harboured both internal and external motives vis-à-vis the subject matter. Social policy cases represent a good example of altruistic mobilisation, a fertile ground of cause-lawyering to improve conditions in the labour market, social protection and welfare across the EU.⁹⁴ Identity politics is another selfless reason why certain collective actors, trade unions, equality bodies or other similar organisations, intervene and support litigation in the field. On the other hand, advancing European integration more broadly is a distinct external motive, deeply associated with Euro-lawyers. The latter example of mobilisation is less about the substance of the case from a social policy perspective, and more about its potential for constitutional change, developing the proto-federal order of the EU.

The combined capital of those litigating social policy case-law is undoubtedly increased through legal mobilisation, no matter its motives. Although it is difficult to decipher the variations of legal mobilisation in detail,⁹⁵ this article offers an understanding of its effectiveness in the specific context examined herein through the concept of minority social influence. Despite their prima facie lower levels of capital, actors involved in social policy litigation at EU level are empowered by legal mobilisation to successfully pursue their claims and, at the same time, they end up influencing the Court’s constitutional practice of European law as a result. In this context, minority social influence offers an explanation of the transformative – in constitutional terms – impact of social policy case-law, despite it being a resource-lite – at least in terms of material resources and economic capital – area of mobilisation.

C. Minority social influence

Minority social influence, a concept coined by French social psychologist Serge Moscovici,⁹⁶ is ‘a form of social influence in which the deviant subgroup rejects the established group norm and persuades the majority to the minority attitude, opinion, belief, or behaviour pattern, thereby changing the norm’.⁹⁷ To contextualise this definition, in social policy case-law the deviant subgroup is comprised of the claimants and any other stakeholders that support them (lawyers, activists, national courts, organisations, etc). The term ‘deviant’ should not be perceived as having a negative connotation, but purely as denoting marginalised social groups with limited resources and capital, termed active minorities, a broad group including – but not limited to – social and scientific movements, whose common thread ‘is the tendency to seek visibility, to forge an identity, to convert the majority to their ideas and beliefs, in short, to change the groups or societies to which they belong’.⁹⁸ Similarly, the established group norm in the examined context is the traditionally held view, especially until the Treaty of Maastricht, that social policy-making sits at the margins of European integration compared to other areas, being primarily located within the realm of the Member States’ competence. As such, social policy was prima facie unlikely to contribute to the Court’s constitutional practice. Indicatively, until the end of 1975 only two cases had been lodged before the CJEU falling under the social policy subject matter, Defrenne I and II.

The preceding analysis constitutes an abstract construction of the mainstream view. More specific manifestations of it arise in each dispute adjudicated before the CJEU. To give some examples, the majoritarian view prior to Defrenne II was that it was debatable that the wording of Article 119 of the Treaty establishing the European Economic Community (EEC), one of the then few social policy provisions, could be enforced in horizontal situations to benefit disadvantaged women claimants.⁹⁹ Likewise, workarounds to the lack of horizontal direct effect of Directives, the core legislative instrument of EU policy-making in labour and non-discrimination law were not systematically developed prior to Von Colson and Harz. Finally, before Francovich it was unlikely that non-compliance with a Directive on the insolvency of the employer would give rise to state liability, and avail a precise remedy for litigants, eroding the principle of national procedural autonomy.

Minority social influence offers fresh insights for the EU legal field, by plausibly establishing a link between the emergence of social policy case-law, which was supported by legal mobilisation, and the impact that this had on the development of the proto-federal order of the EU. This is because the European social policy case-law stakeholders, representing the minority in the popularity of their views and accumulation of capital, managed to influence the majority, the capital holders that represent the institutionalised majority. In the EU legal field, the majority would include the Court and other EU institutions, as well as stakeholders that uncritically side with the dominant views, such as (some of) the Member States.

Against this backdrop, a pressing question lingers. How does the minority manage to persuade the majority of its views? A minority will be successful if it ‘has a clear view of reality, is committed to its view, and is unwilling to yield or compromise with respect to its position’.¹⁰⁰ If these qualities exist, then the minority is likely to exert influence on the majority through the validation process, wherein the majority is keen to understand and ascertain the minority’s arguments, becoming more receptive to the latter.¹⁰¹ This is possible because active minorities are the key drivers of innovation, which, together with the majority’s erring on conformity, underpin decision-making processes.¹⁰² The innovation in the examined field rests on the efforts to rely on the fragments of the European social policy acquis, centred on labour and non-discrimination law, to induce change. Although the end-goal of the minority is not always to induce a constitutional change, their innovative approach might entail new readings of EU law that mutatis mutandis helped propound the Court’s proto-federal jurisprudence.

A problem that these active minorities, such as the actors involved in litigating European social policy, are faced with is lack of – mainly economic – capital or resources. Although having economic capital in abundance would undoubtedly help such minorities, they have successfully devised alternative strategies to succeed through innovation.¹⁰³ Indeed, such a pattern has been observed in the field of legal mobilisation. Actors with low levels of capital associated with material resources resorted to strategies that drew on non-material resources and non-economic forms of capital for their claims to succeed.¹⁰⁴ Active minorities’ constant struggle for innovation as telos, framed as a committed and uncompromised endeavour, is the main route for them to have their voice heard and achieve policy and societal change. The concept of minority social influence does not involve a forced compliance mechanism.¹⁰⁵ Instead, it seeks to influence the majority’s behaviour, hoping to achieve attitude change, reflected in policy and judicial decision-making outcomes. The risk remains, though, that the intended outcome may never materialise.

Studies have shown that innovation exerted through minority social influence tends to produce change, which is mostly covert or private, leaving additional hurdles for the active minorities to overcome in order to ensure that change eventually materialises in the public sphere too.¹⁰⁶ Nevertheless, in the legal field, their influence already seems to extend to the public sphere because judges can become allies to active minorities. Bourdieu noted that ‘through the more or less extensive freedom of interpretation granted to them in the application of rules, judges introduce the changes and innovations which are indispensable for the survival of the system’.¹⁰⁷ Even though the motivation behind the commitment to change may differ, judges’ attitudes may still support an active minority’s innovative agenda, especially if it helps serve their own. Likewise, through legal mobilisation, a small minority, as in the single unit of the European social policy claimant, is supported to become an active one,¹⁰⁸ with its voice being amplified as a result, subsequently increasing that minority’s accumulation of various forms of capital.

In the context of the article’s case-study, it is important to underline that minority social influence remains relevant and can continue to act as part of the explanatory framework even if the minorities teaming up to pursue a case do not share the same objectives or motivations. The same applies in regard to the objectives and motivations of the majority. They do not have to allign with those of the active minority. By way of illustration, there might be different underlying motivations from the part of the CJEU for accepting the minority’s position. Such motivations could be self-serving like the aggrandisement of its role, for example, as opposed to a desire to advance and enforce gender equality per se, which could be the objective sought by the minority. This does not render minority social influence irrelevant, but it rather means that the innovation brought forward by the minority should also act as a tool to serve the motivations of the actors representing the majority. What is, thus, required is some behavioural alignment between the two sides for the minority position to be eventually satisfied by being relied on, and by simultaneously acting as an acceptable vehicle serving (part of) the majority’s own motivations to innovate.¹⁰⁹

Drawing parallels to the prerequisites for litigation to precipitate policy change,¹¹⁰ what is required for the framework to work in the field of the Court’s constitutional practice is: a) a network of actors constituting a powerful minority, b) the latter’s desire to innovate by relying on European social policy for whatsoever motive, c) national courts’ use of the preliminary reference procedure, and d) eventual alignment between the innovation proposed by the minority and the Court’s receptiveness to it. It does not mean that whenever these conditions are met, minority social influence would have played a role, but that in these circumstances, and upon further engaging with the particulars of each case, minority social influence might be a persuasive tool to add to the narrative used to examine the Court’s proto-federal judgments.

5. The framework in action: Defrenne II, Von Colson, Harz, Francovich and their judicial making of Europe

After setting out capital, legal mobilisation and minority social influence as the three main components of the explanatory framework, this section applies these concepts to four seminal social policy cases. Before doing so, the peculiarities of social policy compared to other strands of the Court’s case-law are worth considering. Especially, insofar as the examined labour and non-discrimination litigation is concerned, the following can be observed: there was an insignificant or non-existent free movement element; apart from Article 119 EEC, the majority of the provisions were of secondary EU law, namely Directives; most of the situations arose horizontally between private parties, the employee and the employer. These elements presented opportunities for the Court to develop aspects of the constitutional practice of European law, considering that at that time not all characteristics of the proto-federal order were fully fleshed out. Preliminary references with social policy as their subject matter raised several issues of constitutional significance necessary for the realisation of a comprehensive proto-federal legal order, such as further particulars surrounding the enforcement of EU law, the extent of legal integration’s interpretative authority and influence, and even alternative remedies for disadvantaged claimants whose EU rights were undermined by their Member States.

When adjudicating cases with constitutional ramifications, the Court, despite its strong relationship with a variety of stakeholders, must act cautiously. Otherwise, ostensibly over-reaching judgments may lead to non-compliance or, worse, outright rejection by national courts, and could even culminate in Member States’ governments trying to change the Court’s composition, given their central role in the appointment process of its members.¹¹¹ This is likely the reason why the Court chose to lay down direct effect and supremacy in separate judgments, for example, and that it was in the lookout for further opportunities to develop these doctrines further through the preliminary references that reached its docket. Moreover, the outcome of the CJEU’s judicial decision-making is not immune from intervention to weaken its scope, be it at national or EU level.¹¹²

The afore-mentioned limitations can also apply to cases of influential minorities, empowered through legal mobilisation or increased levels of capital. However, in relation to the Court’s proto-federal judgments, which set out the most cherished EU law doctrines, attempts to dilute them had been largely unsuccessful.¹¹³ Overriding constitutional doctrines necessitate constitutional amendments, which are translated into Treaty change in EU law, something hard to materialise given the requirement for unanimity and difficulties in reaching consensus among Member States with diverse interests.¹¹⁴ Consequently, the inherent difficulties in overturning constitutional judgments helped the proto-federal jurisprudence of the Court to establish itself as such, standing the test of time, with most critiques touching on the exact degree of the Court’s contribution therein.¹¹⁵

How did European social policy feature in this endeavour? Through its contribution to the conceptualisation of certain aspects of the Court’s proto-federal jurisprudence. Simply put, some of the relevant cases arose within the labour and non-discrimination context of European social policy, with the preliminary references seeking guidance as to the interpretation of EU social laws, be it in the form of Treaty Articles or other secondary legislation. Regarding the cases under consideration for the purposes of this article, Defrenne II revolved around what was then Article 119 EEC on equal pay for equal work; Von Colson and Harz concerned the Equal Treatment Directive 76/207/EEC; whereas Francovich involved the Employer’s Insolvency Directive 80/987/EEC. In fact, social policy is the sole subject matter coming up for all four cases when searching the CJEU’s InfoCuria database. The conceptualisation of the doctrines that arose therein could, thus, partly be attributed to the circumstances that prompted the actors involved in those cases, be it the litigants, their lawyers or the national court, to approach the CJEU through the preliminary reference procedure.

In turn, these circumstances prompted the ever-expanding jurisprudence of the Court, which not only substituted formal policy-making, but also pushed the proto-federal order forward.¹¹⁶ The constitutional impact of equality case-law has already been singled out,¹¹⁷ but, as Francovich demonstrates, such assertions could be transplanted to other areas of European social policy, such as labour law. The synergies between judicial social policy-making and constitutional law-making by the Court have been acknowledged elsewhere.¹¹⁸ Granted, one could argue that the CJEU conceiving or elaborating doctrines through its social policy case-law might be clearly accidental.¹¹⁹ Nevertheless, such an approach disregards the collective character of the constitutionalisation process¹²⁰ reflected in the conceptualisation of the Court’s constitutional practice as a legal field wherein its various actors interact with each other in a power struggle aiming towards the determination of the law.

At this stage, it is worth briefly touching on the selection of these cases. Since the ambit of this article’s research question centres on the CJEU-derived doctrines that constitutionalised the EU legal order in the context of social policy case-law, it is essential that the judgments chosen for analysis possess three characteristics: a) they are filed under the social policy subject matter in InfoCuria; b) they introduced and/or manifestly enriched a well-established doctrine of EU law; and c) they were decided during and contributed to the proto-federal era of the EU legal order. These are the parameters that defined what a seminal case is for present purposes.¹²¹

On that basis, four judgments were chosen: Defrenne II, in which the Court clearly spelled out the horizontality of direct effect; Von Colson and Harz, associated with the principle of harmonious interpretation or indirect effect; and Francovich, where state liability was affirmed as a means to ensure the effectiveness of Community law. Arguably, this is a small sample of social policy case-law, especially if a broad definition of social policy is adopted. Yet, it is important to note that the article focuses on the labour and non-discrimination strands of European social policy for reasons mentioned earlier, which considerably decreases the number of eligible cases. Indicatively, a search on InfoCuria yields only eight results of judgments delivered until the end of 1979 with social policy as their subject matter.¹²² Moreover, the key objective of the article is to showcase the potential of the analytical framework in constructing a cohesive narrative to trace the contribution of social policy case-law to the Court’s constitutional practice. Accordingly, and similar to how other strands of case-law have been discussed and grouped in the literature on the transformation of Europe, these four cases are good illustrations of well-known textbook examples of the Court’s constitutional practice, and satisfy the criteria of the preceding paragraph to apply the analytical framework thereon. Follow-up studies could explore a higher number of cases from a macro-level perspective, also going beyond the InfoCuria’s – at times – rigid classification.

Applying the explanatory framework to these cases achieves two overarching aims. First, it showcases the framework’s relevance. Second, it helps to better elucidate the dynamics behind the contribution of social policy case-law to the constitutionalisation of the EU. In other words, it helps construct a cohesive narrative. The foregoing renders this section a case-study for the plausibility of the framework and the increased contextualisation of the Court’s jurisprudence following socio-legal and interdisciplinary traditions.¹²³ As such, the section does not intend to offer a doctrinal account or an exhaustive analysis of the legal significance of the four cases, not least because these abound in the academic literature. Instead, the analysis adopts a socio-legal, interdisciplinary approach, rooted in the chosen explanatory framework, to offer fresh insights into the judicial constitutionalisation of the EU’s proto-federal order through the Court’s social policy case-law, focusing on its labour and non-discrimination components.

A. Defrenne II: the textbook case

Defrenne II is arguably the pre-eminent case of European social policy and its non-discrimination strand more specifically. It enshrined in EU law the principle of equal pay for equal work between men and women, laid down in what was then Article 119 EEC. At the same time, the case contributed to the proto-federal legal order of the EU. The Court explicitly spelled out the existence of horizontal direct effect: the ability of individuals to rely directly on a provision of EU law, even against another private party.¹²⁴ The constitutional implications of the judgment were immense. The CJEU, by fleshing out the specifics of direct effect further, accepting its horizontal application, contributed the final piece of the puzzle regarding the enforcement of EU law, broadening significantly the pool of situations where individuals could make use of the preliminary reference procedure.¹²⁵ Although previous judgments paved the way and hinted at the existence of horizontal direct effect,¹²⁶ it was in Defrenne II that the Court handed down a fully realised conceptualisation of it, framing it as a positive right in the face of a narrowly worded provision seemingly addressed to the Member States.¹²⁷

The foregoing shows what propelled Defrenne II to be a textbook case for horizontal direct effect and the affirmation of a cornerstone principle of EU law alike. Yet, it is also the textbook case of strategic litigation through legal mobilisation with a litigant successfully relying on EU law to pursue their claims.¹²⁸ But how did Gabrielle Defrenne, a flight attendant for the then Belgian flag carrier SABENA, manage to precipitate a change of such magnitude? On the face of it, a woman in a precarious job, fired at the age of 40, as opposed to 55 for her male counterparts, must have been situated at the lower end in terms of capital accumulation, no matter which form. The most obvious route of support, and mobilisation, the trade unions, was not an option for her, or her women co-workers.¹²⁹ For them, a professional organisation was in place, ‘for some time unrecognised as a social partner by management and other unions’, which later became formally known as the Belgian Corporation of Flying Hostesses (BCFH).¹³⁰ Amongst their series of actions, they sought a test case to reach the courts. Defrenne, willing to fight her dismissal,¹³¹ but not to take an active role publicly, stepped forward.¹³²

Defrenne, herself a minority due to her low levels of capital, paired up with an active minority, BCFH, to gain adequate representation and support, and to improve the chances of her claim succeeding in court. Nevertheless, due to its non-recognition as a trade union, the position of BCFH was relatively weak. It was still an outsider in industrial relations and the EU legal field more broadly. Nevertheless, BCFH’s standing as a feminist organisation, provided it with cultural and social capital, and helped it find the right lawyers for the claim, Éliane Vogel-Polsky and Marie-Thérèse Cuvelliez, active in the feminist movement, cause-lawyering and academic community, and long known to each other since university.¹³³ Inspired by the women’s strike at the Belgian weapons factory Herstal, Vogel-Polsky saw the opportunities that a horizontally directly effective Article 119 EEC would create and teamed up with Cuvelliez to look for a test case, which they found in Defrenne.¹³⁴

Vogel-Polsky and Cuvelliez boosted Defrenne’s chances considerably.¹³⁵ They were insiders of the (EU) legal field and, in advocating for women’s protection and empowerment, sided with the agenda of BCFH, together constituting a potentially powerful active minority, with increased levels of all forms of capital, and mobilised to make use of the EU legal arena. Moreover, according to social psychology, a minority will succeed in exerting influence if it is aware of the reality, committed to its view and unwilling to compromise.¹³⁶ At an interview, Vogel-Polsky noted that, even before the case was brought, she was convinced that Article 119 EEC was capable of direct effect, but was repeatedly dismissed as a professional feminist by Euro-lawyer colleagues.¹³⁷ She alone could not push for change. She needed a case, and further support, which she found in her feminist comrades, women workers and their associations, such as the BCFH, and finally Defrenne as the ideal test case. Precipitating change turns, therefore, into a collective endeavour for someone who wants to innovate.

Here, the innovation propounded by the team behind Defrenne II was simple: to rely on EU law for the protection and promotion of the rights of women workers, being disregarded at the national level. Vogel-Polsky and Cuvelliez sought to achieve this by taking advantage of the emerging constitutionalisation of the EU by the Court. Indeed, Vogel-Polsky admitted that she was convinced of the CJEU’s fundamental role because, in her view, the supranational mechanisms (direct effect and supremacy) that supported the creation of the proto-federal order and which were coined by the Court, signalled an institution that was willing not simply to reiterate the law, but to create it.¹³⁸ This, together with the overall attitude of the Court’s stakeholders, who strived through their interpretation of the law to create a European consciousness, inspired her to pursue strategic litigation and cause-lawyering.¹³⁹ There were signals that this group might be receptive towards innovation, recalling Bourdieu’s observations about judges and their desire to innovate.¹⁴⁰ In fact, it has been noted that the Court in Defrenne II engaged ‘in an absolutely original approach’.¹⁴¹

At this stage, it seems that the requirements for this famous social policy case to contribute to the judicial constitutionalisation of Europe were met. There was an active minority of various actors (claimant, professional organisation, lawyers) that wanted to innovate, which, allied together, increased their levels of capital. In addition, Defrenne II was a clear example of mobilisation, where altruism and identity politics on behalf of BCFH, Vogel-Polsky and Cuvelliez were instrumental in bringing the case forward.¹⁴² However, the process of persuading the majority to side with their view took time. Defrenne was more of a saga, resulting in three judgments by the Court. The first,¹⁴³ in 1971 against Belgium,¹⁴⁴ was a failure.¹⁴⁵ The Court found that statutory pensions did not fall within the definition of pay under Article 119 EEC, despite the sympathy expressed by the Advocate General assigned to the case.¹⁴⁶

As an active minority exhibiting the prerequisites for successful minority social influence, they persevered. The fact that preliminary references were sent to the CJEU by the Belgian courts was an early sign of success, at least in terms of their mobilisation effort. The second was the sympathy of Advocate General Dutheillet de Lamothe, assigned to the first Defrenne case, and his hinting that Article 119 EEC was directly effective, something that was used by the claimant’s lawyers in Defrenne II.¹⁴⁷ The intervening years between the two CJEU judgments (1971–1976), during which Europe witnessed the rise of second-wave feminism, widespread industrial action in the form of strikes and the institutional commitment to social policy at the EU level, constitute the third.¹⁴⁸ These show how actors within the legal field could interact and influence each other. Cuvelliez herself noted that Defrenne II was ostensibly taken much more seriously from the outset.¹⁴⁹

The Court was likely persuaded due to the increased capital of everyone involved in supporting Defrenne’s case, their mobilisation and conformity to the requirements for successful minority social influence. Their commitment to innovate succeeded in precipitating change, but this took time. The Court was also influenced by the social reality, which in turn helped the latter to better understand the claimant’s position.¹⁵⁰ In addition, the Court’s prior engagement in the constitutionalisation of the EU might have made it easier for it to eventually find that Article 119 EEC was capable of horizontal direct effect. Research in the archives of the case has shown that the Court ruled out the Commission’s argument about a distinction between private and public sector employees, disregarding the views of this powerful player in the EU legal field.¹⁵¹

The judgment represented an important breakthrough on behalf of everyone involved in the case, and its significance for both European social policy and the proto-federal legal order is undeniable.¹⁵² In relation to the more tangible aspects of the case, though, the Court yielded to the economic arguments by the intervening Member States, mainly the UK, rejecting the retroactive application of the principle, which meant that Defrenne still suffered a material loss.¹⁵³ Even though the explanatory framework and its components showed how this landmark social policy ruling contributed to an overall positive outcome alongside the further elucidation of the Court’s constitutional practice, this was restricted in practical terms to future cases. This outcome confirmed the role capital plays, by showing that being a minority, no matter how active and mobilised, still amounts to being disadvantaged compared to the ever-so powerful Member States.

B. Von Colson and Harz: the underdogs

In contrast to Defrenne II, the Von Colson and Harz judgments are rather subdued, with less academic commentary surrounding them. Nevertheless, they left their mark as seminal judgments of the so-called second wave of constitutionalisation.¹⁵⁴ The latter revolves around the creation of doctrines, such as indirect effect and state liability, which further empowered national courts by providing them with ‘enhanced means of guaranteeing the effectiveness of [EU] law’.¹⁵⁵ Furthermore, the judgments showcase the dynamic application of the analytical framework depending on the type of social policy case in question. Here, key actors that played an instrumental role in the trajectory of the case were not the claimants’ activist lawyers or a civil society organisation, but, instead, national first instance courts. It was a different kind of mobilisation, with seemingly more powerful allies, in terms of the afore-mentioned actors’ standing and accumulation of capital in the legal field.

The Court in Von Colson introduced the doctrine of indirect effect, also known as the principle of harmonious interpretation. The doctrine crystallised a duty falling on the Member States, including national courts, to interpret relevant domestic law in light of EU law, insofar as possible.¹⁵⁶ It helped overcome issues of enforcement of provisions of EU law that did not fulfil the direct effect conditions and has been widely used as a workaround to the lack of horizontal direct effect of Directives. Additionally, indirect effect reinforced the perception of national courts as EU courts.¹⁵⁷ Harz was an almost identical judgment that was handed down on the same day.¹⁵⁸

Sabine Von Colson and Elisabeth Kamann were female social workers who applied for positions at the Werl prison in the German state of North Rhine-Westphalia. Despite them being qualified, their applications were rejected on grounds of their sex, officials claiming that it would be risky to appoint women to work in a men’s prison.¹⁵⁹ In Hamburg, Dorit Harz found herself in a similar position. A business graduate, she applied for a position at the private company Deutsche Tradax, but was informed by the manager that they would only consider men, due to the market in agricultural raw materials being male-dominated, coupled with the company’s strong presence in Saudi Arabia.¹⁶⁰ The weak societal position of the claimants in terms of capital is obvious.¹⁶¹ As women looking for employment, their economic capital was likely low. Despite being qualified, their gender put them at an undue disadvantage in the job market, recalling the gendered dimension of capital, including in its cultural and social forms.

The problem that led to the preliminary references before the CJEU was not the finding of discrimination on grounds of sex, which the national courts in Hamm and Hamburg established had taken place. Instead, it was that the national legislation setting out the available sanctions for victims of discrimination in recruitment under §611a II BGB (German Civil Code) provided only minimal compensation in connection with the application stage.¹⁶² Apart from its inability to act as an incentive to eliminate discrimination on grounds of sex in recruitment, the national courts were wary of the paragraph’s compliance with EU law, namely Directive 76/207/EEC, for whose transposition it had been enacted. This is what prompted the almost identical references, which gave rise to this cornerstone principle. Created by the CJEU as a way to compensate for the lack of direct effect of the Directive’s provision at issue,¹⁶³ the conceptualisation of indirect effect was, moreover, accompanied by a constitutional reasoning relying on the principle of sincere co-operation,¹⁶⁴ which in turn enriched the Court’s jurisprudence shaping up the proto-federal order of the EU.

Similar to what was the case when analysing Defrenne II, the aim of this section is not to offer a detailed account of the cases, which already exists, but to apply the explanatory framework so as to decipher what was so special about them that led the Court to hand down a judgment with constitutional implications. This becomes an even more interesting question if one considers the litigants’ low levels of capital as women who suffered discrimination. Unlike Defrenne II, where a lot has been written about the actors who supported the claimant, there is not as much information available in relation to Von Colson and Kamann, or Harz. The Harz judgment mentions that the regional department promoting equality for women (Leitstelle Gleichstellung der Frau) requested an explanation from the company, but at the ‘instigation of the plaintiff’.¹⁶⁵ Consequently, it appears that there was no well-orchestrated effort to support the claimants – at least not overtly. In Germany, campaigns by organisations such as the afore-mentioned regional department were generally disregarded at that time, highlighting weak levels of capital and mobilisation more broadly.¹⁶⁶

However, the question remains: how were Von Colson, Kamann and Harz able to precipitate paradigmatic change through their cases? It seems they acquired a different ally: the national courts adjudicating their claims. German courts had been especially active in bringing references on matters of EU equality case-law. Unlike other jurisdictions, such as the UK, first instance labour courts played an active role in taking advantage of the preliminary reference procedure, representing the majority of German references on gender equality in the 1980s and 1990s.¹⁶⁷ Von Colson and Harz originated in two of these courts: the first instance labour courts of Hamm and Hamburg respectively. Apparently, there was some court-based mobilisation in place.

This court-based mobilisation stemmed from a form of inter-court competition characteristic of Germany, which allowed the lower courts there to pit the CJEU’s approach to gender quality against that of the Federal Constitutional Court, or other higher courts for that matter, and, contrary to other jurisdictions such as Italy and Spain, to choose the CJEU approach as the way forward.¹⁶⁸ The inter-court competition could open up avenues for litigants and their lawyers, by making non-economic forms of capital more influential in the judicial decision-making process. Lower courts in Germany have been seen as occasional rebels to higher courts’ judgments,¹⁶⁹ which, in turn, could render them more receptive to novel claims by minorities and, consequently, the perfect arena for legal mobilisation. Indeed, when comparing lower labour courts ‘with active judges and lawyers’ in Germany to their UK counterparts, Kilpatrick characterises them as ‘innovative protagonists in preliminary reference dialogue and interaction with EC sources’.¹⁷⁰ Their receptiveness to innovation denotes how minority social influence can explain the outcome in Von Colson and Harz. Judicial support, no matter its underlying motives, also increased the minority’s levels of non-economic forms of capital in the legal field.

The court-based mobilisation was undoubtedly beneficial to the claimants. National courts were key in ensuring that their cases reached the EU legal field. At the same time, they constituted an actor within that field, according to earlier developments in the CJEU’s constitutional practice. The motives behind this mobilisation were likely mostly external. National courts must have wanted to ensure effective remedies for victims of discrimination. Indeed, the first instance labour court in Von Colson appeared to have inserted a pre-emptive statement of its position regarding the type of compensation that would be appropriate.¹⁷¹ The court in Harz also discussed leaving out §611a II BGB in favour of a remedy found elsewhere in German civil law.¹⁷² This approach can be perceived as a methodological tool on behalf of the national courts in their attempt to influence ‘the ensuing supranational legal debate and interpretation’.¹⁷³ The CJEU, especially in the first decades of its jurisdiction, was receptive to such tactics, to encourage the use of the preliminary reference procedure.

The Hamm and Hamburg first instance labour courts, therefore, not only mobilised but made themselves part of the minority, ‘attempting to circumvent a national provision clearly at odds with [EU] obligation in circumstances where the legislature has so far failed to amend the law’.¹⁷⁴ Given their depiction as rebels and their position in the judicial hierarchy, they were in a way a minority, with aligned interests, but perhaps different motives, with the minority formed by the litigants and their lawyers in instigating change. The two labour courts also employed a pattern characterised by Kilpatrick as same-issue repetition.¹⁷⁵ Indeed, the same issue was referred only months apart by labour courts located in different cities, in different Länder. Finally, when the judgments by the CJEU were handed down, German labour courts entered into a dialogue with each other ‘on the possibilities for judicial action within the terms of the German Civil Code’,¹⁷⁶ as a result of the newly minted interpretative obligation that formed the basis of indirect effect.

This sequence of events frames a concerted effort by the national courts which is not limited to isolated examples. The combination of the pre-emptive framing of references in Von Colson and Harz and the same-issue repetition pattern both point to tactics falling within the minority social influence paradigm:¹⁷⁷ namely, belief in a cause, perseverance and attempts at innovation by hinting at the desired end result, prompting the CJEU to find a way to achieve it. The Court responded positively to this call for innovation by adopting a new approach, manifested in the creation of another doctrine of constitutional magnitude.¹⁷⁸

The first instance labour courts were instrumental in enabling the claims of Von Colson, Kamann and Harz to precipitate change. Alongside them, there was a wave of legal mobilisation that dominated the CJEU at that time, and which boosted the non-economic forms of the litigants’ capital. Inspired by its judgment in Defrenne II, whose significance activists made sure to spread across Member States, ‘individuals and legal activists created the subsequent opportunity for the [CJEU] to further expand and elaborate these rights’.¹⁷⁹ National courts, at least in cases such as Von Colson and Harz, were taking part as active stakeholders in this arena of women’s transnational activism.¹⁸⁰ The result was yet another powerful judgment.

As ever, when first bringing a constitutional principle to light, the CJEU was somewhat Delphic, but the seeds for further elaboration were sown.¹⁸¹ The fact that Harz, a case involving a private employer, was not distinguished also paved the way forward for the use of the doctrine as a workaround to the lack of horizontal direct effect of Directives, hinting at the limitations of active minorities in fully controlling the outcome of their case. Both judgments were a victory for the litigants, who received appropriate compensation. They also represented an important moment for EU law, by allowing the Court to further elucidate crucial elements of the proto-federal order. Lastly, Von Colson and Harz showed how, even without substantial capital or well-orchestrated support at the pre-litigation stage, mobilisation can still occur through other stakeholders in the EU legal field, the national courts and minority social influence coming to play in such a context.

C. Francovich: the Last Supper

The final judgment that rounds off the analysis, Francovich, is more widely accepted as a landmark one, at least in comparison to Von Colson and Harz. Francovich prompted the Court to conceive yet another constitutional doctrine, that of state liability for breaches of EU law. The doctrine further empowers the private enforcement of EU law, by creating a remedy that until that point was not explicitly spelled out in the Treaties.¹⁸² In doing so, the Court followed its teleological interpretation of the Treaties, similar to Costa v ENEL and Van Gend en Loos, on which its reasoning in Francovich elaborated, rendering the latter their ‘ultimate consequence’.¹⁸³ It is characterised as the ‘Last Supper’ case of the case-study since it is widely perceived as the final judgment of the Court during the heyday of its proto-federal jurisprudence. Moreover, in English language textbooks of EU law, it also seems to have been superseded by Brasserie du Pêcheur.¹⁸⁴

Similar to Brasserie, Francovich also consisted of joined cases. On the one hand, there was Andrea Francovich, who was owed part of his wages by his former employer, CDN Elettronica, and was unable to enforce a prior judgment against the company since the bailiff assigned by the national court to collect the money was forced to submit a negative return.¹⁸⁵ On the other hand, there was Danila Bonifaci, with 33 co-workers. They had worked for another insolvent company, Gaia Confezioni, and discovered that, despite their wages owed having been proved as debt in the insolvency process, it was unlikely they would receive any of them.¹⁸⁶

The cases were lodged in neighbouring tribunals in the province of Vicenza. Not only that but the questions put forward before the CJEU were identical. The subject matter, although located within the realm of European social policy is also different from Defrenne II, Von Colson and Harz, in that it moves away from non-discrimination to stricto sensu employment law, namely Directive 80/987/EEC and the protection of employees in the event of the insolvency of the employer, which Italy had failed to implement.¹⁸⁷ The claimants here, workers whose wages were at least partly unpaid, continue the pattern of underprivileged litigants with limited amounts of mainly economic, but also likely other forms of, capital. Contrary to the preceding cases though, there is a male worker in the case of Francovich and a sizeable group of workers in Bonifaci, which was likely to put them at a better starting point, compared to Defrenne, Von Colson, Kamman and Harz. If nothing else, they had more power in numbers.

The proximity of tribunals and the fact that the questions referred were identical hint at an underlying mobilisation effort, which was instrumental in increasing the litigants’ social and cultural capital. Looking at the text of the judgment, one observes that the parties in both cases were represented by the same lawyers: Claudio Mondin, Aldo Campesan and Alberto dal Ferro of the Vicenza Bar. This is certainly not a coincidence. Indeed, Bartolini and Guerrieri note that Francovich was akin to a fictio litis, a case framed in such a way to prompt the national courts to make a preliminary reference to the CJEU.¹⁸⁸ The Italian lawyers actively sought the involvement of the CJEU in that case. In an interview, Campesan and Dal Ferro were candid about their intentions when putting the case together: ‘there are times when European judges limit themselves to being “notaries”, and take note of certain events; yet there are also others, in which they feel a deep urge towards the development of new principles: we were well aware that the latter was the case at that juncture, and that it could be turned to our favour.’¹⁸⁹ They saw litigation before the CJEU as an opportunity, hinting at how an active minority could influence the latter. Although not supported by a civil society organisation, such as Defrenne, it was still a form of legal mobilisation, despite the fact that ostensibly it is not a stereotypical case of cause-lawyering, which is usually deployed on the basis of altruistic motives to aid disadvantaged litigants.

From the information available, at least two of the lawyers, Campesan and Dal Ferro, graduated in law from the University of Padua in the mid-1980s. The university was one of the few in Italy at that time where a specialised course in EU Law was offered. Campesan and Dal Ferro not only attended this course but also wrote their dissertations in that area.¹⁹⁰ It seems that their belief in the transformative potential of EU law was ingrained in them by their professor, Paolo Gori, who had been a référendaire at the CJEU for 20 years (1958–1978), assigned to the three Italian judges.¹⁹¹ One of them, Alberto Trabucchi, was also a former law professor at the University of Padua.¹⁹² Trabucchi was one of the judges in Van Gend en Loos, one of the pre-eminent judgments that propelled the judicial constitutionalisation discourse to fame, as well as the Advocate General in Defrenne II. As a référendaire involved in the making of Van Gend en Loos, Gori played the role of activist by proxy¹⁹³ and was part of the Court’s legal revolution.¹⁹⁴ This context must have certainly been instrumental in forging Francovich and Bonifaci’s lawyers’ pro-European views.

Having a good understanding of EU law, a commitment to European integration and strong views on the opportunities they presented for litigation certainly equalled increased levels of cultural capital, of the kind that would prove useful in navigating the EU legal field, in light of the reluctance by the national courts hearing the cases to submit the preliminary references to the CJEU.¹⁹⁵ In framing their arguments, they used their specialist knowledge to focus on ensuring compliance with EU law and, more specifically, Directives, whose non-implementation was a pressing issue.¹⁹⁶ This EU-centred motivation in bringing the case forward denotes a strand of legal mobilisation based on external factors, which proved to be beneficial to the outcome of the case. Anecdotally, Campesan and Dal Ferro assert that their accumulated capital helped them mobilise and find an ally in Giuseppe Federico Mancini, the then Italian judge at the CJEU, a prominent labour law scholar with pro-European attitudes, whose views Francovich ostensibly echoed.¹⁹⁷

The foregoing passages paint a picture of an emerging form of mobilisation that transcended national boundaries. Moreover, the same-issue repetition found in the identical framing of the references is a sign of commitment to their goal. The latter is characteristic of active minorities, according to social psychology. Likewise, the lawyers representing this active minority wanted to innovate. They must have sensed that the claimants’ circumstances, constituting a clear example of injustice suffered because of non-compliance by a Member State with EU law, could be utilised as a powerful mechanism to gain the sympathy of the Court.¹⁹⁸ In other words, they had a clear view of the (legal) reality, they were committed to relying on state liability, and finally, unwilling to compromise by not pushing for the cases to reach the CJEU, or by looking at conventional and well-established remedies, all quintessential ingredients for a minority to exert influence on the majority.

Moving on to the legal front, although the lawyers’ first question began by inquiring about the possibility of relying on the direct effect of the Directive against the Member State that had failed to implement it, perhaps trying their luck but deep down knowing it was likely to fail, they put forward an alternative, making an open plea to the CJEU to continue building its role as guarantor of the effectiveness of EU law, by instituting an additional enforcement route for individuals.¹⁹⁹ Their closing statement is telling:

Is there a limit within which the arbitrariness of a Member State, which in any case is not permissible, can be contained? Can [the] [C]ommunity legal order remain indifferent when faced with actions brought by those who, without proper reason, have suffered prejudice because of the default of [a] [M]ember State?. .. Can the [C]ommunity legal order allow and justify a situation, an unlawful situation, to crystalize in time, forbearing to restore legality, without by so doing placing in doubt the very binding nature of the [D]irective?²⁰⁰

In putting forward their plea for innovation to the Court, they made sure it reverberated with the Court’s objectives and agenda for moving European integration forward.²⁰¹ This proved a successful strategy for their claimants, as well as the proto-federal order, resulting in the doctrine of state liability and, consequently, demonstrating a good example in successful minority social influence. As Ross observed, beyond granting individuals across the EU a right to reparation, in Francovich, ‘the Court has taken a significant step towards giving individuals the right to have the [EU] run in accordance with its constitution as developed by the Treaty and judicially-defined fundamental principles’.²⁰² Francovich kicked off as a fictio litis, which ended up becoming a social policy case of constitutional magnitude, perhaps the last big bang judgment completing the proto-federal order of the EU.²⁰³ Looking back, Francovich’s potential may have actually been too powerful, with the Court having to limit its scope later, coinciding with the end of the heyday of its proto-federal jurisprudence.²⁰⁴

6. Conclusion

The analysis in this article has offered fresh insights into the dynamics behind the Court’s constitutional jurisprudence by attempting to explain the influence social policy case-law exerted on the latter. It focused on four important judgments that showed the Court further developing its constitutional practice of European law, or, in other words, the proto-federal legal order of the EU.²⁰⁵ At the same time, the judgments also contributed positively to the development of European social policy. From solidifying and giving teeth to the principle of non-discrimination, to extensive obligations for compliance with EU social laws and the right to reparations for breaches by Member States, the effectiveness of European social policy improved. All this was achieved despite the traditionally low levels of capital held by the actors involved and the labour and non-discrimination strands of European social policy not traditionally being considered as an area of case-law conducive to the Court’s constitutional practice. The foregoing adds to the discussions that reject the narrative of the Court being single-handedly responsible for the transformation of Europe, approaching the latter as a collective process instead.²⁰⁶

To connect the dots, the article propounded an interdisciplinary explanatory framework, drawing on Bourdieu’s concepts of capital and field, the theory of legal mobilisation and Moscovici’s minority social influence. The framework was applied to the seminal judgments in Defrenne II, Von Colson, Harz and Francovich. These cases originated in national courts that were not the usual suspects, at least not in social policy matters, in sending preliminary references to the Court.²⁰⁷ Observing the interaction between the distinct actors in the EU legal field corroborated the plausibility of the propounded framework as offering a compelling explanation of the cases’ transformative impact on the constitutional jurisprudence of the Court and social policy more broadly. Mobilisation efforts supported by activist lawyers, with altruistic or EU-related motives, as well as national courts, helped frame the stakeholders lending their support to the examined cases, together with the latter’s litigants, as active minorities, which, through their commitment to innovation, could influence the Court’s judicial decision-making. They also created opportunities for the Court to show a more social face.²⁰⁸

The foregoing discussion does not mean that every minority, which encompasses most – if not all – social policy litigants, is bound to become influential. The inherently low levels of capital are problematic and point to the persistence of structural injustices. Moreover, mobilisation processes cannot compensate for low levels of capital in all cases. Simply put, not all litigants can enjoy the same level of support.²⁰⁹ Even if support was there, these supporting actors, be it lawyers, civil society organisations or courts would need to find an EU social norm whose interpretation is open to be challenged, so as to enable a potential preliminary reference to reach the CJEU. Given the relatively meagre positive integration in the area, this is not an easy task. Not only that, but importantly, the majority, which is the CJEU in this case, needs to be receptive to the minority view.

It is worth reminding that the examined cases were decided at a time where the CJEU’s contribution to the proto-federal order of the EU was at its heyday. Post-Maastricht, disintegrationist circles became more dominant, creating a new dynamic.²¹⁰ That dynamic, to some, signalled a new socio-political reality that hindered the furthering of the Court’s constitutional practice.²¹¹ Nevertheless, the judgments had a long-lasting effect. Following the Van Gend en Loos tradition, they ‘[took] European law out of the hands of politicians and bureaucrats and [gave] it to the people’.²¹² Indeed, the Court’s process to lay down the foundational elements of the proto-federal legal order of the EU had an impact in practice. Mobilisation leading to and following up on the Court’s judgments, coupled with fear that the latter’s powerful potential could be unleashed en masse, prompted Member States to comply.²¹³ This saved prospective social policy litigants from a myriad of hurdles to overcome, some of which, such as their traditionally low levels of capital, have been discussed above. The social policy judgments examined here, and the active minorities that were implicated therein, contributed to the Court’s constitutional practice and emancipated – at least partly – European social policy from the shackles of piecemeal policy-making during the proto-federal era.²¹⁴ For these reasons, the judgments, as well as the actors constituting these active minorities therein, should be celebrated as pioneers.