Implementing Social Europe in Times of Crises

Re-established Boundaries of Welfare?

Dorte Martinsen, Hans Vollaard

• Publisher: Routledge
• Year: 2017
• Topic: Politics & International Relations
• eBook ISBN:
  9781317509493
• Subtopic: Politics
• Index: Politics & International Relations

While the EU legitimacy crisis and the Great Recession prevail, certain European Union principles and policies have to be implemented in the member states. This volume explores the diverse processes, stages and subjects of implementation in a variety of social policies to identify different institutional dynamics and actor behaviours at play. The individual contributions examine the transposition of the patients' rights directive to the Europeanisation of pension reforms; the role of national parliaments in transposing social Europe; judicial Europeanisation; and the multi-level enforcement of EU decisions.

Theoretically, the contributions in this book highlights the fact that implementation is often conditioned by domestic politics or comes as a 'random walk' due to organisational and cognitive constraints. Empirically, the volume has three main findings. First, the constitutive components of the EU tend to have a contradictory impact on the EU's social policies and the national welfare systems. Second, crises influence the implementation of social Europe, at times leading to a modification of fundamental principles and content, but not across the board. Third, as a result, there is evidence of differentiated Europeanisation.

This book was originally published as a special issue of West European Politics.

Implementing Social Europe in Times of Crises: Re-established Boundaries of Welfare?

DORTE SINDBJERG MARTINSEN and HANS VOLLAARD

This volume examines the state of social Europe when European Union principles and policies have to be implemented in the member states while the EU legitimacy crisis and the Great Recession prevail. The volume explores diverse processes, stages and subjects of implementation in a variety of social policies to identify different institutional dynamics and actor behaviours at play. The individual contributions examine the transposition of the patients’ rights directive; the Europeanisation of pension reforms; the role of national parliaments in transposing social Europe; judicial Europeanisation; and the multi-level enforcement of EU decisions. Theoretically, the volume highlights that implementation is often conditioned by domestic politics or comes as a ‘random walk’ due to organisational and cognitive constraints. Empirically, the volume has three main findings. First, the constitutive components of the EU tend to have a contradictory impact on the EU’s social policies and the national welfare systems. Second, crises influence the implementation of social Europe, at times leading to a modification of fundamental principles and content, but not across the board. Third, as a result, there is evidence of differentiated Europeanisation.

In spring 2013, it was reported that public hospitals in debt-stricken member states of the European Union, such as Spain and Greece, are more reluctant to serve chronically ill citizens from other EU member states (Claes 2013). In violation of EU law on access to social security and healthcare, they prefer to spend their shrinking health budget on their own citizens. Meanwhile, the British, German and other governments seek to constrain ‘benefit tourism’ from poorer member states, such as Bulgaria and Romania, to limit access to their welfare and healthcare systems (Financial Times, 7 March 2013; EU Observer, 7 March 2013; Süddeutsche Zeitung, 23 March 2014). In addition, the Belgian government has increasingly informed out-of-work EU citizens that they no longer have a right to reside in Belgium because they have become an ‘unreasonable burden’ on the country’s welfare system (Financial Times, 16 March 2014). Apparently, the non-discrimination of EU citizens and the free movement of persons cannot count on overwhelming support across the EU, despite being key principles of EU law. However limited it has ever been, a social Europe has thus come under even more pressure. In response, the guardian of the EU treaties, the European Commission, has already taken steps to enforce compliance with EU law in this respect. In early summer 2013, the Commission referred the United Kingdom to the Court of Justice of the European Union (CJEU) on the UK ‘right to reside’ test for access to certain social security benefits and sent an open letter against Denmark concerning EU citizens’ access to Danish child benefits (European Commission, press release, 30 May 2013; EU Observer, 30 May 2013; Politiken, 18 June 2013). Though the European Commission finds benefit tourism ‘neither widespread nor systematic’, it has offered assistance to the member states to apply social security coordination rules and prevent any abuse of welfare systems (European Commission 2013). Upholding the existing social rights in the EU thus demands extra effort in the recent years of crisis.

This volume examines the current state of Social Europe as it manifests itself when EU principles and policies are implemented in the member states. EU studies have mainly concentrated on the first stage of implementation, where EU directives are to be transposed nationally, but have left the further stages of policy execution – enforcement and application (Treib 2006: 6) – largely unexplored. This volume includes a full-stage perspective of implementation to capture the de facto scope and limits of welfare regulation in the EU. In addition, this volume analyses how case law of the CJEU has been implemented, in part because the CJEU has been regarded as of considerable significance in the development of social policies in the EU (Leibfried and Pierson 1995). Furthermore, it not only offers the application and refinement of ‘traditional’ explanations of correctness and timeliness of the transposition to other forms and stages of implementation, but it has also been open to other implementation approaches from domestic policy analysis.

Empirically, this volume contributes to the state-of-the-art of studies of Europeanisation, implementation and welfare retrenchment by asking what the de facto reach of EU-induced change is when the EU is suffering from a legitimacy crisis and the Great Recession. Facing a critical juncture, we meet social Europe at a crossroads where established institutions are increasingly contested and have to prove their viability. The individual contributions in this volume take us through the different stages of the implementation processes. They present how the bits and pieces of social policies in the EU are transposed, Europeanised, politicised, enforced and applied through examinations of different cases, from labour inspectorates to healthcare and from workers’ co-determination to pension reforms. These processes of implementation and enforcement are where EU regulation meets the (national) boundaries of welfare and thus where social Europe faces its ultimate test. We expect the implementation of social Europe to be hampered in the context of debt problems and ensuing austerity measures as well as the legitimacy crisis. At the same time, these crises challenge the durability of cross-border social sharing in the EU. The examples mentioned above suggest that social sharing becomes more constrained in an enlarging union in times of crises. Therefore, the key question here is whether the implementation processes are fraught with the re-established and increasingly politicised boundaries of welfare due to enlargement ‘fatigue’ and Euroscepticism and are crippled by a (perceived or de facto) lack of budgetary means. If so, how institutionally viable and politically and administratively effective would a social Europe be in such a context?

In this introduction, we first define ‘social Europe’. We then present the state of social Europe, its historical achievements and current challenges. Next, we consider how the scope and limits of social Europe are de facto settled by means of national implementation processes, in practice defining the boundaries of welfare. We conclude the introduction by summarising the contributions to this volume.

Defining Social Europe

The concept of social Europe is often cited when the EU is compared with the socio-economic order of the USA (see Alber 2006). In the EU, improving living standards, supporting the socio-economically weak and equalising chances in life (Stuchlík and Kellermann 2009: 3) are more of a public concern. Formally regarded, the organisation of welfare in the EU continues to be a primary national prerogative, and member states have acted as very sceptical gatekeepers when welfare initiatives have had to be discussed in the Council of Ministers (Leibfried 2010). Throughout the decades of European integration, welfare policies have been one of the few policy areas where national governments have usually resisted integration, not least because of the electoral importance of most social programmes (Leibfried 2010). In contrast, the creation of a European market with free movement of goods, capital, services and workers has proceeded much further. A lasting asymmetry has thus been created:

the course of European integration from the 1950s onward has created a fundamental asymmetry between policies promoting market efficiencies and those promoting social protection and equality. (Scharpf 2002: 665)

Firmly enshrined in the EU treaties, the removal of barriers to freedom of movement to create an internal market (so-called negative integration) has been pursued by the individual member states, the European Commission and the Court of Justice of the European Union with relative ease. It has unsettled the territorial limitations on the beneficiaries, consumption, production and administration of welfare (Leibfried and Pierson 1995: 50ff.). Meanwhile, market-correcting, ‘positive’ integration through decision-making by the EU actors collectively has encountered many more obstacles and joint decision traps to overcome before a compromise could be established (Martinsen and Falkner 2011). Bypassing EU decision-making, such as in CJEU case law, soft law and framework legislation, did not allow for large-scale harmonisation and redistribution among increasingly diverse welfare regimes in the enlarging EU (Obinger et al. 2006). Consequently, the integration of national welfare states into a full-fledged European system has remained out of reach. Meanwhile, as part of the negative integration process to remove social barriers in the EU market, free movement principles and economic liberties prevail over national social rights, obligations and standards in the EU. Social policies have been used to foster loyalty and solidarity within national states, not least because of their compulsory nature (Ferrera 2005). A borderless Europe may thus weaken national social policies as an instrument of statecraft, despite its lack of Union social policies to nurture European loyalty and solidarity (Van Kersbergen 2006). ‘Social integration’ in the EU therefore means constrained policy options for the national welfare states rather than a positive build-up of a European social polity (Leibfried and Pierson 1995: 65; Maduro 2000: 327; Scharpf 2002: 666). Due to these different dynamics, the making of social Europe at both the national and European levels has been of a contested nature.

To take full account of these dynamics, this volume takes a broad view of social Europe’s evolution. It thus refers to EU law that establishes supranational social policies and to EU law affecting social rights and policies in the member states. In this way, it defines social Europe in a two-level perspective: (1) the protection and extension of social rights by means of positive integration and market correcting/restricting policies and (2) the other side of the coin of European integration, the intervention in national social policies to enforce the market and promote free movement, free competition and non-discrimination. This definition thus covers integration in the social domain as a result of not only market-enforcing and market-restricting integration but also integration stemming from the EU principle of non-discrimination (Höpner and Schäfer 2012). Whereas the imperatives of market correction and non-discrimination may establish (European) social rights, market enforcing and non-discrimination tend to weaken the spatial boundaries of the welfare state and challenge the traditional allocation principles for social sharing (Ferrera 2005, 2012b). The scope and limits of social Europe depend on how the balance is formed between those different integration imperatives and on how they are implemented. In regard to ‘social policy’, we define it according to the broad spectrum of welfare policies to improve living standards, enhance the position of the socio-economically disadvantaged and equalise chances in life, which includes labour market policies, healthcare, gender equality and welfare redistribution policies.

The State of Social Europe: Historical Achievements, Paramount Challenges

Scholars continue to disagree on the state of social Europe. One group of scholars has pointed to the social achievements of the European Union and claimed that it is misleading to consider the EU a neoliberal construction aiming to dis-embed markets from any restraint on competition. EU legislation regarding social policies has been growing since the 1990s, not least due to the increasing use of qualified majority voting. The larger involvement of employers’ federations, trade unions and the European Parliament may enhance the legitimacy of EU social legislation. In particular, the CJEU has been significant in the creation of social rights, thereby enabling individuals and groups to access rights at both the national and EU level (Cichowski 2007). Legal integration in the European Union has embedded the free market, and the CJEU has ‘emerged as a regulatory arbiter of compromises between international openness and social concerns’ (Caporaso and Tarrow 2009: 595). Judicial decision-making is key to the spread of social rights (Caporaso and Tarrow 2009). The work of Caporaso and Tarrow, however, does not examine whether the identified judicial embedding of the market is subsequently implemented at the national level. Thus, the ultimate effectiveness of legal integration is not explored but merely assumed.

Another group of scholars maintains ‘social Europe’ as politically weak or ‘the road not taken’ (Höpner and Schäfer 2012; Leibfried 2010; Scharpf 2002: 645; Von Maydell 1999: 9). Judicial law-making may expand individual rights, but there are clear limits to what can be achieved by legal integration because social sharing in the EU cannot be established by judges (Höpner and Schäfer 2012: 450). According to Höpner and Schäfer, CJEU case law correcting the market or enhancing non-discrimination is only a limited part of the integration processes that cannot embed markets sufficiently. Market enforcing dynamics are significantly at play in the EU, and their impact on national and European social policies is considerable (Höpner and Schäfer 2012: 441–5).

Thus, social Europe consists of contradictory dynamics that may in part explain its contested nature. From a historical perspec...

Table of contents

• Cover
• Half Title
• About the Series
• Title
• Copyright
• Contents
• Citation Information
• Notes on Contributors
• 1. Implementing Social Europe in Times of Crises: Re-established Boundaries of Welfare?
• 2. Transposition and National-Level Resources: Introducing the Cross-Border Healthcare Directive in Eastern Europe
• 3. Bounded Rationality in Transposition Processes: The Case of the European Patients’ Rights Directive
• 4. Altered Europeanisation of Pension Reform in the Context of the Great Recession: Denmark and Italy Compared
• 5. Clawing Back Lost Powers? Parliamentary Scrutiny of the Transposition of EU Social Policy Directives in the Netherlands
• 6. Judicial Europeanisation: The Case of Zambrano in Ireland
• 7. Europeanisation with Many Unknowns: National Company Law Reforms after Centros
• 8. Enforcing Social Europe through Labour Inspectorates: Changes in Capacity and Cooperation across Europe
• 9. Social Europe and its Components in the Midst of the Crisis: A Conclusion
• Index