Responsive Adjudication and the ‘Social Legitimacy’ of the Internal Market

Date01 September 2016
Published date01 September 2016
Responsive Adjudication and the Social
Legitimacyof the Internal Market
Jotte Mulder*
Abstract: This article is concerned with the social legitimacy of EU free movement
adjudication. What does sociallegitimacy entail within themulti-level embedded liberalism
constructionof the internal market?How can the objective of free movement(market access)
and a commitment to social diversity both be pursued without one necessarily trumping the
other? This article seeks to contribute to these questions on the basis of a discussion of what
has come to be known as the argument from transnational effects and the development of an
adjudicative model that can be termed socially responsive. On the basis of an ideal types
analysis of the case law of the Court, it is concluded that responsiveness to Member State
social context is lacking in any coherent form in the case law of the Court of Justice of the
European Union. However, a responsive model of adjudication can be (re)constructed by
streamlining the identied ideal type adjudicative rationales. In the midst of this process of
discovery, an operational rationale to establish the substantive (social) scope and reach of
the internal market shall be submitted.
I Introduction
The EU Treaties set out a joint commitment to intra-European free trade within open mar-
kets that ensure the free movement of goods, capital, services and workers whilst Member
States retain control over domestically shaped interests that may override market integra-
tion objectives. The challenge that results from these two fundamental choices is how to rec-
oncile freedom of (economic) movement with the social protection and regul ation
structures of Member States. This dual commitment has been aptly described as the EU
lawscore nucleus of shared values, where uniformity must be ensured amongst all Mem-
ber States, while at the same time accommodating the value diversity that stems from the
variegated cultural, historical and social heritage of the Member States.
Aif not the
main point of contention within EU law is where exactly the dividing line between shared
nucleus and value diversity falls. This remains the subject of much controversial case
This article unveils the adjudicative approaches governing the conict constellations
generated by the dual commitment of EU law. After showing that the rationales put
* Assistant professor at the Europa Instituteof Utrecht University (PhD, EuropeanUniversity Institute). This
paper was presented in thecontext of the annual EUI, EU law workshop and beneted from the comments
received then. I am particularly grate ful to Loïc Azoulai, Gareth Davies, Christ ian Joerges, Claire
Kilpatrick, Giorgio Monti and the two anonymous revie wers for penetrating comments on earlier drafts.
The commentsof Agustín José Menéndez have been invaluable. All remainingaws remai n for the author.
K. Lenaerts, The Courts Outer and Inner Selv es: Exploring the External and Internal Legitimacy of the
European Court of Justice, in H. Clemens (ed.), Judging Europes Judges: The Legitimacy of the Case Law
of the EuropeanCourt of Justice (Hart Publishing,2013), 1360, at 15.
S. Weatherhill, The Courts Case Law on the InternalMarket: A CircumloquaciousStatement of the Result,
Ratherthan a Reason for Arriving at It?,inH.Clemens(ed.),Judging EuropesJudges:TheLegitimacyofthe
Case Law of the European Court of Justice (Hart Publishing, 2013),87108, at 104.
European LawJournal, Vol. 22, No. 5, September 2016,pp. 597620.
© 2017 John Wiley& Sons Ltd. 9600 Garsington Road,Oxford, OX4 2DQ, UK
and 350 Main Street,Malden, MA 02148, USA
forward by the supranational judges are far from satisfactory, an alternative argumentative
approach is put forward.
The more controversial case law of the Court of Justice is often criticised on account of
its ignoring the fundamental social commitmentsof the Member States. On this basis, EU
law is frequentlyconsidered not to stand to its dual commitmentto market integration and
social protection and c onsequently to risk lo sing social legitimacy.
In order to
contextualisethe notion of social legitimacybriey, it is helpful to take a step back in time
and look at the post-1945 world economy, which has been described and is generally un-
derstood as embodying a particularsocial bargain.
Policymakerswere looking to reinvig-
orate the world economyon the basis of increased internationaltrade within and between
open markets. Thiswas, however, to be accompanied by the establishment of institutional
structuresthat would explicitly allowfor the mitigation of the potentialadverse social con-
sequences of increased international trade and competition.
It was a widely shared belief
that the absenceof such a compromise had led to thecollapse of international cooperation
in trade and macroeconomic policy duringthe 1920s and 1930s.
It was assumedthat mar-
kets became unsustainable if populationscame to regard them as illegitimate.It would ap-
pear that the post-1945 U.S. and European policymakers agreed to some extent with this
basic concern.
It was considered a necessity to reconcile the need for open markets and
vigorous trade with the prevailing values of the social-economic systems that such increased
With regardto the multilevelcontext, EU legitimacydiscourses canoften be traced backto three core concepts:
inputlegitimacy, throughputlegitimacyand outputlegitimacy. Theconventional meaningof these concepts
is to see inputasthe potential opennessof the decision-makingprocess for citizens, throughputas the quality
of the processesthat subsequentlyprocess the input andoutputas the quality of the resultof the decision mak-
ing process. See for a discussionand overview of the conventional concepts V.A. Schmidt, Democracyand
Legitimacy in the European Union Revisited: Input,Output and Throughput ”’,(2013)61Political Studies,
222.As will become apparentin this discussion,social legitimacyisconcerned, specically,with the original
multilevel governance context of the EU and the constraints and legitimate reach of the supranationalwith
regard to the national governance orders.See for other takes on the meaning of social legitimacy within the
internal market G. Davies,Democracy and Legitimacy in the Shadow ofPurposive Competence,(2015)21
European Law Journal,222 and G. Davies,Internal market adjudication and thequality of life in Europe,
EUI Working Paper 2014/07. A polit ical theory outlook in F.W. Scharpf , Legitimacy in the Multilevel
European Polity,(2009)1European PoliticalScience Review,173204. See for othertakes on legitimacy for
exampleG. De Búrca, The Quest for Legitimacyin the European Union,(1996) 59 The Modern Law Review,
349376. On the more general democratic decit discussion of the Union, see A. Menon and S. Weatherill,
Transnational Legitimacyin a GlobalisingWorld: How the European Union Rescues Its States, (2008) 31
West European Politics,397416; S. Hix and A. Follesdal, Why There Is a DemocraticDecit in the EU: A
Response toMajone and Moravscik, (2006)44 Common Market Studies,533
J.G. Ruggie, International Regi mes, Transactions and Change: Embe dded Liberalism in the Postwar
EconomicOrder, InternationalOrganization, (1982)36 International Regimes,379415, at 392: [To] sayany-
thing sensibleabout the content of international economicorders and about the regimes that serve them,it is
necessaryto look at how power and legitimatesocial purpose become fused toproject political authorityinto
the internationalsystem.Applied to the post-World War II context, this argument leads me to characterise
the international economicorder by the term embedded liberalism.
Ibid., at 388.See also R. Nurkse, League of Nations Report: InternationalCurrency Experience:Lessons of the
Inter-WarPeriod (Report of the Leagueof Nations, Economic, Financial and TransitDepartment, 1944)
Ibid.,at 392; also S. Marglin and J. Schor,The Golden Age of Capitalism:Reinterpretingthe Postwar Experience
(Oxford UniversityPress, 1990). One of the proponents of this idea was KarlPolanyi. In his 1944 book, The
Great Transformation,heintroducedtheideaofembeddedversus disembeddedsocio-economic orders,K.
Polanyi, The Great Transformation: The Politi cal and Economic Origins of our Time (The Beacon Press,
1944, 2nd edn.reprinted in 2001).
J. Ruggie, TakingEmbedded Liberalism Global:The Corporate Connection,Institute for International Law
and Justice WorkingPaper (New York University Schoolof Law, 2003) and J. Ruggie, Multilateralism: The
Anatomy of anInstitution,(1992)46International Organization,561598.
Social Legitimacy of EU Free Movement AdjudicationSeptember 2016
© 2017 John Wiley& SonsLtd.598

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