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 legitimacybrieﬂy, 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
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, ‘throughputlegitimacy’and ‘outputlegitimacy’. Theconventional meaningof these concepts
is to see ‘input’asthe potential opennessof the decision-makingprocess for citizens, ‘throughput’as the quality
of the processesthat subsequentlyprocess the input and‘output’as 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,
2–22.As will become apparentin this discussion,‘social legitimacy’isconcerned, speciﬁcally,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,2–22 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,173–204. See for othertakes on legitimacy for
exampleG. De Búrca, ‘The Quest for Legitimacyin the European Union’,(1996) 59 The Modern Law Review,
349–376. On the more general democratic deﬁcit 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,397–416; S. Hix and A. Follesdal, ‘Why There Is a DemocraticDeﬁcit 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,379–415, 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 international–system.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,heintroducedtheideaof‘embedded’versus ‘disembedded’socio-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,561–598.
Social Legitimacy of EU Free Movement AdjudicationSeptember 2016
© 2017 John Wiley& SonsLtd.598