Social Rights and Market Freedom in the European Constitution: A Labour Law Perspective – By Stefano Giubboni

• Date: 01 May 2007
• DOI: http://doi.org/10.1111/j.1468-0386.2007.00372_1.x
• Published date: 01 May 2007

BOOK REVIEWS

Social Rights and Market Freedom in the European Constitution: A Labour Law

Perspective. By Stefano Giubboni. Cambridge: Cambridge University Press, 2006.

xxviii +290pp. Hb. £60.00.

Giubboni’s ambitious book starts from the premise that the European integration

project was first established on the basis of a fragile compromise between the supra-

national drive for economic liberalism and the determination of Member States to

protect their national systems of labour law, industrial relations and social security.

Construction of a ‘European economic constitution’ should not lead to the unpicking

of the social core of national constitutional settlements. Liberalism was ‘embedded’

into the integration process but this was not incompatible with domestic social soli-

darity. The central tenet of the book is that liberalism now has to be ‘re-embedded’

because the founding settlement has been undermined by a series of economic and

political transformations. Negative integration, including what is described as the

‘infiltration’ of internal market and competition law into national systems, poses a

consistent threat to the viability of collective organisation (often monopolies) of pen-

sions, employment agencies or ‘services of general interest’. The Posted Workers

Directive, the contortions over the recent Services Directive and, after the completion

of this book, the rejection of the Constitutional Treaty, have highlighted both the

continuing, and indeed increasing, sensitivity of this issue and the robustness of

national social solidarity. Positive integration has increased regulatory competition

between states but this does not necessarily lead to deregulation of labour laws.

This book would have benefited from a more direct analysis of the relationship

between Community and national labour laws in the context of the integration process.

The author suggests that there is a significant difference between early Community

legislation based on upward harmonisation and later measures based on establishing

minimum standards. This distinction is somewhat semantic and does not address the

principle of non-retrogression that is inherent in Article 137(4) of the EC Treaty and

individual Community labour laws. Why was it necessary, if at all, for the Community

to introduce a measure such as the Working Time Directive and how does such

complex and internally contradictory regulation affect the equilibrium of national

regimes?

In the second part of the book the author searches for the means by which there can

be a recalibration of the economic/social balance to achieve more of an equilibrium,

pointing to the adoption of various types of alternative methods of positive integration.

The merits of reflexive harmonisation (or framework labour laws), the open method of

coordination, and procedural laws or agreements initiated by the European social

partners, are each considered in turn. The effectiveness of such methods depends on the

political will of the actors involved and a high level of political and social consensus.

The author also suggests that any social deficit at the national level can be offset by firm

local enforcement of the EU Charter of Fundamental Rights, notwithstanding its

uncertain legal status and substantive limitations.

European Law Journal, Vol. 13, No. 3, May 2007, pp. 434–439.

© 2007 The Authors

Journal compilation © 2007 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA