SOCIAL LAW AND POLICY IN AN EVOLVING EUROPEAN UNION Social Law and Policy in an Evolving European Union Edited by JO SHAW OXFORD – PORTLAND 2000 Hart Publishing Oxford and Portland, Oregon Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA Distributed in the Netherlands, Belgium and Luxembourg by Intersentia, Churchillaan 108 B2900 Schoten Antwerpen Belgium © The contributors severally 2000 The contributors severally have asserted their rights under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing Ltd, Salter’s Boatyard, Folly Bridge, Abingdon Road, Oxford OX1 4LB Telephone: +44 (0)1865 245533 or Fax: +44 (0)1865 794882 e-mail: [email protected] WEBSITE: http//www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 1–84113–107–5 (hardback) Typeset by Hope Services (Abingdon) Ltd. Printed and bound in Great Britain on acid-free paper by Biddles Ltd, www.biddles.co.uk Contents Acknowledgements vii List of Contributors ix I. INTRODUCTION Introduction 3 JO SHAW II. SOCIAL POLICY IN A CLIMATE OF ECONOMIC CONSTRAINTS 1. The Integrationist Rationale for European Social Policy 17 PHIL SYRPIS 2. Social Solidarity: A Buttress Against Internal Market Law? 31 TAMARA HERVEY 3. Regulating Competitive Federalism in the European Union? The Case of EC Social Policy 49 CATHERINE BARNARD 4. The Constested Meaning of Labour Market Flexibility: Economic Theory and the Discourse of European Integration 71 SIMON DEAKIN AND HANNAH REED III. NATIONAL CULTURES, NATIONAL LAWS AND EU LAW AND POLICY 5. The Challenge of Europeanisation and Globalisation in the Field of Labour Relations: the Nordic Case 103 NIKLAAS BRUUN 6. Community Sex Discrimination in National Courts: A Legal Cultural Comparison 119 CHLOE J WALLACE 7. Addressing Gender in National and Community Law and Policy-making 135 FIONA BEVERIDGE, SUE NOTT AND KYLIE STEPHEN vi Contents IV. STRATEGIES FOR EQUALITY, EMPLOYMENT AND EMPLOYMENT EQUITY 8. Equality and Diversity: Anti-discrimination Law after Amsterdam 157 MARK BELL 9. Affirmative Action and the Court of Justice: A Critical Analysis 171 SANDRA FREDMAN 10. The Evolving European Employment Strategy 197 ERIKA SZYSZCZAK V. HIDDEN AGENDAS: FAMILY FORMATIONS AND HUMAN CAPITAL DEVELOPMENT 11. A Family Law for the European Union? 223 CLARE MCGLYNN 12. Transferability of Educational Skills and Qualifications in the European Union: The Case of EU Migrant Children 243 HELEN STALFORD 13. Consumption, Capitalism and the Citizen: Sexuality and Equality Rights Discourse in the European Union 259 CARL F STYCHIN VI. BUILDING THE NORMATIVE DIMENSION 14. Legitimising EU Law: Is the Social Dialogue the Way Forward? Some Reflections Around the UEAPME Case 279 NICK BERNARD 15. Converse Pyramids and the EU Social Constitution 303 BARRY FITZPATRICK 16. Europe’s Social Self: “The Sickness unto Death” 325 MIGUEL POIARES MADURO Index 351 Acknowledgements A number of the papers published in this volume were originally presented in earlier versions at a Conference on “The United Kingdom and the Social Dimension of the European Union: Perspectives and Prospects after the UK General Election and after the Treaty of Amsterdam”, held at the University of Leeds in November 1997. I am grateful to the primary sponsors of that event: the University Association for Contemporary University Studies, the University of Leeds Academic Development Fund and the European Commission. Further papers were presented at a meeting of the Society of Public Teachers of Law, EC Law Section, held in Oxford in March 1999, and at the Socio-Legal Studies Association Annual Conference in Loughborough in April 1999. A number of additional and complementary papers have been commissioned to complete the publication. Many thanks to all the contributors to the volume for bearing with some delays and for responding positively to most, if not quite all, of my sug- gestions. Many thanks also to Anthea Connolly for diligent editorial work. List of Contributors Catherine Barnard is University Lecturer in Law and a Fellow of Trinity College, Cambridge. Mark Bell is Lecturer in Law at the University of Leicester. Nick Bernard is Reader in Law at the Queen’s University of Belfast. Fiona Beveridge is Lecturer in Law, Feminist Legal Research Unit, University of Liverpool. Niklas Bruun is Professor of European Labour Law with special focus on Nordic labour relations at Hanken School of Economics in Helsinki and Arbetslivsinstitutet (National Institute for Working Life), Stockholm. Simon Deakin is Reader in Economic Law and Assistant Director of the ESRC Centre for Business Research at the University of Cambridge. Barry Fitzpatrick is Jean Monnet Professor of European Law, School of Public Policy, Economics and Law, University of Ulster. Sandra Fredman is Professor of Law at the University of Oxford and a Fellow of Exeter College. Tamara Hervey is Professor of Law at the University of Nottingham. Clare McGlynn is Reader in Law at the University of Durham. Sue Nott is Senior Lecturer in Law, Feminist Legal Research Unit, University of Liverpool. Miguel Poiares Maduro is Professor, Faculdade de Direito, Universidade Nova de Lisboa. Hannah Reed is Junior Research Fellow at the ESRC Centre for Business Research, University of Cambridge. Jo Shaw is Professor of European Law and Jean Monnet Chair of European Law and Integration at the University of Leeds. Helen Stalford is Lecturer in Law at the University of Liverpool. Kylie Stephen works in the Women’s Unit, Cabinet Office, UK Government. Carl F Stychin is Professor of Law and Social Theory at the University of Reading. x List of Contributors Phil Syrpis is Lecturer in Law at the University of Bristol. Erika Szyszczak is Jean Monnet Professor of European Law at the University of Nottingham. Chloë J Wallace is Lecturer in Law at the University of Leeds. PART I Introduction Introduction JO SHAW The overall aim of this collection is to explore the legal dimensions of European Union (“EU”) social policy. The term “EU social policy” as used here covers a rather loosely bundled group of topics. A non-inclusive list of the areas covered would include labour market policy, regulation of the employment relationship, the role of the social partners and of governmental authorities in industrial rela- tions, those aspects of the free movement of persons touching upon social issues, especially family policy and human capital formation and development, social inclusion and inter-regional redistributive policies, the impact of the internal market upon (national) welfare states, and policies and practices aimed at pro- moting principles of non-discrimination and societal and labour market equity. However, the book does not provide a comprehensive account of the legal aspects of the policies pursued by the EU separately or in partnership with the Member States, or indeed a systematic account of these policies themselves. It attempts the more limited task of reflecting upon the function, content, role and effects of law and legal institutions, instruments and practices in relation to this broad framework of EU social policy. This task necessitates steps beyond legal analysis alone, and requires the adoption of approaches—illustrated in many of the essays—which place law and legal institutions in their socio-economic and political context, which problematise the gap between law “in the books” and law “in action”. This is especially so where EU law requires national imple- mentation. Such approaches highlight the differentiating effects of national legal and other cultures, and reflect upon the ideological and normative premises which inform both the legal framework of the EU and its interpreta- tion by key actors such as the Court of Justice, national courts and the EU polit- ical institutions. More specifically, the objectives of the collection relate to the task of identi- fying and investigating tensions and contestations within EU social policy. Social law and policy are keenly contested domains. For example, should the EU really be concerned with “more than economics” at all, or is social policy prop- erly the domain of the Member States? What is the scope of EU social policy, and in particular what are the links between the so-called “European social model”, which is a rather diffuse amalgam of ideas and principles constructed principally by the Commission to justify social policy interventions on the part 4 Jo Shaw of the EU, and the labour market orientation for social policy which has tended to dominate in the Council since it began to fast-track the evolution of the Employment provisions introduced by the Treaty of Amsterdam in 1997? What or who are the relevant actors in EU social policy? What powers do they have and how do they apply those powers? What legitimacy can they claim? How are conflicts between them resolved? Who are the subjects of EU social policy? Can a concentration in terms of policy agendas upon a labour market orientation— and thus upon those who are actually or potentially employed—be successfully reconciled with the parallel increase in commitment claimed by the EU institu- tions to excluded groups such as those in poverty, children, third country nationals, racial and ethnic minorities and other