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Table of Contents: I. Introduction. – II. Different levels of social mainstreaming and EU law. – II.1. The relationship between the economic and social at EU level. – II.2. Art. 9 TFEU. – III. A story of hope (I): Art. 9 TFEU, EU competition law, and the Four Freedoms. – III.1. The “social exemption” for collective bargaining. – III.2. Social interests as an exception ground to free movement. – IV. A story of hope (II): Art. 9 TFEU and EU legislative harmonisation. – IV.1. The internal market legal bases of inter alia art. 114 TFEU. – IV.2. The importance of art. 153 TFEU in making the EU internal market more socially inclusive. – V. Fears undermining the safeguarding of social interests in the EU single market through art. 9 TFEU. – V.1. Relatively vague and unclear wording of art. 9 TFEU. – V.2. The constitutionalisation of EU (free movement) law and the unclear scope of EU fundamental social rights protection. – V.3. The (sometimes) flawed reasoning in the case law on EU free movement law. – V.4. The question of competence, technological innovation and digitalization. – VI. Conclusion.
Abstract: In this Article, we assess to what extent art. 9 TFEU, which contains the social mainstreaming clause, may be used to shore up the social dimension of the EU Single Market. The story of hope of a more socially inclusive internal market starts with the “porous” EU internal market legal framework itself and ends with art. 153 TFEU and the European Pillar of Social Rights. Yet, there are also fears that, despite the language of social mainstreaming, the EU cannot deliver on the promise of art. 9 TFEU for various reasons, including the limited legislative competences of the EU to pursue social policies. While we mainly want to emphasize the story of hope, we will also look into the fears and how some of these could be addressed.
Keywords: art. 9 TFEU – social mainstreaming – EU Single Market – social policy – EU Charter – European Court of Justice.
European Papers, Vol. 7, 2022, No 3, pp. 1405-1429
ISSN 2499-8249 - doi: 10.15166/2499-8249/619
* Professor of Public Economic Law, Utrecht University, firstname.lastname@example.org.
** LLM graduate, Utrecht University, email@example.com.