Polish Plumbers, the EU Constitutional Treaty, and the Principle of the Welfare State
It is most intriguing to write on the principle of the welfare state in the Draft Treaty Establishing a Constitution for Europe (Constitutional Treaty) at a time when the French and Dutch people have rejected this treaty mostly because of lack of satisfactory social standards therein1.
In France, the central metaphor used in the 'no' campaign was the Polish plumber, a symbol of the cheap workforce coming from Eastern Europe and taking all of the French jobs away from the French people2. Thus, the French have feared that the Constitutional Treaty would further neo-liberal ends and allow a laissez-faire approach in the Central and Eastern European labour markets3, resulting in social dumping in competition with the so-called old member states4.
My aim is to demonstrate that the French and the Dutch were right in fearing changes in their welfare model but were mistaken to believe that the Constitutional Treaty would not foresee the principle of the welfare state5. Thus, my thesis is that the Treaty Establishing a Constitution for Europe contains a principle of the reformed welfare state, also known as the reformed European social model6, which is meant to influence and change the domestic welfare state models of the member states gradually. The most drastic changes are to be seen in countries that have adopted the corporatist welfare state model7 - including France and the Netherlands - as this model differs the most from the model advocated by the European Union8.
In exploring the text of the Constitutional Treaty with regard to the principle of the welfare state I will proceed from the premise that the principle can be textually expressed by making reference to its constitutive elements - the principles of equality, solidarity and non-discrimination; protection of economic, social, and cultural rights; as well as declarations of improvement of living conditions and the well-being of individuals - or references to the social market economy.
After having completed the general textual analysis, I will also take a brief look at the possible implications of the inclusion of the reformed European social model in the Constitutional Treaty for Estonian welfare state arrangements.
The text of the Constitutional Treaty provides us with an excellent opportunity to understand what the European Union has really become like. As a result of the simplification and clarification process administered by the European Convention, references to the European social model have also become much more visible, in contrast to the earlier confusing and blurred picture.
As Andras Sajo has rightly pointed out, textual references to the social agenda of the European Union begin with the values and objectives of the European Union9. To name just a few, reference is made to social justice and protection, solidarity between generations, protection of children's rights, and the combating of social exclusion and discrimination10.
I would, however, begin my analysis with the Preamble of the Constitutional Treaty, as not infrequently the most creative judicial constructions have been inspired by preambles of constitutional texts. The second and third recitals of the Preamble stipulate that the European venture is 'based on the universal value of equality and 'continues along the path of [...] progress and prosperity for the good of all its inhabitants, including the weakest and most deprived, [...] open to culture, learning and social progress, [... it] wishes to strive for [...] solidarity.'
Although most of the principles and values referred to in the Preamble can be found in Title One of Part One of the Constitutional Treaty, the Preamble serves as a connecting point between the European integration thus far and the developments to be based on this treaty in the event it enters into force. Even if it might come as a surprise to some audiences that there is a distinct European social model enshrined in the European architecture, it is the result of decades of slow but firm progress in creating Social Europe. The reformed European social model, based on a delicate balance between the social end and competitiveness concerns, is the expression of the so?called Lisbon conclusions11. According to the conclusions, the main aim of 'becoming the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion' was to be achieved by 'modernising the European social model, investing in people and combating social exclusion.'12 Elsewhere in the Lisbon conclusions, the modernised European social model is also called an active and dynamic welfare state13. It must be noted, however, that nothing new was invented at the Lisbon European Council - a modernised European social model supportive of economic growth and competitiveness was suggested as early as in 1996 by the Comité des Sages14.
What is behind the rhetoric of 'progress and prosperity for the good of all its inhabitants, including the weakest and most deprived'? If the social and economic objectives collide, which set shall prevail? Is it a matter of case-by-case balancing, or does the principle of the active welfare state refer to the privileged status of social concerns in the European Union?
If the answer to this question has not been clear at all in the political process up to now15, the European Court of Justice seems to have made up its mind long ago. In the case of Deutsche Telekom AG v. Lilli Schröder16, the Court was faced with the need to interpret Art. 119 of the EC Treaty, a typically twofold Community law provision. The Court retained its earlier view and acknowledged that the principle of equal pay for men and women advances both economic and social objectives17. The Court went on to state that 'the Community [...] is not merely an economic union but is at the same time intended, by common action, to ensure social progress and seek constant improvement of the living and working conditions of the peoples of Europe, as is emphasised in the Preamble to the Treaty'18. Referring to earlier case law and relying on the status of the equal treatment principle as a fundamental human right, the Court then stipulated that the economic aim is secondary to the social aim pursued by the same provision19.
While reference was not made to the Preamble of the Constitutional Treaty in this case, the way the Court has used it in striking a balance between the social and economic objectives reinforces once again the role of a preamble in the interpretation of the establishing treaties. I would like to stress, however, that it depends greatly on the interpreting court whether and, if at all, to which extent the directive principles stated in the Preamble are relied upon or considered proper for this purpose. A good example is the Preamble of the Constitution of the United States, which, albeit containing an express reference to promotion of 'the general Welfare', has been used neither alone nor in combination with the later added Fourteenth Amendment's Equal Protection Clause to this effect20.
It must be kept in mind, however, that the Constitutional Treaty differs from its predecessors in that it has a considerably longer introductory part including, besides the Preamble, values and objectives of the European Union.
Besides showing the value judgements of the ECJ Justices, the same case is also illustrative as to the status and rank of social rights in the European Union. I will analyse this aspect of the Schröder case later on, when I come to dealing with economic, social and cultural rights in the Constitutional Treaty.
Besides the underlying value of human dignity, Art. I-2 of the Constitutional Treaty mentions the weighty values of equality and respect for human rights. These values are supposed to be common to the member states in a society in which pluralism, non-discrimination, tolerance, justice, solidarity, and equality between women and men prevail.
What is the role of the values of the EU as compared to the objectives of the same entity? There needs to be a reason behind mentioning more of less overlapping aims twice in a rational constitutional document.
Besides the solemn declaration of the common values dear to all Europeans, Article I-2 has a very pragmatic role to play - it serves as a filter for selection of prospective candidate countries21 and as a tool for disciplining the member states from too great deviations from the European traditions with a threat of suspension of the membership rights of the member state concerned22.
Thus in this context the subtle reference to a welfare state or a welfare society in Article I-2 attains great importance. While necessitating that the candidate countries indeed move towards an active welfare state/welfare society model, if there has been no such commitment before, the effect of Articles I-2 and I-59 on the member states of the European Union is not so clear. The latter provision becomes applicable only in respect of a member state in danger of deviating considerably from the values enshrined in Art. I-2 of the Constitutional Treaty.
Is suspension of membership rights applicable with regard to a member state that is in disagreement with the chosen social model and pursues a classical laissez-faire approach instead, but does fulfil all...