Protection of the social core of the EU Member States’ constitutions from lowering the level of social protection under the influence of the ordoliberal orientation of European integration

Abstract

Since its inception, the European Union has been characterized by the idea of ​​integration through the market, while social issues have seemingly been left to the jurisdiction of the member states. At the same time, negative integration through the jurisprudence of the Court of Justice of the European Union (devoted to ensuring the smooth functioning of the internal market) limited the autonomy of the Member States to protect social rights and define social policy. Namely, the goal of protecting the internal market led to the expansion of the Union's influence beyond the framework provided by the Treaties through the ‘spillover’ of European interests to other areas, such as social policy, but this time in the context of removing social obstacles to further (market friendly) integration. In such circumstances, there are three possible directions for further development of the relationship between the social embeddedness of Member States’ legal orders and the ordoliberal orientation of European integration. Namely, through: (a) active engagement of constitutional identity by national constitutional courts, as opposed to the ordoliberal orientation of the case law of the Court of Justice of the European Union, (b) strengthening the political decision-making process on social issues at the (primarily) national and (secondary) European level, (c) broader interpretation of the social provisions of the Treaties by European institutions.