A New Alliance of De-legalisation and Legal Formalism? Reflections on Responses to the Social Deficit of the European Integration Project⋆

This paper will cover a wide range of issues. It will start with a reconstruction of the European Community’s ‘social deficit’, arguing that a credible response to this deficit would be a pre-condition for the democratic legitimacy of the deepened integration project. Such a response can be developed in a re-conceptualisation of European law as a new type of supranational/trans-statal conflict of laws – this is the thesis defended in the second section. This vision is contrasted in the third section, first with the steps towards Social Europe envisaged in the Draft Constitutional Treaty, and then with the messages of the recent judgments of the European Court of Justice (ECJ) in Viking and Laval. It goes without saying that the theoretical premises of the argument, let alone its many interdisciplinary dimensions and empirical background, can often only be signalled, but not developed systematically. " I wish to submit is that the ‘social embeddedness’ thesis can help us to understand why Europe has developed an ever more sophisticated regulatory machinery entrusted with the management of the internal market – and why the social deficit of the European construction has become a prominent part of the European agenda.