EMU and the Shift in the European Labour Law Agenda: From ‘Social Policy’ to ‘Employment Policy’

This article examines the interaction between EMU and the European Union (EU) employment strategy and its implications for law. It focuses on the importance of EMU as a catalyst in the development of the EU's social and employment policy in the years following the Treaty on European Union in 1992, up to the inauguration of a new employment policy in the Treaty of Amsterdam. In analysing the EU's discourse on labour market regulation, it is arguable that a shift has occurred in the EU's position on the ‘labour market flexibility’ debate: that the EU institutions are more readily accepting of the orthodoxy that labour market regulation and labour market institutions are a major cause of unemployment within EU countries and that a deregulatory approach, which emphasises greater ‘flexibility’ in labour markets, is the key to solving Europe's unemployment ills, along with macroeconomic stability, restrictive fiscal policy and wage restraint. As the EU's employment strategy has matured, this increased emphasis on employment policy has come to displace discourses around social policy. This change in emphasis has important implications for EMU since it signals a re‐orientation from an approach to labour market regulation which had as its core a strong concept of employment protection and high labour standards, to an approach which prioritises employment creation, and minimises the role of social policy, since social policy is seen as potentially increasing the regulatory burden.     

Corporate Social Responsibility European Style

Abstract: The concept of corporate social responsibility (CSR) emerged in the official discourse of the EU in 2000. This article explains how, while CSR may have been initially an idea about the scope of the responsibility of companies towards their environment, it has now become a process in which the representatives of the business community have come to occupy the main role, and whose purpose is to promote learning among business organisations, rather than to identify the components of a regulatory framework for CSR. The central question now, therefore, is whether the so‐called ‘business case’ for CSR is strong enough, so that we may hope that the forces of market will suffice to encourage companies to behave responsibly, over and above their obligation to comply with their legal obligations. The article shows, however, that this case rests on certain presuppositions about markets and the business environment, which cannot be simply assumed, but should be affirmatively created by a regulatory framework for CSR. Following the introduction, it proceeds in four stages. First, it examines the development of CSR in the EU. Second, it offers a critical examination of the so‐called ‘business case’ for CSR, taking into account the growing diversity within the enlarged EU. It then discusses, as an alternative, what a regulatory framework for CSR could resemble, highlighting a number of initiatives which have been taken in this regard by the EU. The article finally concludes that, since the failure of the European Multi‐Stakeholder Forum on CSR in 2004, the debate has made a turn in the wrong direction, both because of the mistaken view that the establishment of a regulatory framework for CSR would threaten the competitiveness of European companies, and because of the naive (and contradictory) view that reliance on market mechanisms will suffice to ensure that corporations will seek to minimise the negative social and environmental impacts of their activities, even in circumstances where they are not legally obliged to do so.     

The Meat in the Sandwich: Welfare Labelling and the Governance of Meat‐chicken Production in Australia

This article critically examines the degree to which higher‐animal welfare label claims change animal welfare regulation and governance within intense meat‐chicken ('broiler') production in Australia. It argues that ethical labelling claims on food and other products can be seen as a ‘governance space’ in which various government, industry and civil society actors compete and collaborate for regulatory impact. It concludes that ethical labelling can act as a pathway for re‐embedding social concerns in the market, but only when it prompts changes that become enshrined in standard practice and possibly the law itself. Moreover, the changes wrought by ethical labelling are small and incremental. Nevertheless, labelling may create ongoing productive tension and ‘overflow’ that challenges the market to listen to and accommodate actors (including animals) on the margins to create ongoing incremental changes.     

The Origins of the ‘Nonmarket Economy’: Ideas,Pluralism & Power in EC Anti‐dumping Law about China

‘Market’ and ‘market economy’ exercise a powerful, even magnetic grip on our collective imagination. But what do we mean by ‘market economy’? Does it make sense to speak of a ‘nonmarket economy’, and if so, what does it mean? How are the ideas of ‘market economy’ and ‘nonmarket economy’ related? Focusing on EC anti‐dumping law, this article seeks to answer these questions. It argues that the legal concept of ‘nonmarket economy’ in EC anti‐dumping law has been socially constructed, by means of relations among a plurality of institutional and normative sites, as part of a changing configuration of legal ideas in specific historical circumstances, and in contexts of political, economic, social, and symbolic power. This argument is articulated in three parts. First, the concept of ‘nonmarket economy’ in EC anti‐dumping law, though drawing on earlier elements, had its main roots in the early Cold War. Second, starting in the 1960s, the GATT multilateral negotiating rounds began to define more specific international rules of the game, but a variety of more localised processes played essential roles as forces of change. Of special importance were, first, the tension between legislative rules and administrative discretion in the United States, and, second, the Europeanisation of foreign trade law in the course of European integration. Third, the EC law concept of ‘nonmarket economy’ was born in the late 1970s. The main reasons were changes in the international anti‐dumping law repertoire, specific ideas in Europe about comparative economic systems, and the perceived emergence of new economic threats, including exports from China.     

Social Insurance Monopolies in Community Competition Law and the Italian Constitution: 'Practical' Convergences and 'Theoretical' Conflicts

An Italian judge, following earlier suggestions of the national antitrust Authority, has referred to the Court of Justice for a preliminary ruling under Article 234 EC Treaty two questions on the interpretation of Articles 81 and 86 of the EC Treaty. With those questions, raised in an action brought by a self‐employee against the Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (INAIL) concerning the actor's refusal to pay for social insurance contributions, the Tribunale di Vicenza has in summary asked the Court of Justice whether the public entity concerned, managing a general scheme for the social insurance of accidents at work and professional diseases, can be qualified as an enterprise under Article 81 EC Treaty and, if so, whether its dominant position can be considered in contrast with EC competition rules. This article takes this preliminary reference as a starting point to consider in more general terms the complex constitutional issues raised by what Ge´rard Lyon‐Caen has evocatively called the progressive ‘infiltration’ of EC competition rules into the national systems of labour and social security law. The analysis is particularly focused on the significant risks of ‘constitutional collision’, between the ‘solidaristic’ principles enshrined in the Italian constitution and the fundamental market freedoms protected by the EC competition rules, which are implied by the questions raised in the preliminary reference. It considers first the evolution of ECJ case law—from Poucet and Pistre to Albany International BV—about the limits Member States have in granting exclusive rights to social security institutions under EC competition rules. It then considers specularly, from the Italian constitutional law perspective, the most recent case law of the Italian Constitutional Court on the same issues. The ‘contextual’ reading of the ECJ's and the Italian Constitutional Court's case law with specific regard to the case referred to by the Tribunale di Vicenza leads to the conclusion that there will probably be a ‘practical convergence’in casu between the ‘European’ and the ‘national’ approach. Following the arguments put forward by the Court of Justice in Albany, the INAIL should not be considered as an enterprise, in line also with a recent decision of the Italian Constitutional Court. And even when it was to be qualified as an enterprise, the INAIL should in any case be able to escape the ‘accuse’ of abuse of dominant position and be allowed to retain its exclusive rights, pursuant to Article 86 of the EC Treaty. This ‘practical convergence’in casu does not, however, remove the latent ‘theoretical conflict’ between the two approaches and the risk of ‘constitutional collision’ that it implies. A risk of a ‘conflict’ of that kind could be obviously detrimental for the European integration process. The Italian Constitutional Court claims for herself the control over the fundamental principles of the national constitutional order, assigning them the role of ‘counter‐limits’ to the supremacy of European law and to European integration. At the same time, and more generally, the pervasive spill over of the EC market and competition law virtually into every area of national regulation runs the risk of undermining the social and democratic values enshrined in the national labour law traditions without compensating the potential de‐regulatory effects through measures of positive integration at the supranational level. This also may contribute to undermine and threaten, in the long run, the (already weak) democratic legitimacy of the European integration process. The search for a more suitable and less elusive and unilateral balance between social rights and economic freedoms at the supranational level should therefore become one of the most relevant tasks of what Joseph Weiler has called the ‘European neo‐constitutionalism’. In this perspective, the article, always looking at the specific questions referred to the Court of Justice by the Tribunale di Vicenza, deals with the issue of the ‘rebalance’ between social rights and economic and market freedoms along three distinct but connected lines of reasoning. The first has to do with the need of a more open and respectful dialogue between the ECJ and the national constitutional courts. The second is linked to the ongoing discussion about the ‘constitutionalization’ of the fundamental social rights at the EC level. The third finally considers the same issues from the specific point of view of the division of competences between the European Community and the Member States in the area of social (protection) policies.     

A Fresh Look at Stock Market Short‐termism

In this article, we develop a novel understanding of stock market short‐termism as a social phenomenon. Contrary to formerly popular academic belief, short‐termism is a problem that is highly unlikely to be structurally self‐correcting. An important driver of short‐termism typically elided within standard legal‐academic analyses is the informational centricity of modern stock markets, and resulting pressure on corporate managers to generate fresh ‘news’ indicative of perceived business ‘progress’. We highlight the growing enthusiasm of policy‐makers for a discriminatory ‘two‐tiered’ approach to public company investor relations. Accordingly, long‐term and committed investors are expected to be brought into the company's governance ‘inner circle’, while other investors are implicitly relegated to lowertier ‘outsider’ status. We argue that this supports a discriminatory approach to the allocation of voting entitlements in newly listing companies, enabling committed investors to develop cooperative and sustained governance relations with management unencumbered by ‘outside’ stock market pressures for short‐term financial‐performance outcomes.     

Socially Responsible Private Regulation: World‐Culture or World‐Capitalism?

This article analyzes the phenomenon of “corporate social responsibility” (CSR; specifically: social private regulation) in light of two sociological paradigms of globalization: “world‐culture” and “world‐capitalism.” The study treats three analytically distinct features of CSR: the political contestation over its meaning, the role of business studies in transforming it into a managerial model, and its consolidation as a market of authorities. The study finds that (1) while CSR may be theorized as a emergent “world cultural” model, the culture paradigm does not take sufficient account of the role of corporations in shaping it, and (2) while both paradigms recognize the transition from political contestations over the character of CSR to its deployment by means of private regulation, the world‐capitalism paradigm offers stronger tools for theorizing the mechanisms of change that mediate between political agency and institutionalized regulatory outcomes.     

This Time,it's for Real: The Health and Social Care Act 2012

This article examines the Health and Social Care Act 2012 and associated reforms to the National Health Service in England. It focuses on the Act's policy of making the NHS market more ‘real’, by both encouraging and compelling NHS bodies to act as ‘market players’. The article considers whether the reforms are compatible with the constitutional requirements of accountability for the provision of a public service such as the NHS. It argues that the reforms threaten accountability for three reasons: they make the Secretary of State for Health's relationship with the NHS more complex, they create opaque networks of non‐statutory bodies which may influence NHS decision‐making, and (especially in relation to competition) they ‘juridify’ policy choices as matters of law. Taken together, these arguments suggest that there is force in the claim that the reforms will contribute to ‘creeping’ – and thus unaccountable – privatisation of the NHS.     

Local Authorities and the Accountability Gap in a Fragmenting Schools System

Reforms to the English education system under the UK's coalition government are building on the so‐called ‘schools revolution’ that previous Labour governments began through legislation increasing both schools' autonomy from local authorities and the system's diversity. Growing numbers of state‐funded schools have converted to academies outside local authority control, particularly since the Academies Act 2010, while opportunities have emerged for ‘free schools’ to be established by various interest groups. The right to establish a school has normative human rights underpinnings, yet the government's policy as a whole is particularly controversial due to the increased risk of social division, instability of local schooling arrangements and significantly reduced local democratic accountability for state funded education. This article questions whether, against a background of three decades of centralising educational reform and a concomitant decline in the role of local (education) authorities, the local public interest in education is being adequately safeguarded.     

John R. Commons and Max Weber: The Foundations of an Economic Sociology of Law

This article underlines contemporary economic sociology's lack of interest – until recently – in legal phenomena, unlike the close attention paid by two historic figures in ‘economic sociology’, Max Weber and John R. Commons, to the relationships between law and economy. It argues that to grasp fully the importance of the legal dimension in socio‐economic analysis, we must return to their foundational insights. However, they particularly stress differences between Weber and Commons as to the unity or heterogeneity of law and the economy, the role of ethics, the search for an all‐encompassing approach in the construction of ideal‐types, the various forms of constraint that characterize law (whether psychological, economic, or physical), and the distinction between state law and non‐state law. The latter element is why the authors argue that due consideration for legal plurality should be a central thread in any sociological analysis of the interplay between law and the economy.     

Radical Transactionalism: Legal Consciousness,Diverse Economies,and the Sharing Economy

This article proposes an original theoretical approach to the analysis of community‐level action for sustainability, focusing on its troubled relationship to the sharing economy. Through a conversation between scholarship on legal consciousness and diverse economies, it shows how struggles over transactional legality are a neglected site of activism for sustainability. Recognizing the diversity of economic life and forms of law illuminates what we call ‘radical transactionalism': the creative redeployment of legal techniques and practices relating to risk management, organizational form, and the allocation of contractual and property rights in order to further the purpose of internalizing social and ecological values into the heart of economic exchange. By viewing sharing‐economy initiatives ‘beyond Airbnb and Uber’ as sites of radical transactionalism, legal building blocks of property and capital can be reimagined and reconfigured, helping to construct a shared infrastructure for the exercise of collective agency in response to disadvantage sustained by law.     

Legal Mobilization within the Bureaucracy: Disability Rights and the Implementation of Antidiscrimination Law in Sweden

This article argues that the analysis of legal mobilization needs to give more attention to the state and its relationship with social movements in order to examine how the state either sustains social movements’ demands or is a field of contention for those demands. Focusing on how disability bureaucrats and activists mobilize antidiscrimination law in Sweden, this article shows that two main factors shape legal mobilization within the bureaucracy and alter the state's ability to become a legal mobilization actor: (1) the institutional relationships between social movement organizations and government agencies and (2) the profiles and careers of bureaucrats and activists. It concludes by suggesting several lines for further research on law and social movements in nonpluralist countries.     

Family Reunification Rights of (Migrant) Union Citizens: Towards a More Liberal Approach

Over the years, in the case‐law of the European Court of Justice (ECJ) determining the availability of family reunification rights for migrant Member State nationals, the pendulum has swung back and forth, from a ‘moderate approach’ in cases such as Morson and Jhanjan (1982) and Akrich (2003), towards a more ‘liberal approach’ in cases such as Carpenter (2002) and Jia (2007). Under the Court's ‘moderate approach’, family reunification rights in the context of the Community's internal market policy are only granted in situations where this is necessary for enabling a Member State national to move between Member States in the process of exercising one of the economic fundamental freedoms; in other words, where there is a sufficient link between the exercise of one of those freedoms and the need to grant family reunification rights under EC law. Conversely, under the Court's ‘liberal approach’, in order for family reunification rights to be bestowed by EC law, it suffices that the situation involves the exercise of one of the market freedoms and that the claimants have a familial link which is covered by Community law; in other words, there is no need to illustrate that there is a link between the grant of such rights and the furtherance of the Community's aim of establishing an internal market. The recent judgments of the ECJ in Eind and Metock (and its order in Sahin) appear to have decidedly moved the pendulum towards the ‘liberal approach’ side. In this article, it will be explained that the fact that the EU is aspiring to be not only a supranational organisation with a successful and smoothly functioning market but also a polity, the citizens of which enjoy a number of basic rights which form the core of a meaningful status of Union citizenship, is the major driving force behind this move. In particular, the move towards a wholehearted adoption of the ‘liberal approach’ seems to have been fuelled by a desire, on the part of the Court, to respond to a number of problems arising from its ‘moderate approach’ and which appear to be an anomaly in a citizens' Europe. These are: a) the incongruity caused between the (new) aim of the Community of creating a meaningful status of Union citizenship and the treatment of Union citizens (under the Court's ‘moderate approach’) as mere factors of production; and b) the emergence of reverse discrimination. The article will conclude with an explanation of why the adoption of the Court's liberal approach does not appear to be a proper solution to these problems.     

Commons as possessions: The path to protection of the commons in the ECHR system

The ‘commons’ is not mentioned in the texts of the European Convention on Human Rights (ECHR) or Article 1 of Protocol No. 1 (P‐1). This essay argues that ‘possessions’ — which does appear in the latter — should be interpreted by the European Court of Human Rights (ECtHR) to protect commons against national governments' undue interferences. The argument comprises two parts. First, we analyse the polysemic term ‘possessions’ to show how the current understanding of this category is marred by flawed assumptions and by false dichotomies. Then, we propose an ‘ecological’ construction of legal relationships between subjects and objects. We find support in the ECtHR case law on Article 8. We argue this approach should be extended to Article 1 P‐1: once disentangled from possessive individualism and market paradigms, ‘possessions’ encompass the commons and the category offers a solid legal basis toward the justiciability in Strasbourg of privatisations.     

The transition from central planning to a market economy: A computable general equilibrium model

This paper develops a computable general equilibrium (CGE) model of the transition from a central planned economy to a market economy. The model is an extension of Wellisz and Findlay's (1986) model of the Soviet ‘second economy.’ By distinguishing alternative assumptions about the disposition of the government budget, two model variants — the ‘activist’ and ‘non-activist’ — are analyzed. Equilibria of these model variants are computed for various parameter specifications of the Kantorovich ray, which represents the stringency of central planners' direction of the economy. The paper shows that increasing efficiency of the private sector, while it reduces the size of government subsidies to the state sector, does not necessarily increase the net government budget.     

企业社会责任的制度化

面对后金融危机时代以来中国经济可持续发展的强风险导向,现代产业网络核心的企业,已经越来越难以离开与利益相关方涉及经济、环境和社会等不同要素层面的交互和嵌入。更多地承担企业社会责任,不仅成为现代企业融入产业网络的标签,而且越来越借助制度的约束力,以保证切实践行。本研究在完成专门指向"制度性要素"的国内外文献和经验整理的基础上,归纳CSR责任制度化的世界理论共识和中国难题,藉此分析中国企业社会责任制度化的现状、问题和矛盾,在此基础上,以作为中国经济发展引擎的上海地区近200家产业和信息化领域企业为调研样本,甄别和发现责任制度化的关键议题和优先顺位,进而提出当下中国企业责任制度化的多元路径实现方案。     

The Molotov Milkshake: Corporate Social Responsibility and the Market

This article investigates links between the final scene—the milkshake scene—of P. T. Anderson’s film, ‘There Will Be Blood’, and a commercial advertisement for the sale of oil, which relies on a milkshake drinking analogy. The comparison probes a tension between the aspiration for capitalist economic growth and the self-regulation of corporate social responsibility (CSR). Business figures committed to the practice of CSR struggle with the possibility that deeper, systemic forms of violence inherent in market competition supersede their attempts at installing more responsible cycles of economic exchange. A risk remains, all the while, that social and environmental concern of the kind expressed in CSR is only able to acquire ‘value’ in the market, a relational or ‘dialectical’ system of exchange, where it meets contrasting cycles or events in the market: the value of alternatives (e.g. ‘going green’) is predicated on pre-existing products or earlier cycles of marketisation. The article discusses difficulties that CSR creates in terms of making interventions and raising conflict with corporate actors, and a tendency for the system to leave inert, exposed or abandoned, those that try. The capacity of CSR to eradicate the more vicious shadow of capitalist markets is challenged in the article. There is no release, the author argues, in a concept that is so essentially dependent on market mechanisms and on competitively motivated (ex)change.     

The EU–ACP development cooperation – governance challenges for non‐state actors: the case of Malawi

The European Development Consensus 2005 contains a broad policy re‐statement of the EU’s world view vis‐à‐vis its internal and external relations. It places poverty eradication and sustainable development at the heart of its policy. The context within which poverty eradication is pursued is an increasingly globalised and interdependent world that constantly creates new opportunities and challenges. Combating global poverty is seen by both parties not only as a moral obligation; rather as a building block for a more stable, peaceful, prosperous and equitable world, reflecting the interdependency of its richer and poorer countries. The EU has in its relations with the African, Pacific and Caribbean countries, past and present, pursued a development agenda via successive aid and development cooperation arrangements starting with the Yaoundé I convention, through Lomé to the Cotonou Partnership Agreement (CPA). In this article I reflect on the CPA, based on a corpus of shared objectives, principles and the Lomé ‘acquis’ in relation to Malawi non‐state actors (NSAs). I reflect on the opportunities and challenges it presents and how contemplated social dialogue between government and NSAs on the one hand and the EU can translate into poverty reduction, sustainable development and integration of the local economy to the global economy. I conclude that unlike its predecessors, Yaoundé and Lomé conventions, the CPA acknowledges the complementary role of NSAs in the development process, however NSAs in Malawi face constraints in terms of organisation and capacity building that affects their participation. What I do not do is to offer a discussion of the CPA as a whole, for that is outside the scope of this article, but rather have focused on the governance aspect vis‐à‐vis NSAs.     

Disability Discrimination Law in the United Kingdom and the New Civil Rights History: The Contribution of Caroline Gooding

This article concerns the theoretical and practical contribution of radical lawyer, feminist, and disability activist, Caroline Gooding to disability rights in the United Kingdom. It assesses the impact of her published work in the 1990s and translation of her insights into practice through her work on the Disability Discrimination Act 1995 and later at the Disability Rights Commission, not least in securing in legislation a positive disability equality duty. In particular, it seeks to situate Gooding's contribution within the ‘new civil rights history’, with its emphasis on the role of lawyer as mediator, facilitator, and ‘gatekeeper’. It argues that through her engagement with strategic law enforcement, law reform, and the wider mobilization of the law, Gooding created ‘alternative visions and accounts’ of disability and so forged a decisive connection between disabled people as a social movement and the law, in ways of exemplary value to social movements more generally.     

The contribution of EU public procurement law to corporate social responsibility

This article argues that while EU public procurement law increasingly allows public authorities to take environmental and social considerations into account in public purchasing decisions, it does impose limits on the possibility for authorities to incentivise corporate social responsibility (CSR) policies through public procurement. These specific limits are the result of the EU legislator's choice to endorse the Court of Justice's ordoliberal approach to public procurement law. This approach is in tension with EU CSR policy, and more broadly, the EU's non‐economic goals such as environmental protection, the fight against climate change, human rights and social policy. It reflects a normative preference for the right of undertakings to compete for a tender over the freedom of government authorities to choose a supplier on public interest grounds even if these choices are based exclusively on a legitimate public interest and should be reconsidered.