Does the Court care about the coalface? The European Social Model and the continued Constitutional Imbalance between ‘market’ and ‘social’ values

This paper argues that despite recent scholarly accounts arguing the contrary, an asymmetry between 'the market' and 'the social' continues to exist in the EU legal order. This asymmetry manifests itself, in particular, in the case law, which - more as the rule than as the exception - underprotects the values of the European Social Model and overvalues economic freedom. A new frontier of negative economic integration is being crossed in the interpretation of Article 16 EUCFR (the freedom to conduct a business), while social fundamental rights are overlooked and misunderstood. Furthermore, despite the (politically driven) post-Brexit renaissance of Social Europe over the past decade, the constitutional scope of positive social integration through European-level collective bargaining (cf. EPSU) and legislation (cf. EU Minimum Wages) has been constrained. This paper argues that the resulting imbalance is contrary to the identity of the EU legal order as laid down in the Treaties and the Charter, which reflects an attachment to ‘social democracy’, and that it is for the Court to correct, as it is largely of its own making