De la justice sociale à la justice d’accès (Zugangsgerechtigkeit)

 

 

Démocratie et justice sociale : quel avenir pour le droit privé européen ?

Cour de Cassation, Paris

 

De la justice sociale à la justice d’accès (Zugangsgerechtigkeit) :

le défi européen

 

Hans-W. Micklitz

University of Bamberg

 

***

Ce document est également disponible au format pdf

***

 

I. How the argument goes.

 

The Member States have developed over the last century their proper model of social justice in private law. Each model is inherently linked to national traditions. However, all models have in common that it is for the (social welfare) state to use the law as a means to protect the weaker party against the stronger party, the employee against the employer, the tenant against the landlord and the consumer against the supplier. Social justice is therefore bound to the welfare state and to the idea of redistribution of wealth from the richer to the poorer part of the society.

Since the adoption of the Single European Act, more particularly the famous White Paper on the Completion of the Internal Market with its huge set of directives which influence either directly (consumer and business law directives) or indirectly (directives meant to liberalise markets, e.g. telecommunication, energy, transport, health) private law matters, the European Community is challenging national models of social justice.

  • I try to show that the fear is real that European integration, i.e. the building of a genuine European legal order – or in the words of the ECJ – a European Constitution, which based on market freedoms and competition cannot easily be merged with the idea of a social welfare state. European Integration challenges the social welfare state and with it the protective law devices against the market logic which still ties the European Community together.
  • I equally insist that market integration, in particular the logics behind the market integration could also and should also be understood as a chance to rethink national models of social justice. EC market integration and social regulation has always gone hand in hand. The European integration process yields its own model of justice – a model which I call Zugangsgerechtigkeit (justice through access, access justice, not access to justice), i.e. that it is for the European Community to grant justice to those who are excluded from the market or to those who have difficulties to make use of the market freedoms. European private law rules have to make sure that the weaker parties have and maintain access to the market - and the European society as far as it exits. Zugangsgerechtigkeit is not social justice in the meaning it has developed over the last century.
  • The European model of justice does not exclude the co-existence with differing national models of social justice provided two conditions are met : (1) the minimum harmonisation rule survives the policy shift intended by the European Commission and (2) Member States are matching the EC responsibilities which are imposed on them under the subsidiarity principle.

I will develop my argument in four steps : (II) I will start with some clarifications on the concept of social justice, why and how it emerged in political discourse and in social science, what is meant by social justice (redistribution of wealth only or non-economic values), its deep going assumptions on the role of the state and the possible functions of the law. (III) I will undertake the attempt to show that there are different models of social justice in identifying the socio-economic and political background of social justice in France, Germany and England. The starting hypothesis is that the countries differ in their understanding of social justice means, of what it stands for and which legal means are used to cope with it. (IV) Against this background I will reflect on whether and to what extent the national models on social justice have achieved the objectives they claim to realise, - and on whether and to what extent the models of social justice have yield distortions and deficiencies. (V) I will look into what I termed the European challenge, i.e. the true threat of the European market ideology to national social justice issues as well as the chance of the European market ideology to reconsider national social justice issues. (VI) I will conclude by highlighting the key role of the subsidiarity principle and minimum harmonisation which allows for a side-by-side of different models of social justice, between the EU and the Member States, as well as between the Member States