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Euroconstitutionalism and its Discontents$
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Oliver Gerstenberg

Print publication date: 2018

Print ISBN-13: 9780198834335

Published to Oxford Scholarship Online: February 2019

DOI: 10.1093/oso/9780198834335.001.0001

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Adjudicating the European Social Market

Adjudicating the European Social Market

Negative Constitutionalism Redux?

(p.51) 2 Adjudicating the European Social Market
Euroconstitutionalism and its Discontents

Oliver Gerstenberg

Oxford University Press

At a first glance, to many observers the EU may appear to be an improbable illustration of the possibility of an extension of legitimacy and democratic justice beyond the state. In contemporary European constitutional debate constitutionalism and social democracy have become antagonists, with the survival of the one seeming to require sacrifice of the other. Authors in the tradition of ordoliberalism have celebrated the Europeanization process because it seemed to ultimately disconnect constitutionalism from democratic practice and to firmly entrench a logic of market evolution that marginalizes politics. Social democrats, by contrast, have come to believe that democracy can only flourish if the solidary politics of the nation retains its sovereignty against cosmopolitan, ‘constitutional’ intrusions from without. Proposals to deepen constitutional integration therefore give rise to the social-democratic objection. This chapter offers a stylized account of both views, which more or less mirror one another. This chapter then also provides an in-depth analysis of the CJEU’s jurisprudence in various domains regarding the efficacy of the Charter of Fundamental Rights of the EU (CFREU) in European private law: employment law and unfair terms in consumer contracts in particular. The chapter concludes that, contrary to expectations and concerns about a constitutional asymmetry between economic freedoms and fundamental social rights, the CJEU has in fact in many cases raised the standard of protection beyond the standard envisaged by national legal orders, thereby unblocking development.

Keywords:   ordoliberalism, social democracy, internal market, economic freedoms, constitutional asymmetry, Charter of Fundamental Rights of the EU (CFREU), European private law, multilevel constitutionalism

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