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From Social Justice to Access Justice : the European Challenge (Hans-W. Micklitz, 2008)

August 11, 2009 By: Admin Category: Social Justice

Preliminary remark: This is a paper on the many faces of social justice in private law. It intends to highlight the differences between the Member States’ concepts of social justice which now clash with a particular European concept. The aim of the paper is not meant, however, to defend national cultures and traditions per se. It aims at analysing the ongoing changes which should force us in light of the ‘intuitively felt cracks in civil society’ to rethink national patterns of social justice and maybe social justice as such. Emphasis is laid on private law.

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 culture and tradition. 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 idea of redistribution of wealth from the richer to the poorer part of the society. It is here where the idea of social welfare state is located.

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, environment) private law matters, the European Community is challenging national models of social justice in private law.

– I try to show that the fear is real, in that European integration, i.e. the building of a genuine European legal order – or in the words of the ECJ – a European Constitution, which is based on market freedoms and competition, cannot easily be merged with the idea of a social welfare state that arouse in nation states. European Integration challenges the national social welfare state and with it the protective law devices against the market logic, which 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 that I call access justice/Zugangsgerechtigkeit (justice through access, 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 to the European society as far as it exits. Access justice/Zugangsgerechtigkeit is not social justice in the meaning it has developed over the 19th and 20th 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 principle of subsidiarity….

Read here:
Click here to read ‘From Social Justice to Access Justice: the European Challenge’ (Hans-W. Micklitz, 2008)

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