The political agency of the European Union has significantly grown in recent years. Curiously, however, this expansion of political activity did not coincide with a re-design of its constitutional mandate. Rather, crisis responses repeatedly centred on the coordination of national decision-making practices instead, thereby allowing for the pursuit of a common political objective in the absence of formal supranationalisation. This phenomenon has been termed ‘coordinative Europeanisation’ in political science research. While coordinative Europeanisation presents itself as a particularly expedience form of crisis governance, it raises significant questions regarding the role that supranational law assumes in crisis. What are the constitutional limits to such a strategy of coordinative Europeanisation? How has it been used in practice and what consequences does it create for supranational law in the long run? By analysing the foundations and repercussions of coordinative Europeanisation from a legal perspective, the following research will reflect on these questions.

The protection of social rights at the Union level is undoubtedly one of those areas of European Union (‘EU’) law that are proving dangerous to enter due to the widespread stigma surrounding their ‘fundamental status’ and ‘justiciability’ (Lord Goldsmith 2001; Hunt 2003; Jääskinen 2021) and the progressive crisis of the constitutional compromise enshrined in the founding treaties on the distribution of economic and social competences between the Union and the Member States (de Witte 2016). Indeed, the limited competence of the Union in social matters has been progressively coupled with the pervasiveness of its intervention in these matters, driven primarily by market forces, leading to a paradoxical state of affairs (Rodière 2018) and discontent, democratic disconnection and dissent.

The ‘slow constitutionalisation’ of social rights in the EU legal order (de Witte 2020), which led to the binding Charter of Fundamental Rights of the EU (‘Charter’) and the European Pillar of Social Rights (‘EPSR’), can be explained by the will to address these issues. Nonetheless, although the primary law status acquired by the Charter has brought about a paradigm shift in the EU system of protection of fundamental rights, the Union has certainly not become a ‘human rights organisation’. Moreover, after years of ‘paralysis’ (Muir 2018) and ‘contestation’ (Sindbjerg Martinsen 2020), the European social dimension has ‘reawakened’ in 2017 following the adoption of the European Pillar of Social Rights (EPSR), opening up to new legislative and jurisprudential itineraries for the protection of social rights in the Union, which are still to a significant extent unexplored but of paramount importance for the future of the European integration process. This led some Scholars to refer to recent years as the ‘Roaring 20s for Social Europe’ (Kilpatrick 2023). Nevertheless, the supranational regulation of social and labour rights ontologically entails a market-creating function, which can be integrated with a market-correcting goal but cannot be entirely replaced by the latter (Barnard 2007).

Against this backdrop, this paper investigates the following two research questions: Are the recent developments in the EU social legislation capable of impacting upon the conceptualisation of social justice in the Union, moving beyond the ‘access justice’ model (Zugangsgerechtigkeit) (Micklitz 2011)? Can they address the issues of discontent, democratic disconnection, and dissent exacerbated by the rapid transformations in technology and society and, consequently, how work is done in the Member States?

Can (EU-derived) rights unite, or are they bound to divide? This is the question informing this paper.

The specific quality of its law has been a hallmark of European Integration through the European Union and its predecessors. Constitutional principles such as direct effect and supremacy over national law allowed individual citizens to rely on EU law for deriving rights to be claimed against Member States, other citizens or the EU itself. Best-known are rights to free movement in the framework of the Internal Market, for individuals as workers or self-employed persons and for economic actors including multinational companies alike. The EU is also well known for creating rights not to be discriminated against, in the field of equal pay for women and men, or by protecting against age discrimination or religious discrimination. Yet EU derived rights have attracted criticism. The direct effect of the Internal Market’s fundamental freedoms has been scolded as “overconstitutionalisation”, elevating economic policies to constitutional principles and thus preventing Member States to integrate national societies through social and economic politics at national levels. A lengthy essay on EU anti-discrimination law concludes that the field results in commercialisation of people rather than social integration. On the other hand, recent projects on social citizenship in the EU, funded through the EU Commission’s Horizon 2020 programme, promote a positive vision of social rights derived from the EU.

Both perspectives have merits, of course. On the one hand, traditional liberal conceptions of (human) rights support the idea that rights are ill-suited to integration societies on principles. If rights are deontological constraints, or claims to be wielded by individuals against collectives (Dworkin, 1985) geared towards constraining actions which are otherwise optimal (Nozick, 1974), they must threaten societal cohesion. On the other hand, individualistic concepts of rights have been profoundly criticised from feminist and ecologist perspectives, leading to reconceptualization. Also, rights enabling democratic participation are geared to create interaction, while social rights can also be conceptualised as enabling horizontal social integration and participation.

This paper offers a critical appraisal of rights created by the EU and its predecessors, at the same time introducing the project RIGHTS TO UNITE, which develops and empirically investigates the potential of EU derived rights to contribute to or threaten European integration in the EU and its neighbourhood (2024-2028, funded by the ERC through an Advanced Grant.