INTRODUCTION

As exemplified by a handful of cases decided by the ECJ in the fields of education, healthcare and social welfare, the free market orientation of the European economic constitution sometimes comes into conflict with Member States’ core sovereign power to organise their welfare systems. These clashes are to be seen through the lens of a state/market divide. Activities are allocated to either sphere according to their economic nature. Non-economic activities escape the application of internal market law, while economic activities benefit from the four freedoms and cannot be restricted by Member States beyond what public interest requires.

This chapter is an invitation to confront this legal dichotomy with the reality we live in, where one finds organised civil society lying between the state and the market. It will be argued that the conflict mentioned hereinabove should not be merely stated as a case of state versus market, public versus private. One should go beyond this seemingly obvious legal divide and ask how internal market law impacts on state policies that favour the provision of social services by organised civil society as opposed to market operators. This is not a rhetorical question. Such policies, although increasingly called into question by Member States, do exist in some European countries. They may even come back in favour with the near-collapse of the Washington consensus and growing interest in third way policies. This issue goes to the heart of what has been described in Chapter 3 as a need for social policy to defend civil society against the colonising forces of markets. It is asked whether resistance can take the shape of policies expressing the democratic will of a political community to keep profit-making at bay in a sector of fundamental importance: welfare delivery.

The main analytical tool used for the purpose of answering the above question will be the notion of solidarity, defined here as ‘a willingness to share the fate of the other’. Two dimensions of this multifarious notion will be considered, which together reflect the conception of solidarity as a non-economic resource rooted in civil society. In its first, non-economic, dimension, solidarity may take the shape of a decision by which a political community transfers resources from one social group to another (thereafter referred to as ‘social solidarity’). Social solidarity thereby understood as redistribution, represents the focus of welfare states.