¹ See, for example, in relation to gender discrimination at work, Hoskyns, C., Integrating Gender: Women, Law and Politics in the European Union (Verso 1996)Google Scholar and on sexual harassment at work, Zippel, K., ‘Transnational Advocacy Networks and Policy Cycles in the European Union: The Case of Sexual Harassment’, 11 Social Politics (2004) p. 57 CrossRefGoogle Scholar.

² See the contributions to Sciarra, S. (ed.), Labour Law in the Courts: National Judges and the ECJ (Hart Publishing 2001)Google Scholar.

³ Shanks, M., ‘Introductory Article: The Social Policy of the European Communities’, 14 Common Market Law Review (1977) p. 375 Google Scholar at p. 378, also noting, ‘As regards the non-employment aspects of Community social policy, the scope for dramatic initiatives is very limited’.

⁴ Séché, J-C., ‘Free Movement of Workers under Community Law’, 14 CMLRev (1977) p. 385 Google Scholar; Stabenow, W., ‘The European Social Fund’, 14 CMLRev (1977) p. 435 Google Scholar; Däubler, W., ‘The Employee Participation Directive: A Realistic Utopia’, 14 CMLRev (1977) p. 457 Google Scholar; Duyssens, D., ‘Migrant Workers from Third Countries in the European Community’, 14 CMLRev (1977) p. 501 Google Scholar.

⁵ This is the title of the workshop held at the EUI in December 2016 at which earlier versions of the analyses published here were presented. I am extremely grateful to those who presented analyses in the workshop but have not contributed to the special issue: Catherine Barnard, Bruno De Witte and Sylvaine Laulom, and to all those who contributed to a stimulating and enjoyable workshop through their comments and reflections.

⁶ See, for some examples of manifestos, Bercusson, B. et al., ‘A Manifesto for Social Europe’, 3 ELJ (1997) p. 189 Google Scholar making the case for insertion of the Maastricht Protocol on Social Policy and the 1989 Workers’ Charter into the Amsterdam Treaty; for a more recent example making the case for an upgrade of the legislative acquis as part of the 2017 European Pillar of Social Rights, see S. Garben et al., ‘Towards a European Pillar of Social Rights: Upgrading the Social Acquis’, College of Europe Policy Brief 1/2017. See Countouris, N. and Freedland, M. (eds.), Resocialising Social Europe in Times of Crisis (Cambridge University Press 2013)Google Scholar. For evolutionary approaches, see Barnard, C., ‘EU “Social” Policy: From Employment Law to Labour Market Reform’, in P. Craig and G. de Búrca (eds.), The Evolution of EU Law, 2^nd edn. (Oxford University Press 2011) p. 641 Google Scholar and Kenner, J., EU Employment Law, 2^nd edn. (Hart Publishing 2017)Google Scholar: ‘traces the evolution of EU employment law over sixty years from its limited market-based origins in the Treaty of Rome through to the present-day commitment to advance the fundamental social rights of workers and establish a core “guarantee” of adequate social protection in Union policies in the Treaty of Lisbon.’

⁷ Other meanings are related to these two central meanings: e.g. its use in psychoanalysis to describe the unconscious transfer of an intense emotion from one object to another, or its meaning in physics as the occupation by a submerged body or part of a body of a volume which would otherwise be occupied by a fluid.

⁸ Reflecting this shift from Social Europe for Workers in the area of status discrimination, with the 2000 Race Equality Directive encompassing also discrimination in education, housing, social protection and access to goods and services, see Bell, M., ‘Beyond European Labour Law? Reflections on the EU Race Equality Directive’, 8 European Law Journal (2002) p. 384 Google Scholar.

⁹ See, for interesting details and insights, E. Muir, ‘Drawing Positive Lessons from the Presence of “the Social” outside of EU Social Policy stricto sensu’, in this special issue.

¹⁰ For asylum seekers see the Reception Directive 2013/33/EU: this includes the right to work no later than nine months after the international protection application (Art. 15), the right to education for child applicants (Art. 14) and rights to ‘material reception conditions’ covering a series of guarantees for health, housing and subsistence (Arts. 17, 18 and 19). For irregular migrants see the Returns Directive 2008/115/EC, which provides that pending return such migrants should have access to emergency health care and basic education for children (Art. 14). For managed EU labour migration, see the Seasonal Workers’ Directive 2014/36/EU, making admittance subject to having in place a work contract, guarantees of sickness insurance, adequate accommodation and exclusion of recourse to the host-state social assistance system. Seasonal workers are given rights to equal treatment with host state workers for a series of labour and social security rights, including working conditions and industrial action.

¹¹ Starting with the seminal case ECJ 12 May 1998, Case C-85/96, Martinez-Sala, ECLI:EU:C:1998:217.

¹² See, for example, Lynskey, O., The Foundations of EU Data Protection Law (Oxford University Press 2015)Google Scholar at p. 9, ‘EU data protection regulation embraces elements of economic regulation (which reflect its origins as an internal market instrument) as well as aspects of social regulation (which reflect its fundamental rights dimension).’

¹³ See recently on the difficulties of the Dublin III Regulation, AG Sharpston in ECJ 26 July 2017, Case C-646/16, Jafari ECLI:EU:C:2017:443; on mutual trust and EU criminal justice see V. Mitsilegas, ‘Conceptualising Mutual Trust in European Criminal Law: the Evolving Relationship between Legal Pluralism and Rights-based Justice in the European Union’, in D. Gerard and E. Brouwer (eds.), Mapping Mutual Trust: Understanding and Framing the Role of Mutual Trust in EU Law (MWP 2016/13 EUI Florence) p. 23.

¹⁴ Muir, supra n. 9.

¹⁵ S. Garben, ‘The European Pillar of Social Rights: Effectively Addressing Displacement?’, and S. Robin-Olivier, Fundamental Rights as a New Frame: Displacing the social acquis’, this special issue.

¹⁶ See M. Dawson, ‘New Governance and the Displacement of Social Europe: the Case of the European Semester’, in this special issue.

¹⁷ See Kilpatrick, C., ‘Abnormal Legal Sources and Institutional Actions in the EU Sovereign Debt Crisis’, in M. Cremona and C. Kilpatrick (eds.), Legal Acts in the EU: Challenges and Transformations (Oxford University Press 2018)Google Scholar.

¹⁸ The Laval quartet: ECJ 11 December 2007, Case C-438/05, International Transport Workers’ Federation v Viking Line ABP EU:C:2007:772, [2007] ECR I-10779; ECJ 18 December 2007, Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet EU:C:2007:809, [2007] ECR I-11767; ECJ 19 June 2008, Case C-319/06, Commission v Luxembourg ECLI:EU:C:2008:350, [2008] ECR I-4323; ECJ 3 April 2008, Case C-346/06, Rüffert v Land Niedersachsen ECLI:EU:C:2008:189, [2008] ECR I-1989.

¹⁹ See ECJ 11 November 2014, Case C-333/13, Dano, EU:C:2014:2358; ECJ 15 September 2015, Case C-67/14, Alimanovic, ECLI:EU:C:2015:597.

²⁰ See, for example, ECJ 18 July 2013, Case C-426/11, Alemo-Herron v Parkwood Leisure Ltd, ECLI:EU:C:2013:521; ECJ 21 December 2016, Case C-201/15, AGET Iraklis v Ergasias ECLI:EU:C:2016:972

²¹ This led to EU agreement in February 2016 to modify commitments on free movement of workers had the UK voted to remain: A New Settlement for the UK within the European Union, OJ 2016/C 69 I/01.

²² A Swiss referendum in January 2014 to restrict free movement of non-Swiss nationals meant Switzerland no longer respected its 1999 agreement with the EC and the member states on free movement of persons, with knock-on implications for all the bilateral free trade agreements between Switzerland and the EU.

²³ S. Giubboni, ‘Freedom to Conduct a Business and EU Labour Law’, in this special issue, focusing on Viking and Laval, supra n. 18 as well as Alemo-Herron and AGET, supra n. 19. And, placing this against the development of the social rights in the Charter, Robin-Olivier, supra n. 15.

²⁴ A.C.L. Davies, ‘How has the Court of Justice changed its management and approach towards the social acquis?’, in this special issue.

²⁵ Dawson, supra n. 16.

²⁶ H. Eklund, ‘Enlargements, and Displacements of Social Europe: The Example of Sweden’, in this special issue; Muir, supra n. 9.

²⁷ Shanks himself makes this Cinderella claim, supra n. 3. See claiming ‘ugly sister’ status after Maastricht, Szyszczak, E., ‘Social Policy: A Happy Ending or a Reworking of the Fairytale?’, in D. O’Keeffe and P. Twomey (eds.), Legal Issues of the Maastricht Treaty (Chancery 1994) p. 313 Google Scholar.

²⁸ The Amsterdam Treaty witnessed introduction of a broad discrimination law competence and the integration of the Maastricht Social Policy Agreement.

²⁹ In particular, the inclusion of the Employment Policy Title in the Treaty in Amsterdam and the Open Method of Coordination on social inclusion as part of the Lisbon process in 2000.

³⁰ See, in particular after Lisbon, Art. 3 TEU, committing the EU to work for ‘a highly competitive social market economy, aiming for full employment and social progress’ and the mainstreaming social clause in Art. 9 TFEU, ‘In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.’

³¹ See, in particular, the Solidarity Chapter of the EU Charter of Fundamental Rights (Arts. 27-33). These mainly cover labour rights and some social (social security and assistance, health-care) rights, as well as rights to consumer and environmental protection. Discrimination and gender equality are in a separate Equality Chapter.

³² See especially the agreement in Council of 23 October 2017 to amend the Posted Workers’ Directive on the basis of the Commission proposal of March 2016: COM (2016) 128 final. The legal basis is Arts. 53(1) and 62 TFEU, the free movement of services’ legal bases.

³³ Robin-Olivier, supra n. 15.

³⁴ Robin-Olivier, supra n. 15. This is also an important strand of Muir’s analysis, with an important focus on anti-discrimination law.

³⁵ S. Garben, ‘The European Pillar of Social Rights: Effectively Addressing Displacement?’, in this special issue.

³⁶ See in particular the contributions to this special issue by Hanna Eklund on Swedish membership and by Zane Rasnača on membership and posting, ‘Identifying the displacement of “new” Member State social interests in the posting of workers: The case of Latvia’.

³⁷ The transitional restrictions on free movement of workers that were operated by a large number of old member states in the 2004, 2009 and 2011 enlargements; the additional restrictions on posting of workers to Austria and Germany that were also included in all these accession agreements, ‘In order to address serious disturbances or the threat thereof in specific sensitive service sectors in the labour markets of Germany and Austria, [which could arise from posting] Germany and Austria may, after notifying the Commission, derogate from the first paragraph of Art 56 TFEU with a view to limiting in the context of the provision of services by companies established in [Accession states], the temporary movement of workers whose right to take up work in Germany and Austria is subject to national measures.’

³⁸ This case law is so well known that a reference to the Laval quartet is almost redundant. However, analysing these cases as a well-intentioned though problematic response by the Court of Justice to changing EU membership, or justice between workers, seems a productive and not yet fully explored avenue: see further Davies, Eklund and Rasnača in this special issue for a range of insights. More interesting and less analysed is the subsequent readjustment of the Laval case law by the Court of Justice in the Finnish Electricians Union case: ECJ 12 February 2015, Case C-396/13, Sähköalojen ammattiliitto ry v Elektrobudowa Spółka Akcyjna ECLI:EU:C:2015:86. Also well worth further analysis, in light of tensions surrounding limits on free movement of workers and posted workers, is the Court’s interpretation of the accession restrictions on free movement: see in particular ECJ 10 February 2011, Cases C-307/09 to 309/09, Vicoplus ECLI:EU:C:2011:64; ECJ 18 June 2015, Case C-586/13, Martin Meat ECLI:EU:C:2015:405.

³⁹ In 2013 Cameron’s first speech at Bloomberg on UK renegotiation of membership did not include free movement of workers but focused instead on labour acquis issues such as excessive regulation and the working hours of doctors. However, this changed in late 2014 and his letter to Donald Tusk on 10 November 2015 demanded ‘that people coming to Britain from the EU must live here and contribute for four years before they qualify for in-work benefits or social housing’ and ‘that we should end the practice of sending child benefit overseas’.

⁴⁰ H. Eklund, in this special issue.

⁴¹ ECJ 8 April 1976, Case 43/75, Defrenne v Sabena (No 2), ECLI:EU:C:1976:56.

⁴² Supra n. 1.

⁴³ Alongside Defrenne we can think of cases such as ECJ 26 February 1986, Case 152/84, Marshall, ECLI:EU:C:1986:84 (gender equality at work) and ECJ 19 November 1991, Joined Cases 6/90 and 9/90, Francovich, ECLI:EU:C:1991:428 (guarantees for employees in employer insolvency).

⁴⁴ See in particular Dawson, supra n. 16.

⁴⁵ See in particular Davies and Giubboni, in this special issue.

⁴⁶ See Kilpatrick, C., ‘New EU Employment Governance and Constitutionalism’, in G. de Búrca and J. Scott (eds.), New Governance and Constitutionalism in Europe and the US (Hart 2006) p. 121 Google Scholar.

⁴⁷ See Dawson, supra n. 16.

⁴⁸ See Commission follow-up to the Top10 Consultation of SMEs on EU Regulation in COM (2013) 446 final and SWD (2013) 401 final. The labour acquis was a substantial focus of REFIT over the last five years with all the following being evaluated: the large group of health and safety at work directives, the written statement directive (Directive 91/533/EEC) and three directives containing national information and consultation obligations (the collective redundancies directive (Directive 98/59/EC), the transfer of undertakings directive (Directive 2001/23/EC) and the 2002 information and consultation directive (Directive 2002/14/EC). REFIT evaluation of the part-time and fixed-term work directives (Directive 97/81/EC and Directive 99/70/EC) was announced in October 2016 and of the European Works Council Directive (Directive 2009/38/EC) in 2017. For details and analysis of many of these REFIT exercises see S. Laulom, ‘Better Regulation and the Social Acquis: is the REFIT Fit for Purpose?’ (draft paper, on file with author).

⁴⁹ It is worth reflecting on a further displacement of the social acquis: in critical theoretical analyses of ‘the social question’ or the social deficit in the contemporary EU. In these analyses, the social acquis is either given a neo-liberal reading or ignored in considering issues of EU redistribution and legitimacy. See e.g. Somek, A., Engineering Equality (Oxford University Press 2010)Google Scholar; Joerges, C. and Rödl, F., ‘Informal Politics, Formalised Law and the Social Deficit of European Integration: Reflections after the Judgments of the ECJ in Viking and Laval ’, 15 ELJ (2009) p. 1 Google Scholar; de Witte, F., ‘EU law, politics and the social question’, 14(5) German Law Journal (2013) p. 581 Google Scholar. Critically engaging with this scholarly displacement along the other dimensions explored here could produce productive insights on the significance of the social acquis in the construction of Social Europe.

⁵⁰ See further Muir, supra n. 9.