Member State Capitalism(s) and EU Law: Protecting Local Varieties in the Single Market

The EU Single Market, as a multi-layered marketplace, is characterised by a considerable diversity among the institutional models of local capitalisms in Europe. For the legal instruments applied in its implementation – both legislation and judicial practice, this diversity presents a significant challenge. EU legislative measures are forced to promote responses that are able to accommodate and reconcile local diversity. The EU Court of Justice’s jurisprudence is expected to contribute to the realisation of the market integration objective without unnecessarily removing or homogenising the institutions of national market economies. With the launching of the European Pillar of Social Rights (EPSR) pursing a clear objective of further institutional convergence among the Member States, a closer attention must be paid to how law in the governance of the Single Market addresses these difficulties. Diversity among national varieties of capitalisms is a fundamental condition of EU market integration. It affects directly its implementation and imposes inescapable limitations on the conduct of the central actors of that process. Legislation adopted for the implementation of the Single Market is shaped by expectations that its provisions will be able to accommodate and, if possible, reconcile different local institutional setups. The application and the enforcement of Member State obligations by the Court of Justice are under pressure to avoid the unnecessary ‘de-institutionalisation’ of national market economies. As the case of the EPSR shows, while this balancing between opposing imperatives may seem possible as a matter of political declarations, the balance manifested in the actual legal rules is in fact contestable. The main challenge for the jurisprudence of the Court in such environment is whether it is able to satisfy all relevant political expectations and determine the boundaries of its intervention accordingly.