How are social services conceptualised, legally defined and regulated (directly or indirectly) across different strands of EU law? How do EU legal rules delimit the scope of national intervention in social services?  To what extent do relevant EU legal frameworks create normative tensions or ambiguities that affect national social investment?  These three overarching and intertwined questions guide the research that the SWINS partners from the University of Maynooth conducted to elaborate the Legal Mapping of the project. Researchers examined the role of EU law and policy in shaping the funding, organisation and delivery of social services across the Member States. Rather than viewing social services solely through the lens of national welfare systems, Researchers located them within the broader constitutional, legal and policy architecture of the European Union, illustrating how EU law both enables and constrains their development.

The EU law and social services

The study shows that EU law affects social services in at least three main ways. First, it frames and orientates social services through policy instruments, including the European Pillar of Social Rights (EPSR) – which provides an important framework to orientate Member State action -, the European Semester, the EPSR Action Plan, social economy initiatives and broader strategies with a social dimension. These instruments do not always create directly enforceable rights, but they nevertheless influence the priorities, language and direction of national policy

Secondly, EU law shapes and constrains social services through regulatory frameworks, including State aid rules, public procurement law, accessibility obligations and budgetary mechanisms. These frameworks determine how Member States may fund, commission and organise social services.

Thirdly, EU law enables and transforms social services through free movement law, EU citizenship, cross-border service provision and rights-based measures that alter how individuals and service providers interact with available funding systems. Free movement law is perhaps one of the most fundamental – and controversial – areas in respect of the transformation of social services. Indeed, the jurisprudence of the CJEU has often limited the space for Member States to regulate their solidarity-based systems, as well as labelling many social-based actors as an economic barrier to cross-border trade.

However, EU citizens are also made the beneficiary of these economic freedoms as rights, including to non-discrimination. Member States therefore have for duty to ensure that eligible mobile EU citizens are not discriminated against on grounds of nationality when accessing social services falling within the scope of EU law. In sectors such as healthcare for example, free movement law should facilitate access to treatment in other Member States and encourages cooperation between national authorities.

Future challenges

While EU law undoubtedly introduces additional layers of complexity into the funding, organisation and delivery of social services at Member State level, this complexity should not be understood as an insurmountable barrier to investment in social services.

The challenge instead lies in navigating the legal and policy frameworks through which social objectives can be pursued. EU law contains not only constraints on the Member States, but also a range of enabling mechanisms, including, but not limited to, funding instruments, social policy initiatives, SGEI frameworks, the incorporation of social considerations within public contracts, accessibility obligations and rights-based measures.

The key task for policymakers, legislators and service providers is therefore to develop greater fluency in these legal pathways, to help ensure that social services are not only compliant with EU law, but actively strengthened by it. This deliverable also calls for creative thinking in the interpretation, implementation and use of EU law that stir away from narrow market orientation and economic meanings towards a socially oriented approach.

To read more on this discussion read the full publication!