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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
refer to economic policy, in other words to the conduct of the state – which adopts binding rules of
conduct in the form of regulations – relating to economy. The state and its attributes (liberal, social or
welfare) point mainly to the role of state and society. It should be noted that the concepts of social state
and welfare state cannot be used as synonyms either. 42 The state of the rule of law and its various
definitions (liberal or social) basically define the connection between state and law. The ‘social union’ in
respect of the EU – similarly to the relationship between the social state and the society – would have
referred to the connection between the Union and its citizens. The term ‘social European system of law’
would entail what has been described in connection with the state of the rule of law. It is without the
shadow of a doubt that both terms should gain grounds for existence as part of the European terminology
at the European constitutional level, it is, however, indisputable that neither has got anything to do with
economy, economic policy or the internal market, that is with the fundamental concepts which played a
key role in the establishment and the later development of the EEC. The incorporation of the social
market economy into the text of the constitution harmonises much better with these. It is unquestionable
that the conception was debated even within the Convention, and several attempts had been needed before
the term could get into the text. The term social market economy was not contained in the first draft
despite the recommendation, made by the Working Group on ‘Social Europe’, based on a consensus. The
inclusion of the term was demanded by several groups of various political colours. The issue was raised
on the plenary session on the 27-28 of February 2003, and the subsequent draft did contain the term,
though the text was modified again and the term ‘highly competitive’ was included. 43 Regarding the
concept of social market economy, this inclusion was not absolutely necessary.
It is sometimes claimed in the literature that the social deficit, the elimination of which has been strived
for, has fertilised the standpoint of the Convention. 44 Those devoted to the social Europe regard the now
European constitutional principle of the social market economy as something that degrades and pushes
their objective into the background, the reason for which is obviously the imprecise knowledge of the
term and the implication of something which is not included. This may have led to the statement that the
social market economy is the restriction of social objectives, 45 which is an apparently false statement in
the light of the conception described above. Of course, perceiving the social market economy in a
different dimension, it may be claimed that – for instance contrary to the theory of the welfare state – it
does not unconditionally support everybody, that is it does not ensure the social level expected by some –
however, this is not the responsibility of an economic model. 46 These dimensions and areas of study
cannot be merged due to their different orientation. 47 Thus, it can be stated that taking into account the
provisions of the founding treaties and the objectives of the EEC/EC, the inclusion of the social market
economy into the TCE may be regarded as logical.
42 For instance the USA and the United Kindom are welfare states but not social states as social policy has not been
entrencehed in the constitution. Katrougalos: The „Economic Constitution” of the European Union … p 4. On the welfare state
cf. Falusné: A németországi szociális piacgazdaság [Social Market Economy in Germany]. p 244, Alkotmánytan
[Constitutional Law] (ed. István Kukorelli) Osiris 1998 p 153, László Szamuely: A jóléti állam ma [The Welfare State Today].
Budapest, 1985. Magvető Kiadó Budapest, 1985. p 7. Cited by János Sári in Alkotmánytan [Constitutional Law] Chapter 6.
Péter Szigeti: A szociális jogállam követelményeinek helyzete alkotmányos berendezkedésünkben: jelen, múlt és jövő? [The
Situation of the Requirements of the Social State of the Rule of Law in our Constitutional Arrangement: Present, Past and
Future?] in Magyar Jog. 2001/5:258.
43 Cf. CONV 528/03; CONV 574/1/03 REV p 1; CONV 724/1/03 REV; the draft of the 10 th of June 2003, CONV 797/03.
These are described by Joerges-Rödl: „Social Market Economy” as Europe’s Social Model? p 10 (footnote 37)
44 Cf. e.g. Joerges-Rödl: „Social Market Economy” as Europe’s Social Model? p 4.
45 Joerges-Rödl: „Social Market Economy” as Europe’s Social Model? p 20.
46 Falusné: A németországi szociális piacgazdaság [Social Market Economy in Germany]. pp 232 and 243.
47 Just as they are mixed in the work of Joerges and Rödl. Joerges-Rödl: „Social Market Economy” as Europe’s Social Model?
p 19.
DR. TÍMEA DRINÓCZI - SOME ELEMENTS OF THE ECONOMIC CONSTITUTION OF THE EU: SOCIAL MARKET ECONOMY AND RELEVANT FUNDAMENTAL RIGHTS 70