Equal Treatment of Mobile Persons in the Context of a Social Market Economy

Abstract

Free movement of persons is a fundamental freedom and equal treatment its necessary corollary. Yet, both principles have come under pressure in the past decades. This article investigates three forms of mobility within the European Union (EU): workers, economically inactive persons and posted workers. In respect of all three categories, there is a tension between social and market interests, which appears most clearly when comparing their right of equal treatment. The balancing between market and social values is at the core of this research. We expect that the social market economy will, on the one hand, explain the ‘why’ in discussing the right of equal treatment of free movers and its limitations. On the other hand, the social market economy also has a normative dimension, which enables us to discuss perspectives on how equal treatment can develop, and make some propositions. We argue that the social component in the market economy requires a revision of what is seen as fair competition in the direction of outlawing social dumping. We also find that the persistence of the market elements pleads for the right to free movement of persons, which does not substantially disturb the economy of the host Member State.