This chapter has analysed the continuous mobilization of pro-regulation actors striving for positive integration in the realm of welfare services in order to re-balance the marketization and liberalization policies historically entrenched with EU integration. From the 1990s onwards, a coalition including the unions, diverse interest groups advocating the protection of SGI from detrimental effects of EU competition policy, and a number of Member States’ governments—mainly France, Belgium and some Southern countries such as Spain or Italy—has obtained a significant recognition of the necessity to protect welfare services vis-a-vis competition. Following the breakthrough with the Treaty of Amsterdam and the inclusion of a new Article 16 acknowledging SGI, the provisions included in the Treaty of Lisbon (and inherited from the Constitutional Treaty) are more ambiguous: while an explicit legal basis is provided for the EU to legislate and regulate SGI (Article 14 TFEU), the stress is clearly put on subsidiarity, which seems to discourage EU-positive intervention. This reflects the changing political power relations and balance of ideas in the course of the decade under scrutiny (i.e. from the mid- 1990s to the late 2000s) as epitomized by the intertwined debates on the Services Directive and on the Framework Directive on SGI.
The campaign by pro-regulation actors in favour of an EU directive re-regulating SGI at the EU level shows how endeavours towards positive integration have remained, to a large extent, unfruitful. The building of a broad and strong coalition was impeded by entrenched policy practices. On the one hand, echoing the argument made by Scharpf and others, the diverse institutional arrangements and historical conceptions of welfare services have favoured political inertia and precluded agreement for pushing positive integration among the Member States. On the other hand, practices entrenched in EU policy making have also played a key role which is less often detected. The sectorizing of policy making and negative integration inherited from the liberalization agenda contributes to shape interest formation on a sectoral basis, thus leaving the representatives of more diffuse and intersectoral interests (mainly unions and political parties) without the support of crucial sectoral actors (regulators, large companies and so forth). As a consequence, neither the transnational networks of civil society nor the pro-regulation actors within domestic arenas engaged with the campaign. The coalition advocating an EU Framework Directive was therefore limited to supranational actors, mainly the PES Group in the EP and the ETUC. Even within these organizations, support was limited as the issue was divisive. Similarly, support from MEPs for such a directive considerably eroded over time, leaving the Commission without substantial support for a legislative initiative.
Furthermore, institutional constraints were reinforced by and constructed in the battles of ideas, and the desirability of an EU Framework Directive as opposed to sectoral rules was to a large extent constructed discursively in deliberations. First, the debate was mainly confined to the supranational arena in Brussels, the framing of the issue relied mainly on coordinative discourse and complex cognitive arguments, while communicative discourse invoking the general interest remained very thin. Such a framing therefore proved not able to bring about large-scale resonance among grassroots citizens or within national public opinions. Looking at the debates in the EP, the pro-regulation camp has clearly suffered from its own internal inconsistencies and the rise of the pro-market and prosubsidiarity discourse among the social democrats in particular. It is not surprising given the continuous shift of majorities to the right among national governments, determining the composition of the Council and Commission, and the EP. But the weakness of the positive integration agenda is also due to the weakness of the pro-regulation camp itself. The debates actually reveal the paradox of EU integration: while a rebalancing act was deemed necessary by the pro-regulation camp after the adoption of the Services Directive, the latter brought about a growing suspicion that EU policy making is only about liberalization and privatization. This has led a substantial part of the left to adopt a defensive position evident in the almost exclusive focus on subsidiarity and the will to curtail the action of the EU as much as possible. This position is fed by the—arguably illusory—notion that market issues and welfare services with cross-border relevance must be dealt with at the EU level, while the regulation of social issues must occur at the national, regional and local levels and remain more protected from market mechanisms. This defensive position has gained much ground within the German social democracy (Egle 2011, pp. 37-38) which is powerful within EU institutions, the EP in particular.
From a theoretical perspective, the chapter has demonstrated that legal—including constitutional—provisions can only be seen as tools which can potentially be mobilized by political entrepreneurs. However, the broader ideological environment, power relations between the different political camps, and discursive battles shape in fine whether and how such provisions will effectively used (or not) for policy making. This seems to confirm the idea that the institutional features of the EU cannot be regarded as structural constraints bearing mechanic effects on the shape and nature of integration. In the same vein, the notion that horizontal regulation can be used for liberalization and deregulation (Services Directive) but not for re-regulation (Framework Directive) is an ideologically motivated discursive construction. Since 2007, the debate on a global re-regulation of SGI has clearly faded, thus leaving SGI regulated by competition policy only accompanied by relatively insignificant soft policy measures. Contention-based campaigning is now limited to either institutionalized consultation or campaigning on sectoral issues—like the ECI claiming a human right to water and sanitation—situated in broader, global campaigns. The following chapter therefore turns to the connections between contentious politics in respect of welfare services in the EU and the global contentious agenda on welfare services at the global level.