ALAIN SUPIOT

Interview by Marc-Olivier Padis

Possible Europe

In Beyond Employment, the 1999 report on work that you chaired for the European Commission, you sketched the foundations for what might have become a genuinely universal social policy for the EU, as well as making concrete proposals for labour law reform. [1] What is your retrospective assessment of that collective undertaking, and of the European ‘agenda’ as it has developed since then?

The report, Beyond Employment, has had a paradoxical fate. On the one hand, it received a certain amount of publicity and helped to free debates on employment from the mental straitjacket in which they had become trapped in the 1990s. But European institutions did not take up the simple idea it embodied: that there is no wealth other than human beings, and that an economy which ill-treats them has no future. The new conceptual frameworks we outlined with regard to professional status or to ‘social drawing rights’ all flowed from this basic idea. But of course this ran directly counter to the credo that holds sway in Brussels, according to which the problem is not that of adapting the economy to the needs of human beings, but rather the reverse—adapting human beings to the needs of markets, and especially to the needs of financial markets, which supposedly create harmony by making self-interest the basis for all human activity. This credo ensured eu officials were deaf to the warnings of those such as Jean-Luc Gréau, who diagnosed capitalism’s sickness as a financial one a decade ago. [2]

At a time when the priority should have been to establish order in the financial markets, Brussels had only one slogan: ‘Reform the labour markets’—in the sense of fitting people into the ‘permanent recomposition of the productive fabric’, to maximize ‘value creation’ for the players in an economy that had become little more than a casino. Hence the denunciations of rigidities inherent in labour protection, repeated parrot-fashion in the European Commission’s recent publications. The 2006 Green Paper on modernizing labour law or the Communication on ‘flexicurity’ from 2007 spin out the pre-packaged thinking current among the elites of all the member-states, regardless of their political sensibilities—couched in a newspeak of which the Commission is a master.

To conceptualize labour ‘beyond employment’ naturally does not imply the disappearance of employment, any more than thinking of labour ‘beyond France’ implies the disappearance of France; it remains an essential part of labour’s status. But formal employment no longer provides (if it ever did) a normative framework that can ensure that everyone on the planet has decent work. The crisis of the Fordist industrial model ought to be used as an opportunity to improve the lot of the majority, instead of leading to the dismantling of social security provisions attached to work and a return to the unbridled exploitation of the weakest. This, of course, in the name of individual liberty: the freedom to be paid less than the standard rate, to do a 15-hour day, to work on Sundays instead of spending the day with one’s children, postpone retirement, renounce any attempt to assert one’s legal rights and so on. A programme to which the Right has had no trouble at all in winning over a ‘social’ Left which has lost interest in workers’ conditions.

Contrary to the slogan, ‘There Is No Alternative’, the crisis of the industrial employment model confronts us with a choice. The problem is that this choice is not expressed in the political arena. In order to understand its terms, we need to return to the ‘invention’ of employment, the product of a historic compromise. This process was memorably described (and criticized) by the Italian trade-union leader Bruno Trentin, in his La città del lavoro—sadly never translated into French, or English. [3] On the one hand, trade unions and left parties came to accept that, in both the socialist and capitalist worlds, workers should be subjected to a scientific organization of labour responding exclusively to the imperatives of efficiency, not of justice. On the other, big business eventually internalized the idea that improving the incomes and economic security of their employees was not only a legitimate goal but brought increased efficiency in terms of productivity and market openings.

It is this founding pact on employment that was broken thirty years ago. There were various reasons for this, but one of the most important was the dismantling of international trade barriers, and the generalized competition this created between Northern workers and those in the South. Big business was thus able to have its cake and eat it: a global monopoly on the organization of labour and productivity increases, but also drastic reductions in the ‘cost of labour’ and a corresponding rise in profits. From the standpoint of labour law, the question is how to establish a new founding pact for the world of work, taking account of the objective changes that have occurred in the organization of labour, but also of the imperative of social justice—an imperative that cannot be sidelined for long without inviting an inexorable rise in insecurity and violence.

In Beyond Employment our response was to propose that this new pact—unlike its predecessor—be founded on the freedom and responsibility of human beings, not on their subordination or their ‘programming’. We emphasized the idea of a ‘labour-force membership status’ which would allow people to exercise real freedom of choice throughout their lives: to move from one work situation to another and to reconcile their personal with their professional life. Approaching the question in these terms led to a fresh reading of the old concept of ‘juridical capacity’, expanded to include individual and collective capabilities. [4] This contributed to renewed thinking about the goals of trade-union activity. The cgt has begun to formulate the question in terms of ‘professional social security’, and the cfdt as ‘security of professional trajectories’.

Although seemingly inspired by a similar approach, combining liberty and security, the European Commission’s promotion of a policy of ‘flexicurity’ in fact followed precisely the opposite path—considering people as ‘human capital’, who needed to ensure their ‘employability’ so that they could respond, in real time, to the demands of ‘value creation’ as expressed in financial markets. Merely comparing these concepts—freedom versus flexibility, capability versus employability, labour-force membership status versus human capital—is enough to bring out what distinguishes them. In one case, the starting point is human creativity, and there follows an attempt to construct a system of laws and an economy that will allow people to express themselves and satisfy their needs; in the other, the starting point is the supposed infallibility of the market, and the aim is to provide businesses with a human ‘resource’ that will respond to their needs.

Current studies tend to stress the diversity of European social models, and to see labour-protection systems as embedded in the different cultural heritages of each country. Does the possibility of a Europe-wide ‘convergence’ on employment protection seem realistic to you?

Of course, to advocate, as some people do, making Europe into one big Denmark is neither more realistic nor more desirable than wanting to abolish multilingualism, in order to commune together in English at the altar of the single market. But one should not go too far in the opposite direction. The distinguishing feature of the European Community, compared to other customs unions was, until recently, that it did not confine itself to the free movement of goods and capital, but rather set itself the goal of creating a ‘social Europe’. The Treaty of Rome stated that the free movement of people would go hand-in-hand with the ‘improvement of the living and working conditions of labour so as to permit the equalization of such conditions in an upward direction’. [5] The construction of this social Europe remained, despite constant political obstruction by the British government, a goal shared by all other members of the ec, until its enlargement to include the former Communist countries. Competition between states and firms was thus subordinated to social enforcement rules, from which only the uk was partially exempt.

Despite the weakness and imperfections of this European social model, the ec remained faithful to the ideals of liberty and social justice of the postwar period, rejected from the outset by the Communist states and repudiated by the Anglo-Saxon countries and their continental epigones. In some respects the model has proved astonishingly robust, as demonstrated by the contributory pension schemes that have resisted assaults from those seeking to replace them with self-funded systems, which would only have increased the stakes being gambled away on the stock exchange. Comparative analysis helps us glimpse—beyond the obvious diversity of national systems—the possibility of a European model combining both freedom and security. In legal terms this could take the form of a protective statute that would figure in every employment contract, covering a whole lifetime. That level of universality would be needed in order to realize the model on a Europe-wide scale; then, of course, it could be adapted to take account of each country’s culture. For example France is dominated by public-sector employment; the evolution of that form could be the key to a renovation of our entire system of labour relations. The civil service is still in many ways the country’s spinal column, and offers a juridical framework through which limited-term employment contracts could be integrated into a professional statute that would guarantee life-long economic security.

Isn’t there a risk that the unification of Europe—market-driven, and limited to the promotion of competition and flexibility—will be seen as a threat by wage-earners, since employment protection is only available at a national level? Is increasing Euro-scepticism likely to be the upshot of this type of unification?

The European Community was the product of a political ambition to put an end to the bloody history that had brought about the collapse of virtually every state on the continent. That ambition took an economic detour: Europe’s peoples were invited to link their fortunes through their material interests and by opening their markets. True to an idea that dates back to the Enlightenment, the founding fathers saw trade as a means not only for making goods circulate, but for bringing people together. In that sense, the construction of Europe carried a double promise: firstly, the economic promise of Article 117, and secondly, a political promise of the unification of Europe around the values of freedom and solidarity—vital for peace, as the two World Wars had shown.

The accession of the former Communist states offered a historic opportunity to refound the Union on the basis of solidarity between its peoples, and give fresh impetus to the social model. Europe could then have become a real laboratory for ‘progressive equalization’ between ‘rich’ and ‘poor’ countries—an international social model for better working and living conditions. But for that to have happened, the accession would have had to have been conceived not just as enlargement, but as a genuine reunification of Europe. That in turn would have required taking into account the particular experience of each of these countries, and rethinking from first principles how social justice could operate within a community of states that have neither a common history or political culture, nor the same level of material wealth. It would have meant a reformulation of Europe, with the West agreeing to finance a generous ‘Marshall Plan’ for the East, and the East agreeing in return not to resort to social and fiscal dumping so as to compete with the countries from which it was seeking aid.

In practice, however, enlargement has simply meant the alignment of the East to the rules of the West. The collapse of the Soviet empire was interpreted by the Atlanticist powers as the final victory of their social model—historic proof of its absolute superiority. This path involved repeating on a much larger scale the mistake made by the Federal Republic of Germany of annexing the Eastern Länder, instead of working with them to establish a new constitution. Western Europe believed it could without further ado implant the acquis communautaire in countries with entirely different histories, political and juridical cultures, and levels of wealth from its own. The market economy and ‘social dialogue’ were imposed on countries that lacked entrepreneurs or independent trade unions, with Brussels presuming to lay down the law in states marked by a nationalism which, after decades of submission to the ussr, was quick to take offence. Whereas a reunification of Europe would have required the sealing of a new social pact, taking account of existing inequalities between member-states and aiming to ‘equalize upwards’, enlargement undermined the political foundations of an already fragile European social model.

Trained in the school of real Communism, and freshly converted to the benefits of the market, the ruling classes of the new member-states were hardly likely to be sensitive to ideals of respect for the rule of law and social justice. But their purely instrumental conception of legality made them perfectly ready to espouse neoliberal prescriptions, and replace the dictatorship of the proletariat with that of the market. This worldview has found untrammelled expression within the most juridically powerful, but also least democratic, institution in the eu: the European Court of Justice. Until recently marked by a sensible prudence in the social sphere, the Court has become a spearhead for enforcing downward competition between European workers, ever since the entry of several judges from ex-Communist countries. It has now set about allowing businesses in those countries to make full use of their ‘comparative advantage’ in the social sphere: in principle, banning strikes against relocations; exempting firms from the collective conventions of other countries in which they operate; and dismissing rights to national wage levels. [6]

Alongside this social disillusionment, the eu’s promise of peace has also been put into question. The fall of the Iron Curtain, without a single bullet being fired, held out the vision of a Europe reunified around a common political project, symbolized by the plan for a common currency. But the hope of seeing the European Union assert itself as a force for peace at international level went up in smoke with the Iraq war and the political rift it revealed. Not between peoples, since the unleashing of this war in violation of international law provoked, for the first time, the expression of a united European public opinion: a majority in every country was hostile to the invasion. Rather, it was a rupture between the governments of ‘new’ and ‘old’ Europe, resolved in the end by a takeover of the latter by neoconservative forces. Euro-scepticism springs from this double betrayal of the promises of peace and prosperity. The refusal by Europe’s rulers to take account of its electoral expression can only serve to exacerbate it.

Does the European Union simply reinforce the logic of globalization, then, or could the region serve as an appropriate level for articulating law and territory?

The answer does not depend on the supposed nature of things but on political choices, which need to be framed clearly if we do not want to see Euro-scepticism end in identitarian furies of the kind that gripped the Balkans. The de-territorialization of law is ultimately only one aspect of the process of globalization, which also finds expression in uncontrolled forms of re-territorialization—the dislocation of urban space in ghettos and gated communities, the rise of regional irredentisms and so forth. Stoked by deepening inequalities in material wealth, and daubed in the colours of multiculturalism, this territorial fragmentation hardly presages the society of the good life. Europe is indeed the appropriate level for redesigning frontiers that would be neither walls nor sieves. But this presupposes that it ceases to be a ‘limited democracy’ within which, in accordance with Hayek’s view, questions of the division of labour and distribution of wealth are removed from political discussion, to be governed by the ‘spontaneous order’ of the market. A return to the political is a precondition for posing the only worthwhile question, if we are not to resign ourselves to mass pauperization: which European trade boundaries are best able to safeguard the interests of the greatest number of people?

In order for this question—taboo on left and right alike—to be asked, European democracy must cease to be an empty phrase. For example, rather than the European Parliament being elected on the basis of national constituencies, voting for meps should take place on a truly European scale. Party lists of candidates from all member-states should be pitted against one another, with each putting forward a project for Europe that would transcend national borders. A reform of this kind would help to get Europe out of its rut, and return to its citizens the feeling that their destiny has not already been written by others.

Can Europe, or the eu, represent more than an economic and juridical project? Can one speak of ‘European values’, for example, without renouncing the universality of human rights?

For the drafters of the un Declaration of 1948, affirming the universality of human rights was not intended as a means to homogenize civilizations and ways of life. Rather, it was a question of drawing lessons from the bloody impasses to which projects for the scientific management of ‘human material’ had led. In this tragic history, Europe bears a heavy responsibility, and it was the recognition of those impasses that gave birth to the project of the Community. On the basis of that experience, it ought now to be able to present a different face of the Western world to that of the us, one less inclined to preach and more attentive to the way in which others see the future. On this point, there is room for a real political debate between those wanting to forge a common Euro-American front against the ‘rest of the world’, and those who think that, on the contrary, Europe should learn from its mistakes and from an awareness of its own diversity, to find the means for making a different voice heard, and the ambition to become a crossroads of civilizations.

The urgent priority today is to reformulate the questions we need to resolve. In the state of increasing political cretinism in which the eu currently finds itself, these questions are reduced to a caricatured contest between ‘pro’ and ‘anti’ Europeans, or between supporters and adversaries of the market economy. The real problems lie elsewhere. Just as there is no single market economy, but rather a range of juridical arrangements establishing different types of markets—according to the nature of the products and services exchanged, but also to histories and cultures—so there is no single European project, but rather several, on the economic and social plane as much as on that of international politics. One of the essential ‘values’ that has characterized Europe since the Enlightenment has been a faith in the capacity of people to govern themselves, and to be the architects of their own destiny. It is not by giving lessons in democracy to the rest of the world that the eu will remain faithful to this legacy, but by itself becoming a democratic arena in which it is possible to debate and choose between these different possible Europes.

[1] Alain Supiot, Au-delà de l’emploi: Transformations du travail et devenir du droit du travail en Europe, Paris 1999; English edition: Beyond Employment: Changes in Work and the Future of Labour Law in Europe, Oxford 2001. This interview first appeared in Esprit, January 2009.

[2] See, for example, Jean-Luc Gréau, Le capitalisme malade de sa finance, Paris 1998.

[3] Bruno Trentin, La città del lavoro: sinistra e crisi del fordismo, Milan 1997.

[4] See also Simon Deakin and Alain Supiot, Capacitas: Contract Law and the Institutional Preconditions of a Market Economy, Oxford 2009.

[5] As set out in Article 117 of the Treaty.

[6] See, respectively, the European Court rulings on the Viking and Laval cases of 6 and 18 December 2007; on the Laval case and the Rüffert case of 3 April 2008; and on the Commission vs France case of 15 June 2006.

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