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On the Bolkestein Directive
This section marks the beginning of a collaboration between Biblioteca della libertà and URGE, the Collegio Carlo Alberto’s European Governance Research Unit on a subject of great interest for the present and future of Europe. The issue addressed in this number is the directive on the liberalization of services, better known as the Bolkestein Directive. The section, which is edited by Stefano Sacchi, tackles one of the key issues in the European political debate in recent years, one that has triggered strong mobilization and protests and contributed to the negative vote in the Constitution referendum in France. In the first article (The Bolkestein Directive: vicissitudes and open problems), Paolo Crosetto outlines the directive in detail, reviewing its economic and political motives and setting out the cases of both promoters and opponents. The article concludes by highlighting the problems left unresolved by the directive, albeit substantially modified with respect to the first draft presented by the European Commission. Crosetto in fact notes how the directive has excluded from its field of application numerous sectors whose initial inclusion had caused protest, how it has abandoned the notorious country of origin principle and how, in its final draft, it fails to address conclusively questions that are sure to re-emerge in the years to come. More specifically, the gaps left open concern the ambiguous distinction between services of general interest (SGI) and services of general economic interest (SGEI), the role granted by Community political decision-makers to the European Court of Justice and the real scope of the exclusion of labour law from the ambit of application of the directive. To the analysis of this latter aspect – crucial from the political point of view, since it was precisely on questions of labour law that the first draft of the directive triggered the violent reactions of unions and public opinion – are dedicated the articles by Stefano Giubboni and Giovanni Orlandini (The Bolkestein Directive and the rights of European workers) and Massimo Pallini (The Bolkestein Directive is without sin save for… sloth). The debate among the authors highlights the salience of the knots that still have to be unravelled. Giubboni and Orlandini show in fact how the first draft of the directive – and the final one even more so – does not alter the now consolidated labour law framework produced by the Court of Justice. It also reveals how the dynamics of regulatory competition and the connected risks of social dumping, which exist and need to be governed, result not so much from the directive as such as from the fundamental rules of the internal market. Pallini believes instead that the directive is a missed opportunity to clearly regulate aspects that will now be left to the discretion of the Court, and that by choosing to abdicate their functions Community legislators have given up the idea of using the Bolkestein Directive to make a contribution to the governance of the dynamics of regulatory competition in Europe.