Social policies, including higher education, should be a stable part of the Member State jurisdiction and competence, and not be an important part of European Union policies. Nevertheless, EU-level governing capacity creeps in as a result of what can be analysed as two developments. Firstly, the ECJ's profound impact on Member States due to the body of case law it draws together in a European context and secondly a shift initiated by the Member States themselves, as a reaction to global economic and political changes. Between ECJ case law and state reactions, a complex legal and political picture of action-reaction arises. European institutions and (Member) States are thus connected in complex ways. This questions the conferral of decision making power between Member States and the EU and thus federalisation of powers.
Traditionally, the federal state level has limited powers given by the composing states. Nevertheless, evidence suggests the EU does expand its powers beyond the limits of power conferral. Surprisingly enough evidence also suggests that in reaction Member States facilitate power transfers or ‘soft’ federalisation in joining policies efforts according to the Open Method of Coordination.
Student access to higher education has chiefly contributed to a European field of social policies. Although within the treaties Member States have explicitly formulated their legal sovereignty concerning higher education, it has been influenced substantively by ECJ case law. In contrast they have launched the Bologna process themselves, notwithstanding their apparent wish to maintain sovereignty, to create one European Higher Education Area and subsequently they have remarkably converged their higher education systems.
Taking access to higher education as a start, ECJ impact on national welfare policies and (in)voluntary Europeanization of Member State social policies is considered. Subsequently, our contribution discusses if this Europeanization reveals (varieties of) federalism beyond the European treaties.
