The place of social rights in the EU legal order
mise en ligne :06 05 2015 ( NEA say… n° 156 )
The recognition of social rights at the European level and their incorporation inside the European Union (EU) legal system has not been an automatic process at the beginning of European integration. Conversely, it followed an evolutionary path which has unfolded over a long period of time and has required the intervention of a plurality of actors.
The aim of this paper is to give an overview of the historical development of the recognition of social rights in the European Union, and to offer a problematic view of this issue. Therefore, a first section will be dedicated to trying to define the concept of social rights and to raising the issue of the status of social rights inside the broader set of fundamental rights, in the conviction that this issue is likely to have a major impact on the effective and substantial recognition of those rights. Secondly, I will draw a trajectory of the evolution of the recognition and promotion of social rights in the European Community (EC), later become European Union, until the adoption of the EU Charter of Fundamental Rights (also known as Nice Charter) in order to highlight how their relationship with the other fundamental rights (i.e. civil and political) has been interpreted in the different phases. Finally, based on an analysis of the point of arrival of such trajectory (namely the text of the Nice Charter and the provisions of the Treaty of Lisbon related to the latter), I will try to answer the question whether this document has changed the status of social rights among the other fundamental rights and has thus overcome the classical dichotomy between civil/political rights and social rights.
The choice of focusing, among the fundamental rights, particularly on the recognition of social rights in the European Union is justified firstly by the fact that such rights play a major role among the fundamental values upon which European democratic societies are traditionally built. Secondly, and most importantly, it is important to stress the even greater salience of the promotion of social rights in times of globalization on the one hand, and of economic crisis on the other hand. Indeed, whereas social rights have so far traditionally been recognised and enforced at the national level, the main actors in the market (the entity which is most likely to affect the protection of social rights) operate nowadays in a global and transnational context. Such context is likely to threat the protection of social rights as a result of the pressures to deregulation it triggers. Finally, social rights in Europe are nowadays under the threat of the economic crisis, as the realization of such rights requires substantial investments of resources by the States.
I. Social rights as “subordinate” rights?
The concept of “social rights” is one of the most controversial in the legal doctrine, as it primarily presents a major problem of definition. Such problem originates from two main sets of difficulties: one relating to the heterogeneity of social rights (due to the diversity of sources from which social rights are derived), and another linked with a traditional conception of social rights as “subordinate” rights and the subsequent debate over the classification itself of them as “actual” rights.
Indeed, whereas it is relatively simple to trace a common definition of civil and political rights in modern liberal democracies, the definition of social rights is far more blurred. This should be intended both in a “geographic” dimension (i.e. their recognition varies much among the different countries, even among the Member States of the European Union) and in a “temporal” dimension (i.e. they belong to an open catalogue which is likely to change over time according to the evolution of society). As regards the heterogeneity among Member States in the recognition of social rights, it will suffice here to note that social rights are not even classified as “rights” by all Member States (e.g. the United Kingdom and Germany do not include social rights in their Constitution). Such degree of uncertainty in the definition of social rights affects dramatically their effectiveness.
Secondly, the historical tardive emergence of social rights (20th century) in comparison with that of civil and political rights and freedoms (18th century) has had a major impact on their recognition. Indeed, although the rhetoric of “indivisibility” of rights is used more and more frequently, the discourse on fundamental rights has so far been heavily affected by the traditional dichotomy (developed by T.H. Marshall in 1949) between “classic” civil and political rights on the one hand, and “second-generation” social and economic rights on the other. The main difference between the two is that, whereas civil and political rights impose on the State a duty of non-intervention, social and economic rights put in place an obligation of positive action.
As a result, whereas civil and political rights have received broad recognition in liberal democracies, social and economic rights tend to be considered as more controversial and to have a subordinate status. This different evolution is clearly shown in the fact that the Council of Europe, in its willingness to recognise and enforce fundamental rights, has drafted two different treaties (the European Convention for the Protection of Human Rights of 1950 and the European Social Charter of 1961), operating through different procedures.
Following such dichotomy, civil and political rights tend to be regarded as proper fundamental rights (connoting inherent rights of the individual, and thus directly enforceable), whilst, with regard to social and economic rights, a debate has emerged over their status, and namely over their “justiciability” (that is, their capability of being invoked in a court of law or applied by judges).
Moreover, social rights have been heavily criticised by the liberal doctrine, which regards them as operating in tension with the freedom of the market (insofar they entail an intervention of the State): some even fear that they are eventually likely to lead to the establishment of a totalitarian State.
In the context of the EU legal order, these problems must be added to the fact that European integration was initially conceived merely as a process of economic integration. For this reason the promotion of social rights at the beginning did not figure among the priorities of the European Community and for many years a European common idea of social rights could hardly be identified.
Nevertheless, the evolution of the treaties has contributed to a gradual refocusing of the European Union on citizens and on the protection of fundamental rights, and to a progressive recognition of social rights. Despite these developments, it can be noted that the recognition of social rights in the European Union has followed a different path from that of other fundamental rights. Some authors have thus stressed, in observing the conduct of the European Court of Justice (ECJ), that some reluctance can be observed in providing social rights with real effectiveness. This can be seen especially if looking at two dimensions: the rare references made to instruments such as the European Social Charter, and the fact that, while the ECJ has often referred to civil and political rights as general principles of European law, it never provided social rights with such status.
II. The recognition of social rights in the EU legal order: a historical overview
II.I Outside the EU: the Council of Europe and the European Social Charter
One of the first steps in shaping the definition of social rights at the European level did not take place in the EU framework but in the broader context of the Council of Europe.
The European Social Charter was signed in Turin in 1961 (later revised in 1996) and was conceived by the Council of Europe as strictly linked, rather complementary, to the European Convention on the Protection of Human Rights (ECHR) guaranteeing civil and political fundamental rights. However, many authors point out that the former instrument was ultimately overshadowed by the Convention and thus largely ignored. In addition, the implementation of the rights listed in the Charter was based for a long time entirely on a mechanism of reports submitted by the signatory States to a Committee of independent experts, whereas the Convention was subject to a proper jurisdictional mechanism.
As for the content of the Charter, this document enumerates a number of rights related to employment, health, social security, non-discrimination, housing, and so forth. The European Social Charter is characterized by what has been called an “à la carte” approach, which means that the State parties can select the provisions of the Charter by which they will be bound.
Despite the importance of this document, as far as its role in the recognition of social rights in the European Union is concerned, it can be noted that the European Social Charter has not been a primary source of reference for the development of a social dimension of the Community. In this respect, many authors have stressed the rare and selective references made to this document by the Treaties and the European Court of Justice. For these reasons, it has been noted that “the social dimension of the European Community has developed largely in parallel with the Council of Europe’s Social Charter, rather than building on it, notwithstanding the fact that this instrument represents the main normative source of social rights on the European continent” (O. De Schutter, “Le role de la Charte Sociale Européenne dans le développement du droit de l’Union Européenne”).
II.2 The EU level: a gradual recognition of social rights
When the European Economic Community was established in 1957 through the Treaty of Rome (TEC), there was no reference to any role of the Community in the promotion of human rights, and particularly social rights. The silence about the promotion of fundamental and social rights was mainly due to the purely economic perspective in which European integration was conceived for the first two decades. Indeed, the dominant view was that the productivity gains related to the establishment of the common market would automatically lead to a gradual improvement of social conditions in Europe: therefore, it was deemed unnecessary to assign any competence to the European Community in the social domain.
This perspective changed during the 1970s as a result of three parallel processes. Firstly, the European Court of Justice began to derive the protection of fundamental rights from the Member States’ constitutional traditions and thus, through its judgements, to refer to fundamental rights as part of the “general principles” of Community law. Secondly, at a more political level, the notion of a political and social integration of the European Community gradually emerged (cf. Joint Declaration on fundamental rights issued by the EC institutions (1977), Spinelli Project (1984), etc.) Thirdly, concerning more specifically social rights, the economic crisis in the 1970’s unveiled the urge to provide the European Community with a social dimension.
However, the turning point in the establishment of a social dimension of the EU is the signature of the Single European Act (SEA) in 1986. This treaty came just after the enlargement of the European Union to three new Member States (Greece, Portugal and Spain) which presented major differences in their economic and social standards compared to the “old” Member States. The fact that such differences were likely to trigger a problem of “social dumping” severely pushed the EC to act in order to foster the harmonisation of national legislations in the social field. Not only did a European Treaty refer for the first time to the European Social Charter, but it also provided the European Community with a partial competence in the social field and added to the Treaty of Rome an entire chapter devoted to economic and social cohesion.
Another major step in the recognition of social rights at the EU level is the adoption of a Community Charter of the Fundamental Rights of workers at the Strasbourg European Council of 8-9 December 1989. However, the proposal put forward by the Commission for a social charter of citizens was heavily revised and led to the adoption of a charter which provided workers (instead of all citizens) with a catalogue of social rights. Despite its symbolic importance, the force of the Charter is strongly limited by its nature of mere political declaration (that is, having no legally binding value) and by the fact that it does not provide the Community with any additional competence in the social field. In addition, despite its non-binding nature, the United Kingdom decided to opt-out from the Charter.
Nevertheless, the ultimate importance of the Community Charter lies in the fact that it was meant to act as a source of inspiration for future initiatives and legislation in the social field, thus as a soft instrument for the promotion of social rights.
The establishment of the Economic and Monetary Union in the 1990s brought the urge of a social dimension of the Union back on top of the EU agenda. Therefore, the Maastricht Treaty of 1992 was supplemented with an additional Protocol and Agreement on Social Policy.
II.3 An EU catalogue of fundamental rights: the Nice Charter
The EU Charter of Fundamental Rights, also known as Nice Charter, was proclaimed at the 2000 European Council in Nice, after being drafted by a Convention composed by representatives from Member States, the European institutions and the national Parliaments. The Charter does not add new rights to those already part of the acquis communautaire. Nonetheless, it has the aim to gather in a single document all the rights resulting from different sources: the constitutional traditions of the Member States, the existing EU primary law, the ECHR, the European Social Charter, the Community Charter of the Fundamental Social Rights of Workers, as well as the case-law of the ECJ and of the European Court of Human Rights.
The main innovation of the Charter is in its structure, as the Nice Charter does not reproduce the classical distinction (and hierarchy) between civil/political rights and social/economic rights. Conversely, it proclaims the indivisibility of rights by structuring the catalogue around six main chapters: Dignity (I), Freedom (II), Equality (III), Solidarity (IV), Citizens’ rights (V), and Justice (VI). In each title, a mixture of civil, political, social and economic rights can be found. Moreover, in expressing the principle of rights deriving from the citizenship of the Union, the Nice Charter also marks an important step in the process of untying the enjoyment of fundamental rights from the economic purposes of the common market.
Despite the solemnity of its proclamation, the Nice Charter remained for some years a non-binding declaration. A first attempt to modify its status was done in the process of drafting a Constitution for the European Union by integrating the Charter in the Constitutional Treaty. After the failure of the latter, it was decided in the Treaty of Lisbon to provide the Charter with “the same legal value of the Treaties”, thus positioning the Charter among the sources of EU primary law and providing it with legally binding force.
Iii. The impact of the EU charter of fundamental rights on the status of social rights
Many authors have pointed out that the drafting of an EU catalogue of fundamental rights which includes social rights can be regarded as a potential turning point in the conception of social rights and of its relationship with the other fundamental rights. For some, providing social rights with an equal legal status to those of civil and political rights entails providing social rights with direct justiciability: in this view, the Nice Charter is seen as likely to play the role of a “Trojan horse” in the extension of EU competences. Others stress the fact that proclaiming the indivisibility of rights means overcoming the dichotomy between political and civil rights. This view seems to be supported by the fact that fundamental rights are listed in a single document instead of the plurality of instruments devised in the past (e.g. ECHR vs. European Social Charter). These potential consequences of the insertion of social rights into the EU Charter were clear during the negotiations in the Convention: this is testified by the fear, expressed by some Member States, that the EU would be assigned with new competences in the social field in order to ensure the protection of the rights listed in the Charter. However, scholars agree that the eventual realization of this potential lies largely in the future activity and case-law of the European Court of Justice.
Nevertheless, the analysis of the text of the Charter as amended in 2007 reveals that its real impact on the status of social rights among the fundamental rights was rather ambiguous. Indeed, it is
important to note the Charter draws a distinction between “rights” and “principles”. Although the difference between the two is believed by the doctrine not to be very clear (according to article 51.1, rights must be “respected” while principles must be “observed”), stating such a distinction seems to reproduce the dichotomy between civil/political rights and social rights or however to create a new hierarchy of rights. Moreover, during the process which led to the recognition of the legally binding value of the Nice Charter, this document was amended in 2007. This amendment resulted in the insertion in the Charter of some paragraphs in article 52. According to the new version of the article: “The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality”.
Secondly, the indivisibility of rights proclaimed in the Nice Charter seems undermined by the Protocol n. 30 of the Treaty of Lisbon. This Protocol states that “the Charter does not extend the ability of the Court of Justice of the European Union […] to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms” and specifies that this provisions applies particularly to the rights listed in the Solidarity chapter (“[…] nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom”). The partial opt-out of Poland and the United Kingdom thus seems to show that the concept of the indivisibility of rights is not shared by all Member States.
Finally, looking at the broader picture, namely at the Treaty of Lisbon, the endurance of a different status of fundamental rights can be found in the different treatment accorded to the two main European catalogues of fundamental rights, namely the European Convention for the Protection of Human Rights and the European Social Charter. Indeed, whereas the commitment of the EU to the promotion of human rights is strengthened by the proclaimed intention of EU accession to the ECHR (on this topic, cf. l’article d’EU-Logos “Adhésion de l’Union européenne à la convention européenne de sauvegarde des droits de l’homme et des libertés fondamentales”, http://www.eu-logos.org/eu-logos_nea-say.php?idr=4&idnl=3427&nea=155&lang=fra&lst=0), no parallel accession to the European Social Charter is envisaged.
To sum up, the contribution of the EU Charter of Fundamental Rights in the recognition and the strengthening of social rights in the European Union cannot be denied, as the Charter contributed partially to shaping a conception of rights which are no longer subordinate to the realization of the common market. Moreover, its reference to the indivisibility of rights shows the will to overcome the classical dichotomy between different kinds of fundamental rights. However, an analysis of the text of the Nice Charter reveals that reality is more nuanced and some obstacles persist for an equal status of social rights among fundamental rights in the EU legal order.
Pour en savoir plus:
-. Charter of Fundamental Rights of the European Union (2000, as amended in 2007)
-. Community Charter of the Fundamental Social Rights of Workers (1989)
-. European Social Charter (revised) (1996)
-. M. Benlolo-Carabot (2012), “Les droits sociaux dans l’ordre juridique de l’Union Européenne” (FR), http://revdh.revues.org/120
-. S. Coppola (2011), “Social Rights in the European Union: The Possible Added Value of a Binding Charter of Fundamental Rights” (EN), http://link.springer.com/chapter/10.1007/978-94-007-0156-4_11#page-1
-. J.P. Jacque, (2008), “La protection des droits fondamentaux dans l’Union européenne après Lisbonne“ (FR), http://leuropedeslibertes.u-strasbg.fr/IMG/EdL_26_doctrine.pdf
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