The financial and economic crisis of 2008 triggered countries to reduce their budgets, affecting peoples’ social standards and social protection across Europe. At the same time, social rights are protected in Europe by the European Charter of Fundamental Rights (EU Charter) and the Council of Europe Social Charter (Social Charter). This blog, based on Deliverable 6.3, discusses the role of the two Charters in times of crisis and whether the Charters’ social rights constitute a counterweight to austerity measures. Furthermore, the opportunities, but also the challenges still ahead of us in the area of social protection will be elaborated.

The EU Charter and CoE Social Charter

The EU Charter and the Social Charter both have a slightly different scope and set-up. The EU Charter is a broader catalogue of rights covering various social and workers’ rights. These rights include the right to fair working conditions, protection against unjustified dismissal, and access to health care, social and housing assistance. All EU Member States are bound to the social rights in this document, except for the United Kingdom and Poland, who have secured Protocol No. 30. This Protocol provides that the Solidarity Chapter containing social rights cannot create justiciable rights different from the degree that such rights are already protected under national law.

The European Social Charter was adopted by the Council of Europe, which means the scope of this document is broader in terms of State parties, as ratification is not limited to merely EU Member States. Still,  all EU Member States are parties to the Charter. Also, the Social Charter is more comprehensive in terms of the social rights it contains than the EU Charter. Relevant within the ETHOS context is that this document – unlike the EU Charter – is also binding upon Turkey.

The Limits of Social Fundamental Rights at EU level during the Crisis

The financial and economic crisis of 2008 triggered the reduction of national budgets, and these budget cuts largely affected social protection in Europe. The European Union’s response to the crisis was to adopt measures in the field of economic governance. These measures aimed to induce austerity by imposing limits on public spending and mandatory changes to labour markets, resulting in more flexibility and lower wages. Consequently, respect for fundamental rights, particularly social and economic rights, was negatively affected. Particularly vulnerable groups such as the elderly, youth, persons with disabilities and migrants have been undermined in effectively enjoying their fundamental rights. Therefore, the Eurozone crisis and the austerity measures taken in response to it have been detrimental and limiting to the EU’s social dimension and social status.

In the context of the crisis, numerous efforts have been taken by litigants to invoke the EU Charter and the Social Charter to challenge austerity measures taken by Member States. Litigants that have tried to invoke the provisions of these instruments range from citizens in labour disputes, to trade unions, NGOs and associations. However, the Court of Justice of the European Union (CJEU) has repeatedly demonstrated hesitance and caution in intervening in crisis measures, be it the European Stability Mechanism (see Pringle) or national austerity measures (see Portuguese Judges). Moreover, whenever the CJEU does have to strike a balance between economic freedoms and social fundamental rights, the latter often prevail, weakening employment and social fundamental rights and limiting their effective protection (see Viking, Laval, Rüffert and Luxembourg v Commission).

The EU Charter’s potential for social rights protection is limited by two aspects. First, its rights are only applicable when ‘acting in the scope of’ Union law (Article 51 Charter). This means these rights apply only when member states are implementing EU law or when they are derogating from it.  This has been quite a limitation for addressing (national) austerity measures with Charter rights. Secondly, the EU Charter merely contains social principles instead of self-standing rights, which means they often cannot be directly invoked, nor do they have horizontal direct effect. So, in the context of crisis, the role the Charters played is to some extent limited.

At the same time, in the recent case Bauer et al., the CJEU took a new stance on horizontal direct effect of the EU Charter in the field of employment and social fundamental rights. The latter ruling confirms that as regards the social right to paid annual leave (Article 31 (2) of the Charter), the EU Charter may be relied upon in a dispute between two private persons in the future. As such, Bauer et al. suggest a broader receptiveness of the European Court of Justice to re-address earlier case law, since the Court seems to reverse its restrictive approach in AMS[1] regarding the application of social rights in private disputes. Thereby, it reiterates the importance that European law places on a worker’s right to paid annual leave. This ruling should therefore be applauded as it takes EU social rights protection to a new and higher level and could provide for solutions in future crises scenarios that place social rights in jeopardy.

Opportunities for the Protection of Social Rights in the EU during and after times of Crisis

Two main opportunities for the protection of social rights have presented themselves, one during the crisis and one after. During the crisis, the European Committee of Social Rights (ECSR) has proven to be a key actor in EU social rights protection. It acted as a guardian of the Social Charter, by pleading for annulment of legislative reforms in the wake of the Troika measures, arguing non-compliance with the European Social Charter. Especially with regard to Greece and Spain, the ECSR has proven to be active in responding to social rights violations as a result of austerity measures taken during the crisis. Despite the provided opportunities for protection of social rights during the crisis, referral to the ECSR by the CJEU is not obligatory and only incidental.

Since the crisis, Union law has taken essential steps in the development of social rights protection, in particular by the EU Charter, which has become legally binding since the Lisbon Treaty. Also, the Commission introduced the European Pillar of Social Rights, which has been launched to complement the existing competences of the EU in the field of social policy, setting out principles and rights for the well-functioning of labour markets and welfare state. Furthermore, the Council of Europe started the Turin process in 2014, which has the aim to strengthen the normative system of the Social Charter and reinforce and reconcile the Social Charter’s relationship with EU law. These recently launched measures, which are aimed to guarantee social rights, such as the European Social Pillar, are generally conceived as a recognition that the EU’s commitments in the Eurozone crisis have neglected its social dimension. But such measures also provide for opportunities in the protection of fundamental rights.

Policy Recommendations

The following policy recommendations have been identified to allow Europe to move towards a more effective social rights protection for European citizens:

  • Elevation of so-called social principles – which do not constitute self-standing rights – into real enforceable rights that have the same equal status as civil and political rights;
  • More explicit recognition of the importance of the CoE Social Charter in fundamental social rights protection at EU level by the Court of Justice;
  • The EU legislator should involve the European Social Charter in legislative proposals as initiated by the European Commission;
  • More awareness should be created on the use of the EU Charter in the judicial domain, particularly when it comes to the application of this instrument by national judges;
  • The EU should prioritize the EU’s accession to the European Social Charter to better integrate its internal market rationale with its social dimension.

However, with a view to the EU’s limited competence in social policy matters, some of these policy changes are not easy to adopt, because the EU would need consent from its Member States. In a politically divided area such as social policy and employment, where decisions largely fall within the competence of Member States (Article 5 TFEU), it remains to be seen whether Member States are ready for such a change. In that context, an even more fundamental question for today’s experience of social justice by European systems would be the adequacy of the division of powers, particularly whether it is desirable and beneficial to extend Europe’s competences when it comes to the social pillars. In any case, the idea that social rights are also human rights that must be protected and respected at all times, but especially in times of crisis, should be made more visible at European level.

[1] In the Association de Médiation Sociale (Association de Médiation Sociale (AMS)  ECLI:EU:C:2014:2), which concerned the question of potential horizontal effect of the workers’ right to information and consultation enshrined in Article 27 of the EU Charter, the CJEU argued that this provision does not have horizontal direct effect, meaning that it cannot be invoked in labour-related proceedings between private parties. See CJEU Case C-176/12

by Barbara Safradin and Simona de Heer
written for the ETHOS Project as Working Paper within D6.3
Find the full publication on the ETHOS website