The European Social Charter and the Employment Relation

Niklas Bruun, Klaus Lörcher, Isabelle Schömann, Stefan Clauwaert

• Publisher: Hart Publishing
• Year: 2017
• ISBN:
  9781509906338
• Edition: 1
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

This collection addresses the potential of the European Social Charter to promote and safeguard social rights in Europe. Drawing on the expertise of the ETUI Transnational Trade Union Rights expert network from across Europe, it provides a comprehensive commentary on these fundamental rights. Taking a two part approach, it offers an in-depth legal analysis of the European Social Charter as a new social constitution for Europe, investigating first the potential of the general legal frame in which the Charter is embedded. In the second phase a series of social rights which are related to the employment relation are examined in particular in light of the jurisprudence of the European Committee of Social Rights (ECSR), to demonstrate the crucial but difficult role of the Charter's supervisory bodies to secure the respect and promotion of social rights and national level, bearing in mind the reciprocal influence of other international social rights instruments. This examination is timely, given the pressure exerted on those rights during the recent period of economic crisis. Furthermore, in the light of the predominantly economic vision of Europe, such analysis is crucial. The collection is aimed at stimulating academic scrutiny and raising awareness amongst practitioners and trade unions about this important and equally necessary anchor of the social dimension of Europe in legal and political practice.

Part I

General Part^*

^*Throughout Part I and Part II, the term ‘Charter’, as well as any Article without further indication, refers to the Revised European Social Charter of 1996, unless it is otherwise specified (see the Introduction for more details).

The European Social Charter as the
Social Constitution of Europe^*

OLIVIER DE SCHUTTER

I. INTRODUCTION

BY COMPARISON WITH the attention given to the European Convention on Human Rights (ECHR), both in the case law of the Court of Justice of the European Union (CJEU) and in the treaties establishing the European Union (EU), the Council of Europe’s Social Charter is a relatively neglected instrument: a reference to the Charter appeared for the first time in the Treaty of Rome in 1987 and the CJEU refers to it sparingly, while the question of the EU’s accession to the Charter has been referred to only on rare occasions and its implications hardly studied in detail, except in academic writings.¹ It is perhaps ironic therefore that the Charter, at a time when it was still under negotiation, had an impact on the architecture of the Treaty establishing the European Economic Community (EEC) in 1957.²

Indeed, when the creation of an EEC was being considered, the question arose of whether the Treaty establishing it should also include social provisions: should the common market, based on the free movement of workers and the freedom of companies to provide services and to establish themselves across the EEC member states, go hand in hand with harmonisation of social protection and workers’ rights? That was the main question discussed by a group of experts chaired by the Swedish economist Bertil Ohlin when, acting at the request of the Governing Body of the International Labour Office (ILO), they ventured to examine the ‘Social Aspects of European Economic Co-Operation’. The Ohlin Report concluded that improvements in living standards and labour conditions in the common market should essentially result from the functioning of the market itself.³ The experts acknowledged, however, that these results held only ‘when account is taken of the strength of the trade union movement in European countries and of the sympathy of European governments for social aspirations, to ensure that labour conditions would improve and would not deteriorate’,⁴ and that their conclusion depended on the strength of the ability of both workers’ and employers’ organisations to organise at transnational level.⁵ Most importantly, they emphasised that this ‘equalisation in an upward direction’ of labour standards could be facilitated if all European countries joined the international conventions adopted by the ILO or the Charter, then under negotiation within the Council of Europe. The experts considered that it would be useful

to consider what steps might be taken to promote the more widespread application of the provisions of these Conventions by European countries and thus add to their effectiveness as instruments for solving certain of the social problems connected with closer European economic co-operation.⁶

One might have thought, therefore, that links would have been established between the integration of the economies of the EEC member states and the Charter, after this instrument was signed in Turin on 18 October 1961—at a minimum, by encouraging the countries concerned to ratify the Charter and perhaps to agree on a core set of provisions of the Charter that they should all accept under the original ‘à la carte’ system of commitments it inaugurated;⁷ or perhaps even by establishing a mechanism through which the EEC itself would align its secondary law with the requirements of the Charter.

This did not happen. Only with the adoption of the Single European Act (SEA), signed in Luxembourg on 17 February 1986 before entering into force on 1 July 1987, did the Charter make its first and timid appearance in the Treaties establishing the European Communities (EC).⁸ The SEA put in place the mechanisms designed to ensure that the internal market would be established progressively over a period expiring on 31 December 1992, but at the same time strengthening the ability of the EEC to adopt provisions in the social policy area. In the Preamble, the Heads of State and Government expressed their determination to ‘promote democracy on the basis of fundamental rights recognised in the constitutions and laws of the member states, in the [ECHR] and the Charter, notably freedom, equality and social justice’. Yet in 1989, when the President of the European Commission, Jacques Delors, insisted that the EEC commit to providing the internal market with a strong social dimension, he encouraged the adoption of a Community Charter on the Fundamental Social Rights of Workers (CCFSRW).⁹ This was proclaimed at the Strasbourg European Summit of 9–10 December 1989, in the form of a political declaration adopted by 11 of the 12 EEC member states.¹⁰ The signal was clear: the CCFSRW resulted from a deliberate choice to adopt a catalogue of social rights specific to the EEC, rather than to seek to implement the acquis of the Council of Europe in this regard. Thus, just as ‘social Europe’ was emerging as part of the objective of completing the internal market, the Charter was increasingly marginalised.

In 1992, the Treaty on the European Union (TEU)¹¹ assigned to the EC, inter alia, the objective of achieving ‘a high level of employment and of social protection’,¹² and under the Protocol on Social Policy, 11 member states agreed to rely on the institutions, procedures and mechanisms of the EC Treaty to implement an Agreement on Social Policy (the United Kingdom again declining to join). However, confirming the separation between the construction of ‘social Europe’ within the EU and the Council of Europe, the TEU makes reference not to the Charter, but instead to the 1989 CCFSRW. Only in 1997, with the adoption of the Treaty of Amsterdam and the repatriation, within the EC Treaty, of the Agreement on Social Policy, was the Charter again referred to. Here again, however, the references were rather discrete. In addition to the 1961 Charter being mentioned in the Preamble, the new Article 117 inserted into the EEC Treaty (later Article 136 EC, now Article 151 TFEU) mentioned the Charter as a source of inspiration for the European legislator in the social policy field. It was not a binding reference, however, nor did it instruct the CJEU to uphold the Charter in the implementation of EU law.¹³

The relative invisibility of the Charter during this period stood in sharp contrast to the attention paid to the ECHR. While emphasising the ‘special significance’ of the ECHR as a source of inspiration for the development of the general principles of law which it sought to ensure respect for¹⁴—a position endorsed in the Treaty of Maastricht, which referred to the ECHR in Article F (later Article 6 TEU)—the CJEU refused to elevate the Charter to the same status. In 1999, one Advocate General of the CJEU explained that, because the Charter allowed the Contracting Parties to choose at the moment of ratification which provisions of the instrument they would be bound by, the rights listed in the Charter could not be considered fundamental rights that were generally recognised and thus worthy of being included among the general principles of EU law.¹⁵

II. THE EU CHARTER OF FUNDAMENTAL RIGHTS (CFREU)

The launch of the negotiations on a CFREU presented the EU with an opportunity to bridge that gap and to align the status of the rights and freedoms of the Charter with that of those listed in the ECHR. However, the difference in treatment between the two Council of Europe instruments was made, if anything, even more visible. The Cologne European Council of 3–4 June 1999, which launched the process that would lead to the adoption of the CFREU, instructed that ‘In drawing up such a Charter account should … be taken of economic and social rights as contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers (Article 136 TEC), insofar as they do not merely establish objectives for action by the Union’.¹⁶ Trench warfare was fought for months about the significance of these words. It was finally won at the end of the summer of 2000 by the partisans of inserting social provisions in the CFREU, led by the representative of the French government, Guy Braibant. By then, however, it had become clear that the CFREU would not be legally binding, at least at an initial stage: what may have been impossible to obtain from the British delegate, Lord Goldsmith, in a binding text, probably had become easier to achieve in what was going to be (according to the consensus that had been reached by then) a mere political declaration.¹⁷

A.Social ‘Rights’ or ‘Principles’?

Moreover, the victory was only partial.¹⁸ As part of the compromise reached in July 2000, when the drafters of the CFREU finally struck an agreement on the inclusion of social provisions in the CFREU under discussion, it was understood that some of these provisions to be listed in the CFREU would only be justiciable in combination with legislative or other measures adopted at EU or member state level, and as a means to interpret such acts, or to assess their validity: in other words, such social guarantees were not to be invoked as free-standing ‘subjective rights’ that the individual could claim, unless some measure had been adopted to implement the said guarantee.¹⁹ It is this understanding that came to be codified in Article 52(5) of the CFREU when, with the adoption of the Treaty of Lisbon in 2007, it was agreed to integrate the CFREU in the Treaties.²⁰ Article 52(5) states:

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.

While it may not have been easy to anticipate how the CJEU would read this restriction on its ability to enforce the social provisions of the CFREU, the developments since the entry into force of the Treaty of Lisbon illustrate its reluctance to move beyond this narrowly defined mandate in order to strengthen the protection of social rights. Social rights as ‘principles’ have occasionally been relied upon as a means of interpretation of EU law. In the case of Kamberaj, for instance, the CJEU relied on Article 34 CFREU in support of its view that the notion of ‘core benefits’, for which the 2003 Directive on the status of third-country nationals who are long-term residents imposes a requirement of equal treatment with citizens of the Union, necessarily should include housing benefits.²¹ According to Article 34 CFREU, the European Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources. The CJEU considered that ‘in so far as the [housing] benefit in question in the main proceedings fulfils the purpose set out in that article of the Charter, it cannot be considered, unde...

Table of contents

• Cover
• Title Page
• Contents
• Preface
• List of Contributors
• Foreword
• Introduction
• Part I: General Part
• Part II: Specific Articles
• Conclusions—The Potentials for the Charter to be Used
• Index
• Copyright Page