A rebirth of social rights and state functions? Time to test the Charter!

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With the current economic crisis, the Union has a unique opportunity to make greater use of the new set of provisions offered by the Lisbon Treaty to enforce social rights at the European level, argues Klaus Heeger from the European Confederation of Independent Trade Unions (CESI).

Klaus Heeger is secretary-general of the the European Confederation of Independent Trade Unions (CESI). He contributed this commentary in exclusivity for EurActiv.

"Admittedly, the moment is badly chosen: The EU's policies are currently oriented towards austerity and privatisation on the one hand, and towards flexibility, mobility and employability of the workforce one the other – economic governance in the name of financial stability and competitiveness.

Hence, reducing state functions, social rights and labour law standards is on the agenda.

So why should the decade-long trend to subordinate these policies to single-market mechanisms be revised just now?

When carefully assessing it, times to do so are not at their worst.

While the European Central Bank (ECB) pumps billions of euros into the banking system, social protection and workers’ rights may also benefit from increasing claims for sustainable restructuring and strengthened domestic demand. Labour should be highly qualified, socially well-protected and … well-paid. 

In addition to that, as is increasingly recognised, it is the public sector which sets the framework for reliable economic conditions and which thus lays the foundation for sustainable growth and employment in a competitive Europe.

Finally, with the entry into force of the Lisbon Treaty, the Union has an impressive new set of provisions which have been inserted into the treaties or form integral part of them. 

Among many others, the social market economy is now confirmed as an objective of the Union, a new horizontal social clause is binding for all Unions policies, and an amendment provides for a new legal base for establishing the principles guiding services of general economic interests (SGEI). Evidently, the Charter of Fundamental Rights itself (having the same values of the Treaties) contains new sets of basic rules including entire chapters on equality, solidarity and citizens’ rights.

Of course, 'the mere fact that a right is included in the Charter does not mean that it is generally recognised as a fundamental right,' but expectations that these changes may call for a new appraisal of social rights and state functions as against economic freedoms may not be totally unfounded.

Firstly – regardless of whether certain provisions can be considered as conveying rights or shall only be regarded as declarations of principles - because of the mere fact that solidarity rights and principles as well as citizens´ rights are now explicitly integral part of the Union's primary legal order.

Secondly, the limitation of the scope of applicability of the Charter will be extremely difficult to uphold. As we know, the member states not only have to implement Union law, they also have to interpret and apply domestic law in accordance with the former. In addition, the Charter contains fundamental rights and freedoms applicable in areas in which the Union has no competence, or in which its competences are strictly limited.

To invoke these limitations – according to which the Charter shall only apply to Union bodies or to member states when implementing Union law – will become increasingly difficult, if not to say wrongheaded.

It is hence rather likely that the Charter, whether one likes it or not, will foster ‘unitarisation’ of fundamental rights, freedoms and principles, and that these will also encompass social and citizens´ rights.

And the consequences may be far-reaching.

In the ambit of social security for example, entitlements to social security benefits and social services may encroach upon the member states´ rights to define the fundamental principles of their social security systems. The basic justiciability of the thereto-related provisions of the Charter may have a profound impact in that matter – even if some provisions may not be invoked by citizens as conferring direct entitlements.

Similarly, the provision on labour law may have the potential of becoming concrete and sharp tools when brought before the EU jurisprudence: Dismissal protection, fair and just working conditions, right of access to placement services, reconciliation of family and professional life, etc. As a consequence, European rules on labour law may – in order to reach conformity with relevant rulings – receive new impetus.

Generally speaking, such unitarisation may lead to a new assessment of the weight of social rights as against the four freedoms. The right of collective bargaining and action, may, when for example interpreted in the context of the posting of workers and the freedom to provide services, lead to different assessments than those held by the ECJ in the famous Viking, Laval or Rüffert cases, i.e. to the assessment that certain measures which create obstacle to the free market principles are justified by the objective of ensuring the protection of workers.

A possible change of paradigm, i.e. to no longer subordinate social policies to the functionality of market mechanisms, may also be seen in the wording of the Preamble of the Charter according to which the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity, while it only ensures the five market freedoms.

Similarly, new provisions of the treaties may also lead to renewed well-founded claims to reinforce public in-house provisions of tasks and services. Proper access to SGEI for instance, based on the principles of quality, safety, affordability, equal treatment and universal access, or the rights to good public administration and transparency (applicable also when member states implement Union law) and the explicit reference to regional and local self-government: all rights and/or principles which may corroborate claims for the rebirth of the national public sector, ironically through EU legislation.

In brief, the Treaty´s new provisions are interesting tools to be put to the test."

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