Editorial of January 2018

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by Sergio Maia, Managing Editor


The European Pillar of Social Rights has taken the first steps – and now how far will it make the Union walk?

One year after the end of the public consultation period of the European Pillar of Social Rights (EPSR) that preceded its formal presentation and adoption, it is an inviting, seemingly appropriate time to remark its concrete meanings and consequences. The EPSR and its political and legislative initiatives (such as the adoption of a clarification of the Working Time Directive or the proposals for a Directive on Work-Life Balance and for a Directive on Transparent and Predictable Working Conditions) have started to redesign the materialisation of the social model underlying the public reason of the Union. Those public reason and social model are embedded in Article 3(3), TEU; Article 9, Article 151, TFEU, just to name a few.

According to that set of rules, the Union is bound to full employment, social progress, the fight against exclusion, the promotion of social justice, social protection and cohesion. To sum up, in other words, there exists, I believe, a social democratization rationale behind the objectives of the integration to which the exercise and the enjoyment of citizenship rights and fundamental rights protection are directly associated. This social democratization drives (and must do so) the fulfilment of the economic freedoms as well as the rights enshrined in the CFREU. Without social democratization, the European citizenship and its fundamental rights are worth very little. The case-law of the CJEU in Dano, Alimanovic and Commission v. UK proves just that.

The two aforementioned spindles are in the core of the Union based on the rule of law as the fruition of those rights – i.e., social model – shapes the purposes of the public reason of the European polity. Then, how does the Pillar promote the European social model?

Considering that the social policy of the EU is shared between the Member States and the Union itself which complements the action of national authorities, the Pillar contains a set of principles and measures to support equity in labour markets and social protection systems in the euro area. It should be recalled that the Union does not have the power to harmonize national social security systems but, instead, to coordinate them and thus to influence the content of Member States’ national policies in this domain. Until December 2016, the proposal was publicly consulted, receiving the different contributions from the social partners, Member States, institutions, civil society and citizens in general. Thereafter, the proposal received two particularly relevant contributions: the Opinion of the Economic and Social Committee of 25 January 2017 and the report in the European Parliament’s draft resolution of 20 December 2016.

As stated in the document of the Committee, amidst “a prolonged period of high unemployment, unacceptable levels of youth unemployment, economic instability and deterioration in the social situation including increased poverty and inequality levels […] Eurosceptic, populist and nationalist parties seek to capitalise on these fears by offering simplistic solutions to complex problems.”

The Committee has taken the stand in favour of the comprehension of the Pillar in all phases of life and it manifested its concerns for the non-inclusion of the asylum seekers and migrants. Likewise, it has suggested the inclusion of mechanisms to handle the changes in the labour market from a strategy for the employment of the future, where digitalisation and the Digital Single Market are present. It has also mentioned the convergence in salaries, gender equality, integration of minority groups, an inclusive social security net that involves social assistance, social services, healthcare and housing.

Finally, the Committee claims “much more clarity” concerning the content, funding and that the “citizens know who is responsible and accountable for each decision.” Regarding the scope of application, it upholds that the Pillar should produce effects in all Member States and not only in the Eurozone and that it integrates the debates in the European Semester.

Whilst the report of the European Parliament, approved with 396 votes in favour, 180 against and 68 abstentions and whose rapporteur was MEP Maria João Rodrigues, presented a series of concrete proposals for the Commission to assess and introduce in the plans of the Pillar. The document begins with the consideration on the reality that “the must respond swiftly and visibly to increasing frustration and worry among many people about uncertain life prospects, unemployment, growing inequalities and lack of opportunities, in particular for young people” and that the European social model should train the people to the social market economy, enabling “sustainable prosperity […] based on solidarity, social justice and equal opportunities, a fair distribution of wealth, intergenerational solidarity, the rule of law, non-discrimination, gender equality, universal and high-quality education systems, quality employment and sustainable job-rich and inclusive growth over the long term”.

Based on such factual framing and insisting in the encouragement for social investment of the public sector, the Parliament listed 47 specific requests of actions by the Commission. One of them was a frontal response attempting to overcome the non-application of the EU law in social matters under the domain of Member States, as the reduction of wages to comply with national annual budgetary goals, whose most significant icon was the order of the CJEU in the case Sindicato dos Bancários do Norte (C-128/12). In other words, it is the attempt of the EU law to influence the national policies to fulfil the model of social democratization.

The fact is that in April 2017 the Commission firstly presented the European Pillar of Social Rights under two legal forms: a recommendation, of immediate force, and a proposal of joint proclamation of the Pillar by the Parliament, the Council and the Commission itself. The Pillar, as proposed by the Commission in the normative deliberation of the Union, contains 3 chapters, namely, equal opportunities and access to the labour market; fair working conditions; and social protection and inclusion (the 20 principles covered along the chapters are here and include gender equality, safe job, social dialogue, balance between private and professional life, health, data protection, social protection, childcare, benefits, pensions and minimum income, housing, etc.).

So, apart from the ongoing legislative aspects (most recent proposals and discussions here), what are the weaknesses of the Pillar?

Well, the Pillar might be indeed criticised for maintaining the social protection as inductor of economic performance. The dynamics of social solidarity cannot depend upon the economic functioning. Instead, the social protection in the broader sense must come into play, mostly, when the economic does not function and/or to preserve equally the integrity of society.

It was precisely the distortion of the economy from means to ends of the integration that aggravated the cleavages amongst the European citizens.

The logics of the social policies must stop being the one of trading and (re)assume the one of the European citizenship as the access gateway to the ownership of fundamental rights in order to attend the demands for social democratization that the public reason imposes and that the peoples claim from their Union based on the rule of law.

It is beyond doubt that the antinomy between budgetary restrictions and social model is only resolved with the political calling of investing in social protection.

And that is where the Social Pillar might be revolutionary. As it is today, there is no European social model without articulation between Member States and the institutions of the Union. But the Pillar has the potential to promote definitive advances such as the European social pension and the European minimum wage, as provided for in Article 153(1) and 352, TFEU.

The Pillar is designed so that both initiatives are adopted sometime and are accompanied by the due strengthening of the Union’s autonomous budget with the creation of a new European tax on the large companies of the digital economy that develop activities not completely labelled by fiscal law.

If the Union is to levy it to implement typically European social rights, the genuine enjoyment of the substance of the rights conferred by virtue of the citizenship. Another consequence might be also the drainage of populist-nationalist speeches that oppose the integration arguing a supposed lack of action.

The Union based on the rule of law does not endure without a resistant social support, deep-rooted in the perception of and in favour of the peoples, in the scope of the assistance benefits, of the social security inalterability, of workers’ rights, of inclusion, of family income, of non-discrimination, etc. That is, the Union based on the rule of law does not endure without materialising policies in favour of its public reason – even so that the classic economic freedoms can be properly enjoyed in full by more and more citizens.

To this extent, the OMT (Gauweiler) judgement by the CJEU on the role of the European Central Bank in the Economic and Monetary Union is a guiding light to realign the social market economy no longer under the ordoliberal paradigm, but instead under the social policies ignited by Jacques Delors. That requires a non-orthodox vision of the market and the society, which was exactly given by the Court in the OMT ruling.

In conclusion, it is in the extent of the underlying vision of the OMT decision about what the policies of the Euro are and, likewise, the substantial-iser potential of the EPSR that it may cease being necessary to advocate for a political Union because the purposes it aims will already be in place.

I.e., it is possible, I believe, to contour the problematic obstacles of the political Union by materialising the social rights that assure the unconditioned access to the fruition of the substance of rights and the exercise of the genuine enjoyment of the European citizenship, which is to say the Union based on the rule of law. Hence, we will accomplish, at least, the same results, surpassing constraints of the Member States that play in the lower level of protection and, at the same time, attending the European citizens of those Member States who are the ones who most need the Union to act.

Picture credits: Apollo 11 Bootprint by NASA on The Commons.

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