by Pietro Masala, Postdoctoral Research Fellow (García Pelayo), CEPC, Madrid

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On 17 November 2017 the European Pillar of Social Rights (EPSR), a document proposed by the Juncker Commission expressing “principles and rights essential for fair and well-functioning labour markets and welfare systems in 21st century Europe” (as said in its Preamble), was solemnly proclaimed by an interinstitutional conference in Gothenburg, in the framework of a “Social summit for fair jobs and growth”. It is, of course, too early to evaluate the concrete impact of this document on the development of the social dimension of the European Union. Nevertheless, it is possible to examine its contents and the acts which prepared its proclamation (namely, a Commission communication establishing the EPSR and a Commission recommendation setting the EPSR principles and rights[i]), in order to express some essential critical remarks.These shall help understand the EPSR’s constitutional meaning and implications in the present phase of the integration process.

It is widely recognised that, during the last decade, the financial crisis and, especially, the new economic governance which has been introduced and implemented in the eurozone as a response, have significantly increased the pre-existing “constitutional imbalance between ‘the market and ‘the social’ in the European Union”[ii] . The asymmetry between these two components was justified, at the early stages of the integration process, by a clear separation of powers and tasks between the European Communities (the market) and the Member States (the social), but it is no longer tolerable in the present Union. Both external and internal factors affect the sovereignty of the Member States in defining and implementing their social and employment policies, in a way that has reduced substantive equality and internal solidarity in European societies. On one hand, the new context of globalization implies new challenges for the “European social model”; on the other hand, the development of the European single market and of the Economic Monetary Union has had a strong impact on national welfare states.These factors as a whole induce to believe that the conferral of more extended powers (and resources) to the Union, allowing the partial federalisation of the social domain, is desirable, as it would entail a more effective protection of social rigths, through a fair cooperation between the Union and the Member States.

Some attempts were made, before the crisis, in order to reduce the original gap, by providing some legal foundations for the partial development of a social dimension of the Union: namely, since the approval of the Treaty of Amsterdam, when some limited competences were conferred to the European institutions (especially the Commission and the Council) in the fields of social policies and employment. Later, the Treaty of Lisbon implied a reinforcement of the social aims and objectives of the Union, together with the “constitutionalisation” of the Charter of Fundamental Rights (including a quite rich and detailed list of social rights in its title about “Solidarity”), but the Union’s powers and resources in that domain were not increased. Therefore, the positive integration in “the social” has remained quite weak and ineffective, as it could be based almost exclusively on soft law tools (such as the open method of coordination, implemented within the Lisbon and Europe 2020 strategies).

Finally, the institutional changes introduced in the context of the crisis have implied  – instead of the development of the (increased, though still insufficient) social potential of the recently reformed Treaties – a drastic subordination of the social objectives to the financial stability and to the market: the “collision” between these priorities and the European Social Model[iii] has concretely determined the “displacement of social Europe”[iv]. This has occurred as a result of a “constitutional mutation”, which has affected democracy and the rule of law as well, both at the European and (consequently) at the national level[v]. As it is known, the impact has been asymmetric, concerning especially some “peripheral”, financially more vulnerable, Member States: mainly those of southern Europe, where the implementation of the new economic governance has entailed austerity measures and labour flexibilization. The corresponding “competence coup”[vi] affecting national welfare states (even more seriously than the “competence creep” determined by the well-known pro-market case law of the ECJ) has not been compensated by an extension of the powers and resources the Union may use to assure a better protection of social rights. On the contrary, there has been a regression even in those fields where some progresses had been made: at this respect, it is enough to mention the recent involution of the ECJ case law which, on the grounds of the Union citizenship and of the principle of non-discrimination, had previously assured equal conditions for the mobile European citizens (including inactive citizens) in their access to social benefits within the Union[vii]. In constitutional terms, the moving back of social Europe has meant the “amputation” of that kind of solidarity (redistributive solidarity, condition for social justice), whose importance is stressed by the Charter of fundamental rights as well as by national post-war democratic Constitutions of the Member States[viii]. On the other hand, the new conditional solidarity implemented in the eurozone, particularly through the European Stability Mechanism, has deepened tensions and divides between the Member States (creditors  and debtors, hosts and “migrants”… ) and increased the levels of social inequality both within the Union and in the Members States, namely in the ones that have received financial aids. Overall, these constitutional changes have increased the distance between the Union and the European citizens, in a way that is seriously endangering the future of the integration process.

If this discomforting diagnosis is correct, then it is evident that a radical change in the opposite direction is needed: this should be based on the politicisation of social issues at the European level[ix], hence on the restoration of the rule of law and democracy, especially by extending the role of the legislative[x] (and namely the role of the European Parliament in the legislative process, in general and particularly in the social domain), within the framework of a relaunch of the process of constitutionalisation and federalisation of the Union. A complete “reconstruction of the European constitutional order”, recovering real solidarity, is necessary[xi], both for preserving the jeopardised European social model and for restoring the Union’s legitimacy, so as to prevent the risk of its disintegration. As a matter of fact, the destinies of the Union and of that model are clearly intertwined: on one hand, the failure of the European project would definitely make impossible defending and actualizing the latter in a globalized world; on the other hand, if the integration process is not reconciled with solidarity (and democracy, and the rule of law) it will definitely lose its legitimacy and its chance to survive. Can the proclamation of the “Social Pillar” be considered as a first step in the right direction, i.e., in the  direction of the resocialisation of  Europe, which only could be obtained through a more balanced distribution of powers (namely by reinforcing the the role of the Parliaments, especially at the European level, in the legislative process) and through a more adequate distribution of competences and resources (between the Union and the States)? Or, in other words: how solid is this new Pillar? Will it assure a more effective protection of social rights in Europe, allowing the construction of the much-needed supranational core of a European social citizenship, which should, at any rate (taking into account the historical diversity of  social welfare and employment regimes of the Member States), be a “compound citizenship”, whose “federal core” would inevitably coexist with a plurality of national social citizenships?

A critical analysis of the EPSR and of the related acts presented by the Commission leads to recognise evident and major limits from this perspective, and thus to conclude that the step is actually quite small and the Pillar quite fragile. Those documents reflect a certain degree of awareness of the gravity of the present problems and of the consequent necessity to strengthen the social dimension of the integration process. So, the EPSR’s “Preamble” mentions the persisting legacy of the economic crisis and the new social challenges the Union must cope with; and it recalls that the european Parliament, with a resolution of 19 January 2017[xii] “called for a solid European Pillar of Social rights  to reinforce social rights and deliver a positive impact on people’s lives in the short and medium term and enable support for the European construction in 21 st century”. The EPSR’s declared “aim” is to “serve as a guide towards efficient employment and social outcomes when responding to actual and future challenges which are directly aimed at fulfilling people’s essential needs, and towards ensuring better enactment and implementation of social rights” (see again in the Preamble), and concretely “delivering new and more effective rights to citizens” (see in the Communication). In order to reach these general objectives it expresses 20 rights and principles concerning Union citizens and third-country nationals with legal residence, which are structured around three categories: equal opportunities and access to the labour market; fair working conditions; social protection and inclusion. Nevertheless, the proposed solutions seem neither adequate nor effective. Firstly, the juridical nature of those documents is clearly “soft”, thus does not assure any real convergence towards better social standards. Furthermore, the changes they introduce (or just propose) appear very limited, insufficient, almost exclusively “cosmetic”.

The EPSR, by collecting and listing principles and rights, makes more visible the “social acquis” of the European Union, but it does not strengthen this significantly. It does not confer new or more extended competences to the Union in the social domain: the Commission rather highlights that the Pillar “does not entail an extension of the Union’s powers and tasks as conferred by the Treaties”. Nor does it confer more resources to the Union in order to implement its existing limited competences. Therefore, the few concrete initiatives that the Commission has announced in the related documents may be useful to actualise existing acts, but they do not suppose any outstanding progress (qualitative leap) towards a better protection of the concerned social rights. As for the implementation of the Pillar, both its Preamble and the other acts insist on concepts and principles such as “shared political commitment and responsibility”, “subsidiarity” and “respect of diversity”: this is of course fair, but “fair” can turn out to be “foul”, when the problem is the lack of effectiveness of the Union’s action to assure adequate common standards in the protection of social rights, which would be required in order to compensate the weakening of national welfare states.

On the other hand, the emphasis is put on the EPSR’s “specific meaning for the completion of Europe’s Economic and Monetary Union” and on its consideration within the European semester for economic policy coordination, which should supposedly enhance its implementation (through monitoring social advancements, by means of a specific “scoreboard”). But it is legitimate to believe that the effect would be again the subalternity of the weak (inevitably peripheral?) social objectives compared to the strong (central) financial and economic ones: this has been the case so far, as a result of the application of soft law coordination tools and of connecting “the social” with “the economic” in the framework of the Lisbon and Europe 2020 strategies. Moreover, that emphasis itself seems to confirm the persisting “minority status” of social rights in the vision of the Commission, despite its solemn proclamations (or, maybe, its good intentions), and, most importantly, despite the indivisibility principle which is clearly stated in the EU Charter of Fundamental Rights. This impression is confirmed by the attentive examination of the rights and principles expressed by the Pillar: the way some of them are (re)formulated seems to reveal the adhesion to a neoliberal ideology, namely to a concept of “access justice” in opposition to that of “material justice”, which would be more consistent with the principles of solidarity and substantive equality, in accordance with the European constitutional tradition[xiii]. It is also significant, in this sense, that the revised version of the European Social Charter of the Council of Europe (that is, the richest and most advanced normative text of European social constitutionalism) is not mentioned among the EPSR’s sources of inspiration. Finally, the fact that the Pillar claims to be a guide and source of inspiration itself for further initiatives can concretely be interpreted as implying a devaluation of the Charter of Fundamental Rights of the EU: or, in other terms, as a regression, moving back from the constitutional level to a soft-law, almost “adminsitrative” dimension[xiv]. The EPSR’s limits appear even more evident if the solutions it proposes are compared to the ones suggested by other, more “courageous” documents, such as the “Brussels’ Document on the Future of the Protection of Social Rights in Europe” of 2015, drafted by a group of independent experts within the framework of the “Turin Process”, recommending the development of synergies and interaction between EU law and the European Social Charter[xv]; or to other solutions proposed at the academic level[xvi].

In the end, is it reasonable to believe that the EPSR will significantly contribute to overcoming the constitutional imbalance, to “resocialising” Europe and to legitimising and saving the European project? What has been noticed above seems to be sufficient to conclude that the answer should be no or, at least, that the EPSR cannot be the definitive answer to the challenges it should allow the Union to cope with. Best case, it should rather be considered as not much more than a cosmetic palliative care; worst case, as a moving back. Indeed, as said, what is really needed is a new constitutional change, providing the Union with harder juridical basis for the development of the European social citizenship as a compound social citizenship, including a federal core, that would coexist with the structural diversity of national social citizenships. Achieving this fundamental goal would imply a new reform of the Treaties, as it requires a new distribution of competences and resources that should reflect the emergence of a supranational solidarity: this is difficult, and could be considered as “utopic” in the present context, for obvious political reasons. But it is even more necessary than in the past[xvii]. The awareness that present divides and tensions could increase and determine the final disintegration of the Union;  that the Member States, if let alone, will not be able to face the new global challenges and to save the European social model, together with peace and prosperity; the concern for the future and the memory of the past: all this should finally persuade both the States and the European institutions (including the ECJ) to make that big step forward, or at least, to start again from Lisbon, taking the existing constitutional basis seriously. That awareness is not sufficiently reflected by the EPSR, but some first steps in the right direction, both at the political and at the jurisdictional level, could already be made in the short or medium term, and are recommendable as needed demonstrations of goodwill: such as, for instance, the adoption of a “framework directive on adequate minimum income in the European Union, which should lay down common rules and indicators”[xviii]; the “communitarisation” (and “humanisation”) of the European Stability Mechanism, which should drive the ECJ to assure a better protection of social rights and of the principle of solidarity as recognised by the EU Charter of  Fundamental Rights; the development of effective synergies with the system of the European Social Charter[xix].

[i] See COM(2017) 250 final;  C(2017) 2600 final. Both were presented on 26 April 2017, after a public consultation on a preliminary outline, carried out in 2016.

[ii] S. Garben, The Constitutional (Im)balance between ‘the Market’ and the ‘Social’ in the European Union, European Constitutional Law Review, Vol. 13,  No. 1, pp. 23-61, 2017.

[iii] M. Ferrera, Rotta di collisione: Euro contro welfare?, Laterza, Roma-Bari, 2016.

[iv] This was the title of a workshop that took place at the European University Institute, Florence, on 15 and 16 December 2016: see https://www.eui.eu/events/detail?eventid=130113.

[v] A.J. Menéndez, La mutación constitucional de la Unión Europea, Revista Española de Derecho Constitucional, No. 96, 2012, pp. 41-98; C. Kilpatrick, On the Rule of Law and Economic Emergency: The Degradation of Basic Legal Values in Europe’s Bailouts, Oxford Journal of Legal Studies, Vol. 35, No. 2, 2015, pp. 325-353.

[vi] S. Garben, The Constitutional (Im)balance, p. 51.

[vii] See. A. Silveira, Cidadania social na União Europeia – quo vadis? Avanços e recuos entre forças de coesão e fragmentação, in E. Paz Ferreira (ed.), União Europeia. Reforma ou declínio, Nova Vega, Lisboa, 2016, pp. 293-310.

[viii] S. Rodotà, Solidarietà: Un’utopia necessaria, Laterza, Roma Bari, 2014, pp. 105-106.

[ix] See S. Giubboni, Diritti e solidarietà in Europa: I modelli sociali nazionali nello spazio giuridico europeo, Il Mulino, Bologna, 2012 (especially pp.  231-234).

[x] As conclusively argued by S. Garben, The Constitutional (Im)balance.

[xi] S. Rodotà, Solidarietà, pp. 105-106.

[xii] (2016/2095(INI)).

[xiii] See S. Giubboni, Appunti e disappunti sul pilastro europeo dei diritti sociali, Quaderni costituzionali, Vol. 37, No. 4, 2017, pp. 953-962 (p. 958).

[xiv] S. Giubboni, Appunti e disappunti, p. 960.

[xv] Available at https://rm.coe.int/168045ad98.

[xvi] See, among others, N. Contouris, M. Freedland (eds.), Resocialising Europe in a Time of Crisis, Cambridge University Press, Cambridge, 2014.

[xvii] Recalling the title of the above mentioned essay by S. Rodotà.

[xviii] See the European Parliament resolution of 24 October 2017 on minimum income policies as a tool for fighting poverty (2016/2270(INI)), point 21, taking note of an opinion of the European Economic and Social Committee on this directive.

[xix] As recommended by the mentioned Brussel’s Document of 2015. See also the Working document of the European Committee of Social Rights of 2014 on The relationship between the European Union Law and the Social Charter, available at: https://rm.coe.int/16806544ec, and L. Jimena Quesada, Social Rights and Policies in the European Union: New Challenges in a Context of Economic Crisis, Tirant lo Blanch,Valencia, 2016.

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