By Alessandra Silveira (Editor) 

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An omen for 2024: the deepening of the European Social Union (in memory of Jacques Delors)

According to the Eurobarometer published in December 2023[1] – six months before the 2024 European Elections –, more than one third of EU citizens see the fight against poverty and social exclusion (36%) and public health (34%) as the main topics the European Parliament (EP) should prioritise. Socio-economic hardships still affect Europeans’ everyday lives: 73% think that their standard of living will decrease over the next year, of which 47% say that they have already witnessed a reduction. Over a third of Europeans (37%) have difficulties paying bills sometimes or most of the time.

This diagnosis is not exactly new. During the sovereign debt crisis, the German sociologist Ulrich Beck suggested the following: if Europeans want to perceive the experience of integration as something that actually makes sense to them, the way forward is more social security through more Europe.[2] And why is that? Because the social dimension of European integration is at the heart of the legitimate concerns that have been expressed by European citizens.

In this vein, one of the topics addressed at the XXX Congress of the Federátion Internationale de Droit Européen (FIDE) 2023 was precisely “European Social Union”. What was the motto of the questionnaire proposed by FIDE to its members, including the Portuguese Association of European Law (APDE),[3] regarding social Europe? Basically, the time has come for us to focus our efforts on the need for a Social Union, giving it due prominence both in public discourse and in European policymaking.

Therefore, with this topic, FIDE intended to conceptualise the idea of a Social Union (what does the Social Union consist of?), as a way of bringing the European Union (EU) closer to its citizens. The aim of the questionnaires answered by the national rapporteurs was to assess the current state of the art and, possibly, the strengthening of a real and meaningful social dimension of the EU. That is why the national rapporteurs answered questions related to the so-called “European social policy” (i.e. the social legislation of the Union), or to the solidarity rights contained in the Charter of Fundamental Rights of the European Union (CFREU), or even the principle of equality and non-discrimination – but not only, because a very broad understanding of the Social Union has been adopted, which we will come back to later.[4]

In any case, there is no Social Union without coordination between the Member States and the European institutions. The social policy of the Union (as provided for in Articles 151 et seq. TFEU) is a shared competence between the Union and the Member States [in accordance with Article 4/2(b) TFEU]. And what is the Union’s responsibility in this area? It is responsible for supporting and complementing Member States’ action on social safety and security, working conditions, equal opportunities, combating social exclusion, for example.

However, this is a realm in which the Member States have always had great difficulty in sharing with the Union since it is in the field of social policy that elections are won and lost. Now, national political parties need to win elections – and they want to have room for maneuver to do so. Yet there are movements that indicate changes. Let us consider a concrete example.

In September 2023, the Portuguese Government sent a letter to the European Commission with its priorities for 2024, in which it advocated for a “European Affordable Housing Initiative”, given the current economic context marked by high inflation, which particularly affects young people. In view of this, the European Commission should be attentive to the problem of housing shortages and high costs, in line with the objectives of protecting the urban environment and social cohesion, areas in which the EU has a responsibility to act. As this is a problem that cuts across the whole Union, the Portuguese Government has called for instruments capable of ensuring access to decent, affordable housing for all. Following this, in the debate in the EP on the European Social Agenda in October 2023, Nicolas Schmidt (European Commissioner for Employment and Social Affairs) clarified that while housing policies are primarily the responsibility of the Member States, there are European instruments to support them. As the housing crisis has taken on a European dimension, coordinated action is indeed needed, and Recovery and Resilience Plan (RRP) resources, for example, can be used to provide access to housing. Moreover, in Portugal, 32,000 public housing units are under contract with resources from the RRP – which must be built by the end of 2026, as this was the commitment made with the European Commission.[5]

So, given this change in the atmosphere, what did the FIDE questionnaire aim to identify from the national reports? It wanted to identify which social values should underpin European integration, and to what extent these social values relate to the rule of law – which Member States must respect. In the context of the weakening of European democracies, social rights and social justice, together with the question of the perception of these rights, are of the utmost importance. However, the link between the rule of law and the protection of social rights has not received the attention it deserves. Therefore, on the path to a Union based on the values of Article 2 TEU (human dignity, freedom, equality, democracy, the rule of law, human rights, minority rights), it is important to promote a stronger connection between EU citizens, as well as solidarity across national borders, bringing the EU closer to its citizens and to each other.

But then, how can this be achieved? What measures have been taken in the different Member States to provide education on EU citizenship and the values set out in the Treaties in mainstream education (primary, secondary, and higher education)? Are these subjects covered in the curriculum and how? Are there any rules or guidelines in this regard? Are there any examples of good practice that can be provided? To what extent is the development of social rights consistent with the rule of law and democracy? (e.g. in terms of equality between men and women; or on combating racial discrimination and hate speech; or on equal access to social services, social benefits, and housing, etc.). Neglect of social rights can undermine the values of diversity, plurality and equality that define a democratic state based on the rule of law. Portugal, for example, has been constantly urged by the United Nations, the Council of Europe and the EU to act more decisively against racism and violence against women.

The aim of the FIDE questionnaire was to assess whether the EU is perceived as a Social Union in the different Member States, particularly in academic, judicial and political discourse. In other words, are the common European values (especially equality and solidarity in Article 2 TEU) considered to be the constitutional basis of a European Social Union?

This has concrete implications for the ecological transition we are experiencing, for example. How do policies to combat climate change take social justice into account in the different Member States? And what are the methods (the instruments, the lawsuits) through which the link between climate change and social justice is achieved? The RRP aims to transform environmental and digital challenges into opportunities in a wide variety of fields – and to make the transition fair and inclusive for all. The ecological transition cannot be achieved effectively without social justice, and social justice means that the most vulnerable social groups should not bear the burden of that transition. How is this being implemented in the Member States in order to combat ecological exclusion?

What was the result, what did FIDE find out from the national reports? It concluded that there is still a gap between the EU’s social developments and the perception of the EU as a Social Union in the individual Member States. All the national reports recognise that social issues are profoundly determined by EU law in several areas – in particular, in the field of labour law: numerous directives and European jurisprudence abound. And this importance of the EU’s role in social issues is expected to be long-lasting, especially in the face of the ongoing green and digital transitions that are intended to be fair.

However, in stark contrast, few national reports indicate that the EU is seen as an area of social integration, but rather as economic integration. And not many national reports insist on the need for further development of EU labour legislation. Faced with this contrast, FIDE’s general report asks: how can a European Social Union serve the purpose of bringing the EU closer to its citizens? How can the EU appeal more to citizens than to businesses? More towards most of its citizens rather than to an elite capable of reaping the rewards of free trade, the internal market and, in particular, the free movement of capital?

And so the general report starts from the hypothesis that the traditional paths to a Social Union – that is, social legislation developed on the basis of the free movement of workers, as well as the emergence of fundamental social rights – however important they may have been at a given historical moment, have had less impact on the perception of European social relevance than the developments taking place in other areas – such as the Economic and Monetary Union (EMU),  for example, which has not favoured the portrayal of the EU as a Social Union, because the regressive social policies and austerity plans imposed on some Member States have not helped citizens to see the EU as a social integration.

It is possible that the European measures adopted during the COVID-19 pandemic to alleviate the social impact of national fragilities may help to gradually change this perception. For example, in the early days of the pandemic, a wave of mass unemployment similar to that experienced in the 1930s was predicted. The EU challenged this forecast with the adoption of the SURE instrument – the first European initiative to reduce working hours, which has saved 40 million jobs.

But then, if the traditional paths to a Social Union seem to have no impact on the Member States, what is the suggestion made by FIDE’s general report? That of the “socialisation” of EU policies which, although not formally part of EU social policy, have a considerable impact on social issues. The general report explores the hypothesis of a “socialisation” of some of the EU’s policies, whose objectives are not primarily the protection of social rights, but which could contribute to a Social Union – that is, it suggests a kind of exploration of new territories for a Social Union.

This would be the case, for example, with the defence of the rule of law, an area that so far has not been very focused on the protection of social rights. But there is no doubt that the protection of European democracies, through their material dimension linked to social justice, deserves more attention from the EU. Another example would be the green transition, as the European Commission’s own Communication on the Green Deal (2019) foresees measures to ensure a just transition that makes it socially acceptable.

Strangely, the digital transition is not explored in FIDE’s general report for this purpose – but it should be, because the same requirement for a just transition is imposed here.[6] In any case, to what extent do we consider that the rule of law, the ecological transition, as well as the digital transition would be new areas to be explored for the purposes of a Social Union?

The basic idea of the term “rule of law” is that of subjecting power to law. The value of “rule of law” is based on the defence of citizens against any power: be it the power of the State, or other political constellations such as the EU, or private organisational complexes endowed with power – many of them with transversal origins, without any element of connection with the traditional power of the State, be it in the market, the Internet, sport, etc.  Sometimes we limit ourselves to a procedural reading of the rule of law – because it is indeed procedure-oriented, the idea being that citizens can follow the different stages of the decision-making process, in order to challenge decisions by public authorities that are unfavourable to them. But beyond this procedural dimension, it is important to pay attention to the reasons for the existence of the rule of law and its substantive content. And this substantiality of the rule of law points to social justice contents.

Furthermore, the rule of law has a quality – that is, it is a democratic rule of law. Democracy qualifies the rule of law – which means that the exercise of power is based on popular participation. But this participation is not limited to electoral moments, because it implies many other things, namely the satisfaction of basic levels of social benefits and the correction of inequalities. And this has implications with regard to the digital transition, not only in terms of combating the digital divide, or the new forms of discrimination perpetrated in the digital ecosystem – which are otherwise tremendous, because humans flag their victims when discrimination occurs, and equivalent signalling does not occur with discrimination perpetrated by artificial intelligence systems, for example, which is much more subtle and difficult to detect.

However, what is important to highlight is the role of EU law in rebalancing powers in the digital ecosystem. There is a clear imbalance of power on the Internet in favour of service providers, which calls for a strengthening of the position of users in their relationship with providers. And this is an exercise in social justice that only the EU can promote.

Moreover, one of the questions posed in the FIDE questionnaire to the national rapporteurs was about how the courts dealt with the issue of social rights under the CFREU in actions between individuals (so-called “horizontal actions”). Why is this a sensitive issue? Because in Article 51(1) CFREU, only entities exercising public authority are listed as recipients of their obligations. Does this preclude the applicability of the Charter to relations between private individuals, whether natural or legal persons? Do the fundamental rights enshrined in the CFREU enjoy horizontal effectiveness? The issue is relevant because the horizontal effectiveness of fundamental rights is not accepted in most of the constitutions of the EU Member States, even though, through the infra-constitutional regulation of certain private relationships, fundamental rights will acquire horizontal effect in some areas.[7]

The CJEU has rightly allowed some openness in the interpretation of this issue, most notably in the Bauer judgment (C-569/16), with the CJEU stating that Article 51 CFREU does not address the question of whether individuals may, where appropriate, be directly obliged to comply with certain provisions of the Charter – and therefore cannot be interpreted as systematically excluding that possibility. The fact that certain provisions of original EU law concern primarily the Member States is not such as to preclude their application in relations between individuals.[8]

There is, however, one idea that underlies the FIDE questionnaire – and which perhaps conditioned the responses – with which we disagree: the idea that the pursuit of the internal market has left social cohesion behind. This was not the case, because the dimensions of European sociality overlap with the exercise of economic freedoms. It is for no other reason that the first regulations adopted at the beginning of the integration process (i.e. Regulations 3 of 1958 and Regulation 4 of 1958) are the regulations that coordinate the social security systems of the Member States. In other words, they were the first regulations adopted, immediately after the regulations on institutional matters, under the then Treaty of Rome of 1957. European citizenship itself begins as a market citizenship (aimed at protecting individuals moving within the EU by placing them on an equal footing with nationals of the host Member State). And this market citizenship is becoming a social citizenship (for which the dimensions of social solidarity are important, because when they circulate, citizens also look for and lose their jobs, they can fall ill or suffer accidents, they can die because that is how the story always ends…). And all this in order to achieve a republican citizenship (based on the exercise of fundamental rights by all citizens – not just those who circulate – and their active civic involvement).

Even the protection of fundamental rights in the EU has been shaped by the exercise of the freedoms on which the internal market is based, freedoms of movement that have always been understood as fundamental rights in the EU – which is now reflected in Article 45 of the CFREU. Moreover, the very restriction of fundamental rights in the CFREU (Article 52) reproduces the CJEU’s jurisprudence on the restriction of economic freedoms, guided by the criterion of proportionality.

It is for no other reason that Member States have been reluctant, as much as they could, to recognise a catalogue of EU fundamental rights – let us recall that the CFREU was drawn up in 2000 and only became legally binding in December 2009, with the entry into force of the Treaty of Lisbon. And why were the Member States reluctant? Because, since the Treaty of Lisbon, individuals who moved and those who did not have to move have all been formally protected by the same fundamental rights in a Union based on the rule of law – and they have been comparing their living conditions with those of their neighbour on the other side of the border (in other words, internal borders over which no control is exercised,  they are mere geographical landmarks).

To sum up: a supposed divergence between the market and social protection, between the market and citizenship, between the market and fundamental rights, is very questionable for the law of European integration. In normative terms, the concept of the “social market economy” (today enshrined in Article 3 TEU) recovers precisely the German ordoliberal policies of the post-war period, according to which economic efficiency had to create both wealth and promote social cohesion; an economic solution that would disrupt social cohesion would not be efficient; an economic order that did not guarantee the dignity of the individual would not be efficient.

And when Jacques Delors introduced the term “European social model” into the lexicon of integration, it became necessary to institute social policies in the EU – and the Single Act paved the way for this from 1987 onwards. It is worth remembering this legacy as a cultural antidote to barbarism – especially in 2024, which will be “the year of all elections”.

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[1] Cf. EP Autumn 2023 Survey: https://europa.eu/eurobarometer/surveys/detail/3152 .

[2] Cf. Ulrich Beck, A Europa alemã – de Maquiavel a «Merkievel»: estratégias de poder na crise do euro [German Europe – from Machiavelli to Merkievel: strategies of power in the euro crisis] (Lisbon: Edições 70, 2013).

[3] We had the pleasure of co-organising and taking part in the Webinar on the Conclusions of the XXX FIDE Congress (Topic III – European Social Union), an APDE initiative to which the School of Law of the University of Minho joined, on 24 October 2023, in dialogue with Maria do Rosário Palma Ramalho (Portuguese national rapporteur), moderated by Rita Leandro Vasconcelos (Vice-President of APDE). See https://www.apde.org.pt/eventos-e-atividades/Save-the-date-24-de-outubro-as-1700-Webinar-sobre-as-Conclusoes-do-XXX-Congresso-FIDE-Topico-III/216/.

[4] Cf. Alexander Kornezov (ed.), The XXX FIDE Congress, 2023 Congress Publications, vol. 3: European Social Union (Sofia: FIDE, 2023).

[5] Cf. PORTUGAL.GOV.PT: https://www.portugal.gov.pt/pt/gc23/comunicacao/noticia?i=o-prr-nao-sao-32-mil-fogos-em-abstrato-sao-32-mil-familias-que-vao-ter-oportunidade-de-ter-o-seu-lar .

[6] See European Parliament resolution of 17 December 2020 on a strong social Europe for Just Transitions [2020/2084(INI)], https://www.europarl.europa.eu/doceo/document/TA-9-2020-0371_EN.html .

[7] Cf. Leonard Besselink, General Report, Julia Laffranque (ed.), Reports of the XXV FIDE Congress – Tallinn 2012, vol. 1 (Tallinn: Tartu University Press, 2012), 91-92.

[8] See judgment Bauer, 6 November 2018, Joined Cases C-569/16 and C-570/16, ECLI:EU:C:2018:871, recitals 87 and 88.

Picture credits: Photo by Son Tung Tran on Pexels.com.