Despite the European Pillar of Social Rights, social protection remains patchy for atypical and self-employed workers.
The La Hulpe Declaration, adopted in mid-April, on the future of the 2017 European Pillar of Social Rights reinforces the EPSR as a social compass for the European Union. In recent years, the debate on its 12th principle, social protection, has gained momentum, especially vis-à-vis atypical workers and the self-employed.
To what extent the EU has delivered on its promise is however questionable. The emphasis has been on providing support for member states through grants and loans, which while welcome leaves the impact on social-security systems difficult to assess. In the event of unemployment, coverage gaps appear to persist for atypical workers and the self-employed.
Minimum standards
Principle 12 of the EPSR has been developed by a 2019 Council of the EU recommendation on access to social protection. This aims to ensure minimum standards of social protection for workers and the self-employed, taking into account the (limited) competences of the EU in this area. It covers traditional labour-related insurance schemes, such as for unemployment.
The recommendation seeks formal, effective, adequate and transparent access to social protection for all workers—whether in standard or non-standard employment—and all self-employed. For the latter, protection may be provided compulsorily, ‘where appropriate’, but should at least be available on a voluntary basis.
The recommendation remains relatively general: unlike similar International Labour Organization instruments, it does not mention detailed standards. On unemployment protection, more information can be found in the next pillar principle, number 13, which stresses the need for unemployment protection of a reasonable duration, in line with contributions and national eligibility rules.
Principle 13 covers all unemployed persons, including those with short employment records and those previously self-employed. In some countries temporary workers and/or the self-employed are excluded from unemployment-insurance coverage or face difficulties in meeting the thresholds set by legislation. Principle 13 covers not only contributory but also non-contributory unemployment benefits, as well as unemployment assistance.
Non-binding instruments
The pillar and the recommendation are however non-binding. A framework was developed in 2020, and subsequently updated, to monitor implementation of the recommendation. EU member states were required to draft national action plans, which were reviewed in this light. The La Hulpe Declaration identified strengthening monitoring of the recommendation as a priority.
Several coverage gaps however persist. At least 5.6 million atypical workers and 15.3 million self-employed in the EU do not have access to unemployment benefits. Member states have identified two key challenges in addressing these shortfalls: the need to maintain the flexibility of the labour market and the complexity of extending coverage among the self-employed (particularly vis-à-vis unemployment and incapacity for work) and specific groups such as platform workers.
Amid the pandemic, the EU developed financial instruments to assist member states, including the Temporary Support to Mitigate Unemployment Risks in an Emergency (SURE). SURE played a pivotal role in supporting job-retention programmes, with relatively little conditionality. It remained however up to member states to determine the scope and level of protection—no link was made to principles 12 and 13 of the EPSR or the council recommendation, which could have guided domestic policy-makers. The La Hulpe Declaration highlights the valuable lessons learnt from SURE, but no steps were taken towards a permanent crisis framework with the recommendation as context.
Also in 2020, the EU established the Recovery and Resilience Facility (RRF), which provides grants and loans to member states to make their economies more resilient and sustainable. Although the instruments establishing the RRF referred to the EPSR, unlike with the green and digital transitions no fixed percentage of the funds made available was to be spent on realisation of pillar rights.
The financial support provided to member states under the facility, itself loan-financed, demonstrated a shift in EU policy-making, diverging from previous crises. The role of the two pillar principles and the recommendation has however been limited. Analysis of the national plans setting out envisaged reforms shows that only a few countries—Cyprus, Lithuania, Malta, Slovenia and Spain—are using the funds to strengthen unemployment coverage.
European Semester
Monitoring of the RRF occurs through the European Semester, which adds another layer to the complex EU governance process. Before the adoption of the EPSR, the semester was heavily criticised for the subordination of social to budgetary and economic goals.
Analysis of the Country Specific Recommendations (CSRs), stemming from the semester, of recent years shows that more attention is paid to the need to provide adequate unemployment coverage, including for atypical workers and the self-employed. Hungary, for instance, has been repeatedly urged to strengthen unemployment protection. Slovakia has been told that its rules on eligibility conditions and duration of unemployment benefits have been too strict. Lack of unemployment coverage for the self-employed has been represented as a long-term risk for the sustainability of the Dutch social security-scheme. Even before the adoption of the EPSR, several countries were asked to reform their unemployment protection to increase labour-market participation.
The 2020 CSRs stand out: all refer to unemployment. For some, this was only a brief reference to its possible increase or to measures taken to limit it amid the pandemic. More countries than in previous years were however urged, in a recommendation or in one of the preceding recitals, to strengthen unemployment protection. The Covid-19 crisis clearly served as an impetus for the EU to prioritise much-needed protection from (temporary) unemployment. This increased attention seems though to have been short-lived, with fewer references to the need for adequate unemployment protection in the following years.
Flesh on the bones
Against this backdrop, the La Hulpe Declaration reaffirms the importance of the EPSR, including the need to strengthen social protection for all. Yet the role of its principles 12 and 13 and the recommendation seems limited, as SURE and the RRF evidence. There is thus fuzziness and ambiguity as to whether and to what extent the different EU instruments in this arena are linked and interact. That makes it difficult to map the impact of the EU on member states’ social-security systems.
The EU has taken several steps in recent years to strengthen its social dimension, trying to carve out its own role alongside that of the member states. It is time to give the initiatives taken a more solid foundation and put more flesh on the bones.
More information on implementation of the pillar principles 12 and 13 and the council recommendation can be found in the author’s paper ‘The principle of adequate social protection in the European Pillar of Social Rights: assessing the instruments used to realise its potential’ to appear in European Journal of Social Security 26(2)
Eleni De Becker is assistant professor of constitutional and European social-security law at the Free University Brussels and guest professor of European social-security Law at KU Leuven, interested in social rights, atypical work forms and access to social protection, and EU social-security law.