Retooling Social Europe Via Charters Of Rights

Maria Bafaloukou

The European Union’s fundamental goal, projected in the Lisbon Treaty, was to create a “social market economy” with a clear commitment to full employment, social protection, and effective anti-poverty policy. Although principles such as non-discrimination, tolerance, justice, solidarity and equality are referred to in Article 1a (Treaty on European Union), the EU’s social status has been seriously undervalued during times of crisis. Hence, EU leaders are enjoined to reverse this outcome and deal with the critique that the Union lacks the proper legal instruments to promote a strong social agenda.

Recently, the initiative of the President of the European Commission to enhance the social dimension of the Union led to the so-called European Pillar of Social Rights (EPSR), which has been jointly signed by the European Parliament, the Council and the Commission at a recent “Social Summit”. This démarche illustrates that the European institutions still acknowledge the need for Europe to be properly equipped with a vigorous and tangible social dimension. Despite criticism that the EPSR is a legally non-binding (toothless) document, it does offer a unique opportunity to promote strong partnerships in the European socio-economic governance process.

The European Social Charter as an essential tool

“Social Europe” is in need of reorientation via tangible actions that will help reduce existing shortcomings. EU accession to the European Social Charter (ESC) would be an initiative with a plethora of advantages, most notably in harnessing the dynamic of social reform in a period of economic turbulence. The ESC was adopted within the framework of the Council of Europe in 1961. It was intended to be the counterpart, in the field of economic and social rights, to the 1950 European Convention on Human Rights (ECHR), the major achievement of the Council of Europe in the field of human rights. However, the ESC has been largely ignored more recently when it comes to the protection of fundamental rights within the European Union. The European Court of Justice has referred to the ESC on several cases. On the other hand, because of the “à la carte” system of the ESC, the ECJ considers some of the fundamental rights as principles of European Law, in accordance with Article 151 TFEU.

Discussing possible “synergy” between the European Charter of Fundamental Rights (ECFR) and the European Social Charter is meaningful, as it comes when the ESC has already matured significantly, especially, in comparison with the ECFR that has not greatly evolved despite the added legitimacy (binding in EU law) gained from the Lisbon Treaty. The fact that the social rights are mentioned more often as principles rather than rights (Title IV of the Charter ‘Solidarity’) has created a controversial issue as far as the applicability of the rights is concerned. Furthermore, the unwillingness of the drafters of the ECFR to comprehensively align the status of the European Social Charter with that of the European Convention on Human Rights poses another serious limitation. In that sense, why do not the EU and the Council of Europe combine their potential efforts to address the legitimacy weakness of “Social Europe”?

In the course of the last few years, the CoE has launched the Turin Process (of the ESC) and made crucial steps in the protection of social rights. The Turin process aims at strengthening the treaty system of the European Social Charter in terms of its relationship with European law. The direction of those actions is designed to align Member States and their citizens more closely to the values of the European Social Charter. It offers a significant step towards the holistic process of uniting Europe, while at the same time operating within the framework of acting as Europe’s social constitution. Finally, the Council-based European Committee of Social Rights has proven rather active in pursuing several social rights restrictions due to austerity measures such as in the case of Greece.

The power of accession

The EU could accede to the European Social Charter on the basis of Article 216 (1) TFEU. The idea of accession was also mentioned in 1984, when the European Parliament adopted the Draft Treaty Establishing the European Union, widely referred to as the “Spinelli Treaty”. Chapter 1 (Article 4. 2) refers to “economic social and cultural rights derived from the Constitutions of the Member States and from the European Social Charter”. Initiatives taken during the political run-up to embracing accession may play positively within European public opinion, as these would undoubtedly indicate that the EU is equally committed to the establishment of the internal market, and the creation of an area of freedom, security and justice, including social justice, where egalitarianism prevails in terms of civil, political, economic and social rights.

Window of opportunity

The incomplete project of constitutionalisation of social rights should come to a final conclusion. The European commitment to social rights is essentially rhetorical in nature, being through the years the Achilles heel of “Social Europe”. On that basis, the political and economic conditions may be propitious to reversing the downturn of the social rights. Given that the ultra-critical UK is no longer an “antagonist” of Social Europe owing to the recent Brexit vote, concrete measures via the ESPR could erode the economic and social divergences between Member States that have put Europe’s political cohesion at risk. Finally, this and the threat posed by the rise of extreme-right parties should motivate Europe to rethink its geopolitical role – and, indeed, its very nature.