The Unfulfilled Promise Of Social Rights In Crisis EU

The economic governance structures that have emerged in response to the Eurozone crisis have been widely and rightly critiqued for their anti-social and anti-democratic consequences. We argue in a recent SPERI paper that one pragmatic way in which we might attempt to reform such governance is by asserting the EU’s own rhetorical and constitutional commitment to fundamental rights. In particular, this would mean pushing for an assessment of social rights in the European semester process that adheres to the standards of the Council of Europe’s European Committee for Social Rights.

The structures of economic governance that have emerged since around 2010 in response to the economic and monetary crisis have rightly come in for significant criticism from academics, activists and the media in recent years.  Labels such as ‘executive federalism’, ‘neo-liberal authoritarianism’ and ‘authoritarian constitutionalism’ have been deployed to characterise contemporary socio-economic governance in the EU.  They capture the way in which executive power has been strengthened to impose a counter-productive neo-liberal austerity. The threat to what remains of the European social model – in the shape of national social and welfare settlements – and a European democracy – in the form of parliamentary politics and inclusive governance – is stark from the perspective of such critics.  We broadly agree with these now well-rehearsed critiques.

The central question motivating our recent paper is: how might we realistically begin to reverse this direction of travel and revive the fortunes of a social Europe?  We argue that responses to this question have mainly taken two forms: the first unrealistically ambitious and the second not ambitious enough to succeed. The first kind of response argues for a radical break with the prevailing neo-liberal constitutional settlement: either the uploading of a social democratic constitution to EU level or the undoing of monetary union and a return of democratic autonomy at national level. The problem with such radical proposals is that integration and disintegration blockages – a consequence of what Fritz Scharpf identified as the joint decision trap – are likely to militate against them in the short to medium term.

The second kind of response is more pragmatic: it looks to transform the institution of the European semester by making it more inclusive of social actors and more deliberative. Some have proposed, for instance, a greater role for social and employment ministers alongside their economics/finance counterparts. Some have proposed the further development of the so-called ‘open method of co-ordination’ – the soft governance mechanisms that have long been used in employment and social policy in the EU. The problem with such proposals is that they fail to address the fundamental constitutional asymmetry between the economic and the social. In short, social goals will continue to be subordinated to economic ones as long as the former are governed by soft co-ordination mechanisms and the latter by hard law (a law which has in fact hardened recently).

Offering a middle way between these extremes, our paper suggests that a constitutional basis for a rebalancing towards more social goals already exists in the EU, in the form of the EU’s stated commitment to fundamental rights, including social rights. The EU has a Charter of Fundamental Rights (EUCFR) that includes social rights and the European Commission has said that it wishes to be an ‘exemplary actor’ when it comes to rights. While the EU itself (including the case law of the European Court of Justice) has not established clear or substantive standards on social rights, another European institution has done so: namely, the European Committee of Social Rights (ECSR), which operates under the auspices of the Council of Europe and provides oversight of the implementation of the European Social Charter (ESC) (established in 1961). The ESC is not alien to the EU: it is referred to in the EU treaties, it has been drawn upon by the ECJ, and it has inspired many of the social rights in the EUCFR.

In the context of its recent economic governance the EU has been far from ‘exemplary’ on rights and certainly not on social rights. Not only have these not been systematically considered in the context of this governance (as they arguably should have been), such governance has in fact eroded social rights in national contexts. In our paper we suggest that the EU can and should be held to its own commitments by incorporating the standards of the ECSR into all aspects of its governance and, in particular, its European semester.

The ECSR has developed standards on social rights in two ways: minimum standards and what it calls progressive realisation. Within the framework of our proposal EU socio-economic policy recommendations that breach minimum standards would not be permissible (various examples of such standards can be found in a recent report by the president of the ECSR on ‘anti-crisis’ legislation). Those standards would disallow, for instance, any recommendation to force the decentralisation of collective bargaining or to create a contract with an excessive period of no employment protection. Notably, these are both policies that were adopted in Spain following EU recommendations; both have been critiqued in recent ECSR reports.

In accordance with the principle of progressive realisation, the ECSR has set out more ambitious social rights standards towards which states should be working, contained in a large body of case law. We argue that any EU policy recommendations that run counter to these more substantive standards would need to be explicitly justified as proportionate and in pursuit of a legitimate aim. For illustrative purposes, two such standards are: a right to collective bargaining that ensures bargaining structures at the national, regional, and sectoral level and a right to compensation in the event of unfair employment practices that is sufficiently high to effectively combat such practices. The existence of such standards would, according to our proposal, at the very least compel a publicised debate concerning the proportionality of the EU’s apparent commitment to the decentralisation of collective bargaining and ever more flexible and deregulated labour markets.

While we frame our proposal as both achievable and effective (where others may be less so), we are clear that even this proposal would require for its realisation a significant political shift, and that such a proposal is not, on its own, likely to be enough. Nevertheless, given the rhetorical importance of rights to the EU and the potential for a rights discourse to trigger debate and change, we think there is much unfulfilled promise in strategies aimed at the promotion of social rights in crisis EU.