PhD Proposal

• Art. 3(1) TEU: “The Union’s aim is to promote (…), its values and the well-being of its peoples.”

  Art. 3(2) TEU: “The Union shall establish an internal market. It shall work for (…) a highly competitive social market economy, aiming at full employment and social progress (…). It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child. It shall promote economic, social and territorial cohesion, and solidarity among MS.”

  
  

• Art. 3(5) TEU: “In its relation with the wider world, the Union (…) shall contribute to the eradication of poverty and protection of human rights (…) as well as the strict observance and the development of international law.”

• Art. 2(3) TFEU: The MS shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Unio shall have competence to provide.”

  
  

• Art. 4(2) TFEU: “Shared competence between the Union and the MS applies in the following principal areas:

  • (b) social policy, for the aspects defined in the Treaty

  • (c) economic, social and territorial cohesion”

• Art. 5(2) TFEU: “The Union shall take measures to ensure coordination of the employment policies of the MS, in particular by defining guidelines for these policies.”

• Art. 5(3) TFEU: “The Union may take initiatives to ensure coordination of MS’ social policies.”

  Art. 9 TFEU: “In defining and implementing its policies and activities, the Union shall take into acount requirements linked tothe promotion of high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.”

• Art. 21(3) TFEU [freedom of movement]: “For the same purposes as those refered to in paragraph 1 and if the Traties have not provided the necessary powers, the Council, may adopt measures concerning social security or social protection.”

EU: there are no autonomous and uniform definitions of social security, social assistance and social protection under EU law; responsibility of each EU MS to materialise their detailed content

Umbrella term; relates to ensuring that individuals have support when they cannot earn an income or face addtional needs (e.g. parental responsibilities, sickness, disability or old age)

• e.g. Council Recommendation on European Child Guarantee, Council recommendation on minimum income, European Platform on Cobating Homelessness

• ‘social protection scheme’ means a distinct framework of rules to provide benefits to entitled beneficiaries which specifies the personal scope of the programme, entitlement conditions, the type of benefit, benefit amounts, benefit duration and other benefit characteristics, as well as the financing (contributions, general taxation, other sources), governance and administration of the programme) [unemployment; sickness and healthcare; maternity and equivalent paternity benefits; old-age benefits; benefits for accidents at work]

ESC:

• social assistance: entitlement of persons without adequate resources to adequate assitance, incl. sickness, advice and personal help to prevent, remove or alleviate personal or family want.

• Arts. 15, 16, 17, 19 and 23 refer to the protection of specific vulnerable groups of people. States have the obliation to draw up strategic objectives on the basis of relevant indicators and criteria, as well as to make choices regarded public spending.

• Will be expanded upon but for example, as mentioned in example:

• formal inclusion of the ESC in the EPSR and use of EPSR in the legislative impact assessment of the Commission

Central question: “Can the (Revised) European Social Charter be utilised to advance the protection of social right in EU law through futher harmonisation between the two systems, and if so, how?”

1. What is the current significane of the (Rev)ESC and its Committee’s decisions and conclusions on the protection of social rights within EU Member States?

2. How are social rights currently protected by the EU?

3. What is the relationship between EU law and the (Rev) ESC and its Committee? Can remaining divergences in the standards between the two systems be identified?

4. How could further harmonisation of social rights standards between EU law and the (Rev)ESC be achieved? Is EU accession to the RevESC desirable and possible in light of the EU’s competences?

• understood as the assimilation of the scope and interpretation of corresponding rights without necessitating unification

• used to inquire whether the Charter’s provisions and the ECSR’s decisions and conclusions are taken into account within the MS’s systems

-          Indeed, many of the social rights concerned are primarily a Member State competence. Nonetheless, the EU through various routes including the Charter of Fundamental, the EPSR and the European Semester taken on a more active role in the governance of social rights.  

-          For example, when proclaiming the Action Plan the EU stated that it viewed the implementation as a joint effort between the EU and the MS

-          Even where the EU cannot legislate, we see that there is involvement for example through financial support via several Eu funds, fostering social dialogue, providing guidance and coordination of national and economic and social policies via the European Semester

o   E.g. Open Method of Communication (inter-governmental policy-making); benchmarks, guidelines, common objectives agreed upon between States (adopted by Council) and surveillance by the Commission

-          Ongoing

-          Of course also to see in how far Roxana Mînzatu (portfolio Executive Vice-President for People, Skills and Preparedness) the new Commissioner on Employment and Social Affairs (2019 onwards: Nicolas Schmitt, profiled called Jobs and Social Rights) will take over from his predecessor

-          From the mission statement it is clear that the goal is furthermore to strengthen the EPSR including a new Action Plan in 2025, to work on affordable housing, to advance the headline targets incl. prevention of poverty and to create an EU Anti-Poverty Strategy.

Thus, there is a clear continuing interest

-          The situation is reversed to the situation of ECHR and EU law where EU law is thought to provide a higher level of protection; for social rights, the EU seems to provide the lower levels of protection

-          We see that the EU sees itself value in aligning the standards between EU MS, thus having called at multiple instances for MS to all accede to the Revised ESC and to ratify all provisions.

-          Problematic arises in particular in these instances where the divergence of standards cannot simply be rectified in the sense that EU law provides the lower benchmark and MS have to adopt higher standards in light of their international obligations but where adopting such higher standards may in itself be problematic because it would lead to a potential violation of EU law

-          There is of course also potential for the EU to go further, but needs to be seen in how far this is currently the case and whether it makes sense

-          Political imbalance between EU and ESC

-          Aware of critical differences - both in terms of practical matters (lack of legal basis for accession) and fundamental differences as the very different competences bestowed upon the Union in relation to SERs compared to CPRs

-          Not an act of “copy-pasting”

-          But lessons from the ECHR can be used also to distinguish it from the situation concerning the ESC (e.g. Opinion 2/13)

-          Originally not a concern of the Union, but economic considerations

-          However, the EU has over the years transformed itself to first human rights as general principles and later the CFREU and the considerations of standards developed by the ECHR under Art. 52 CFREU to what can arguably be regarded as also a human rights organisation

• pathway already started in 1989 with the Community Charter of the Fundamental Social Rights of Workers, which is a political declaration signed in 1989 by (then) all the EU Member States except the UK,

-          Of course, a distinction can be drawn between CPR and ESR in this regard to a certain extent but the EU itself is increasingly active in the area, thus it does not seem in itself an insuperable obstacle

-          We see this especially in relation to the initiatives lodged under the EPSR

-          Provide possible solutions to strengthen social rights protection in EU law

-          Could provide further protection in two ways: ensure that MS comply with their obligations under the ESC but also ensure that the EU itself ensures sufficient protection of social rights in its legislative proposals and the balancing of social rights vs. fundamental freedoms

-          We still see that the fact that EU accession to the ECHR did not work at first sight has not discouraged calls for accession to the ESC

-          EU accession to the ECHR is still impeding, we will see what the CJEU will rule on the new DAA but it would one way or another not necessarily be indicative for EU accession to the ESC

-          Could provide worthy pointers for the process of EU accession to the ESC but must also be kept in mind that accession would be very different (à Opinion 2/13)

-          To be seen what is the stance at current

-          However argument to be made that especially in such a political climate where right-wing governments are likely to provide less protection for the most vulnerable groups in society, additional advantage of having the EU as an additional actor involved in the protection of social rights

Purely declaratory nature of the ECSR’s decisions and conclusions

-          Because it is the option that has been is suggested by both the institutions (EP and CoE bodies), so therefore particular attention is paid on this option

-          Other options may however still be desirable either because they may be a valuable step in-between as they are easier to facilitate or because EU accession may simply be infeasible/not desirable

Moreover, would include necessity of the EU to have to report under the reporting mechanism, an additional supervision of the other EU for which the other options envisioned do not provide

-          Point that will be discussed in the research —> legal feasibility

-          But example of EU accession to the UNCRPD

-          Based on what are now Art. 19 (not applicable), Art. 114 and 218 TFEU

-          To a certain extent a normative question

-          However, there are multiple reasons that can be brought forward as to the desirability for a strengthened position of EU protection in social rights protection.

-          On the one hand, inter alia Vandenbroucke has provided a comprehensive overview of arguments brought forward in legal scholarship which are: (1) institutional asymmetry between economic and social dimension of integration, (2) functional argument: a stronger social dimension would enhance the performance of the EMU, (3) legitimacy rationale of the EU, (4) normative evaluations ((a) self-assigned purpose, (b) principles of international social justice)

-          But moreover, and this is a less legal but rather a practical arguments: the promulgation of the European Pillar of Social Rights in 2017 under Juncker and its Action Plan and the advancing of this Pillar under von der Leyen are clear indications that the EU itself is pursuing a role where the EU has a bigger role in social rights protection.

-          “We need to enhance social rights and to strengthen the European social dimension across all policies of the Union as enshrined in the Treaties (…) to ensure that the transition of climate-neutrality, digitalisation and demographic change are socially fair and just.” (EPSR Action Plan, 2021); La Hulpe Declaration of 2024: “We are steadfast in our resolve in the pursuit of a social Europe (…) building on the European Social Charter”

-          Equally, the previous Secretary General of the CoE (Marija Pejčinović Burić), the ECSR, the High Level Group of Experts on Social Rights, the CDDH have all called for accession which is also enshrined in the 2014 ‘Turin Process’ of the CoE. Thus, from this perspective there seems to be a clear indication that the CoE also sees an added value in the protection of social rights.

-          However, of course, I am aware and this is also something that my research will take into account that there are also relevant reasons that speak against an increased role of the EU in the governance of social rights protections, primarily (1) the limited competences in the area, (2) the principle of subsidiarity, and (3) the political divide on the matters of social rights and social policy.

-          Outside of the scope of EU law as such

-          However, Ledra Advertising: EU institutions are always bound by the CFREU, including when they act outside the EU legal framework

o   Commission when signing MoU obliged to ensure compliance with EU law and the fundamental rights guaranteed by the CFREU

-          De facto as is emphasises also by Sascha Garben that de facto MS did not have room of manoeuvre

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-          1961: five of the core provisions (1, 5, 12, 13, 16, and 19) and additionally total number or articles or numbered paragraphs not less than 10 articles or 45 numbered paragraphs

o   Core provisions: right to work, right to organise, right to social security, right to social and medical assistance, right of family to social, legal and economic protection, and right of migrant workers to protection and assistance

1996: 6 of the 9 core provisions (additionally 7: right of children and young persons to protection and 20: right to equal opportunity and treatment ground of sex) and additional number of not less than 16 articles or 63 numbered paragraphs

-          Has been amended many times

-          At current division made between two groups of rights and between SPs who have ratified the CCP and those who haven’t

o   CCP: report on one group every 4 years

o   No CCP: report on one group every 4 years

-          Conclusions by ECSR; social and economic considerations Governmental Committee, proposals by Gov (incl. observers trade unios and employers’ organisations), Gov Com proposals sent to CoM, resolution by CoM + possibility of recommendations to SPs

-          Migrants are specifically protected under the ECSR

-          In general only for lawful residents of SPs who are also a member to the ESC

-          Appendix: applies to refugees (meaning refugee Convention) and stateless persons which lawfully stay on territory

• indeed, so far the CJEU has not accepted to find positive obligations under the Charter

• This is precisely what necessitates a look again at the CFREU

• However, it also needs to be said that positive/negative obligations are not always clear-cut

• Art. 51 CFREU does not exclude private individuals (Bauer), thus can apply horizontally

-          Legal-doctrinal methodology, focused on the internal perspective of what the law provides and how it functions.

-          However, an additional ‘law-in-context’ approach is utilised.

-          This law-in-context approach has the added advantage of being able to take into account (to a certain extent) also an external perspective, which allows a deeper understanding not only of what the law is but also why the law is as it is and (to a lesser extent) what it should become

-          Distinction to be made from a multi-disciplinary and/or interdisciplinary approach. The research does not try to implement research methods of political science or to interlink these methods with that of legal scholarship. Rather, the focus is on law and so are the research methods employed.

-          However, the research still includes an ‘outward’ perspective in addition to the ‘internal’ perspective, which is capable of looking into the reasoning behind certain policy and legislative choices. Moreover, it provides the possibility to take into account to a certain account what is the actual effect of legislation, which may become of relevance in particular in relation to the prevention of poverty and social exclusion

-          For example, for a while the general presumption prevailing was that poverty could be eradicated and living standards increased through ensuring that everyone capable would be employed. However, this approach was, later on, to be amended due to the realisation that people may end up in a situation where they are working full time but yet are poor due to high cost of living and low remuneration.

-          Classification taken from Seawright and Gerring

-          Due to reasons of feasibility the research does not try to establish whether there are in general any divergences in standard, nor is it seeking to make a generalisation stemming from the existing case studies.

-          Rather, the purpose of these cases selected for the first case study is to ‘revisit’ earlier divergences and to determine whether recent developments have brought these standards closer together. Additionally, three different spheres have been chosen to represent also different time frames and situations in which such divergences of standards have taken place.

CASE STUDY 1

o   (1) Fair remuneration: Arts. 4(1) (Rev)ESC; 45 TFEU (no-discrimination); Art. 157 TFEU (equal pay); in theory pay is excluded under Art. 153(5) TFEU but for minimum wage Directive Art. 153(1)(b) TFEU

§  Was found in: Greek General Confederation of Labour (GSEE) v. Greece (fair remuneration not guaranteed and reduction of minimum wage for persons < 25 years was excessive)

o   (2) Collective bargaining: Arts. 6 (specifically Art. 6(4)) (Rev)ESC; Art. 28 CFREU; Art. 156 – 7th indent (facilitation)

§  Was found in Laval (2007) and Viking (2007) vs. Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO)

Ø  CJEU had considered in Viking that collective action constituted a restriction on the fundamental freedom of establishment (for national court to ultimately decide whether justified)

Ø  CJEU had considered in Laval that right to take collective action may be justifiably restricted in order to protect the fundamental freedom to provide services

Ø  The ECSR held [in the follow up to Laval] that also where MS make legislative changes following a PRP, this still needs to be in compliance with Art. 6(4) (Rev)ESC. [found violation]

Ø  Also criticism from ILO

o   (3) Reasonable working time: Arts. 2(1) (Rev)ESC [reasonable working time]; Art. 31(2) CFREU; Art. 153(1)(b) TFEU (supplement and complement + minimum requirements); (Art. 156-2nd indent TFEU (facilitation)); Working Time Directive (2013)

§  Confédération générale du travail (CGT) v. France (2010):

Ø  held that (1) in theory it seems that the Directive may be in compliance with Arts. 2(1) and 4(2) ESC but that the Working Time Directive provides for many exceptions and exemptions which may adversely affect respect for the Charter by States in practice. It thus considers that depending on how Member States of the European Union make use of those exemptions and exceptions or combine them, the situation may be compatible or incompatible with the Charter.”

Ø  and (2) neither the situation of social rights in the European Union legal order nor the process of elaboration of secondary legislation would justify a similar presumption – even rebuttable – of conformity of legal texts of the European Union with the European Social Charter.

§  Greek General Confederation of Labour (GSEE) v. Greece (2014)

Ø  Stated that the fact that working time under the WTD was calculated on a 48h/ week on a 4 month basis à did not preclude that employees had to work 78h per week

§  Opt-out possibility for workers to go above the 60-hours working week not in compliance with the interpretation of reasonable time provided by the Committee

-          CASE STUDY 2:

o   Prevention of poverty:

o   Prevention of social exclusion: Art. 153(1)(j) TFEU (supplement and complement)

o   Ongoing crisis; developments can be taken into account

o   3 2030 headline targets; relevant one “The number of people at risk of poverty or social exclusion should be reduced by at least 15 million, including at least 5 million children, compared to 2019.”

o   Revised Social Scoreboard (EPSR Action Plan): can be categories under the Pillar’s three chapters (equal opportunities, fair working conditions, and social protection and inclusion)

§  SPI: 7 headline indicators: (1) At risk of poverty or social exclusion rate (AROPE); (2) At-risk-of-poverty rate or exclusion for children (0—17); (3) Impact of social transfers (other than pensions) on poverty reduction; (4) Disability employment gap; (5) Housing cost overburden; (6) Children aged less than 3 years in formal childcare; (7) Self-reported unmet need for medical care

o   How does it work?

§  Incorporation since 2018

§  European Pillar accompanied by Social Scoreboard (since 2021 17 headline + 31 secondary indicators); measured in country reports and JER

§  Process: https://www.eud.eu//wp-content/uploads/2022/05/Calendar-of-the-European-Semester-process.png.webp

§  Joint Employment Report (published in Nov as part of the Autumn Package); includes monitoring of MS’ performance in relation to the EPSR

§  CSR: (published as part of the Spring Package): provides tailored guidance on each MS suggesting socio-economic and fiscal policy measures to be taken

§  Country reports: (published as part of the Spring Package) The country reports provide a detailed analysis of each Member State’s economic and social developments and challenges and assess the extent these are addressed by national policies. Additionally, the reports review the implementation of country-specific recommendations from previous Semester cycles.

-          How future risk of conflict? More general, whether the EU is more lenient or more strict concerning the standards imposed and whether reference may be made to the ESC.

-          Distinction to Aranguiz: looked at proposal of further legislation and what EU law could do (different angle)

-          Addresses the biggest part of the principles out of the three chapters (10 principles) (other two: education, training and life-long learning (4), and fair working conditions (6))

-          Interesting because it is ongoing

-          Old target was not achieved (2020 targets)

-          Mention that I have thought about it previously but that ultimately the focus is on the legal feasibility and the assessing the available options under the criteria of whether they are legally feasible and suitable to achieve the furthering of social rights protection in EU law

-          Interviews with social partners would presumably be again more of a normative nature

-          Unnecessary to answer the research question, for the purposes of what is sought to be achieved sufficient to look at general statements or press releases of the organisations

-          Yes, because certain limitations apply.

-          Firstly, in the first Part only a bird’s eye view and in the second part an updated overview of what the EU’s role in social rights protection entails

-          Will focus on general grouping of aspects and recent developments

-          Necessary to illustrate the diverse endeavours through which the EU is involved in social rights protection; broader than merely judicial interpretation or hard law

• not multidisciplinary/interdisciplinary because research methods will not be taken over

• Will be used to provide additional context and understanding of the political landscape and reasoning surrounding certain decision-making (e.g. we can see from the travaux preparatoires the stances of States on certain decisions but how did these stances come about)

• Moreover, they are also relevant in relation to understanding the EU’s evolving role in social rights protection and MS reception thereof

• Lastly, they were also be specifically relevant to contextualise the EU’s governance in the European Semester in relation to the Social Scoreboard and the guidance proivded by the ECSR in this regard

• not detailed assessment as works on this incl. that of Papadopoulos already exist

• the idea is that it is unfeasible and also redundant to provide a detailed overview of the implementation of the ESC in national legal systems of EU MS, however, there is still an added value both for setting the scene of the research in understandig the current interplay, especially as it is ultimately for EU MS to protect social rights and implement relevant standards

  • Thus, the idea is to provide an overview of common obstacles in the implementation of the ESC that can be determined in order to showcase how the impact of the ESC in national legal systems is hindered at the moment and where also potentially an added value could be achieve through EU accession

    • Example being: reports of Committee are not sufficiently taken into consideration, lack of uniform understanding on the jusiticability of social rights, lack of ratification of the CCP (and additional clause on NGOs)

• La Hulpe Declaration of this year by the EU

• Turin Process in general talks about closer cooperation with EU

• Former SG of the CoE has indicated desirability of EU accession

• yes, specifically in the context of the Eurocrisis and also in the example of Laval and Viking, it seems that rather than EU MS falling below their obligations by themselves, it is EU governance and the priorisation of fundamental freedoms or economic policy which led to the violations in the first place

• However, other instances like COVID-19 show importance of EU funding in the protection of social rights

• In proposal, at “European level” refers also to the ESC

• Especially in instances where the EU may be seen as the aggressor, it would be of importance that there are some reliable minimum standards

• conclusions by ECSR

• change to the balancing exercise carried out by the CJEU (social rights vs. economic interests)

• potentially more “political force” for MS to comply with the ECSR conclusions and decisions

Ø  CJEU had considered in Viking that collective action constituted a restriction on the fundamental freedom of establishment (for national court to ultimately decide whether justified)

-> company wanted to change flag under which ship was; would have led to lower working conditions

Ø  CJEU had considered in Laval that right to take collective action may be justifiably restricted in order to protect the fundamental freedom to provide services

-> posted workers argued shoukd have same working conditions (agreed upon under collective agreement, not legislative minimum requirements)

-> Sweden made legislative changes in order to follow the CJEU’s guidance

Ø  The ECSR held [in the follow up to Laval] that also where MS make legislative changes following a PRP, this still needs to be in compliance with Art. 6(4) (Rev)ESC. [found violation]

• Art. 16 (Rev)ESC: Right of family to social, legal and economic protection

• Art. 17 (Rev)ESC: Right of children and young persons to social, legal and economic protection

• Art. 4 Add. Protocol of 1988 and Art. 23 RevESC: Right of elderly persons to social protection

• Art. 30 RevESC: Right to protection against poverty and social exclusion

• Principle 11(b) EPSR: Protection of children from poverty and to enhance equal opportunities

• Principle 12 EPSR: Social protection

• Principle 15(b) EPSR: Living in dignity for people of old-age

• [Also Art. 33 CFREU: right of the family to legal, economic and social protection

• guidance compared of EU Commission (Joint Employment Report, country-specific recommendations (and country reports))

• report expected beginning of next year on the best practices

• comparison between the guidance provided

• non-legislative proposals which have been adopted in relation to the EPSR

• For example:

  • Directive on Work-life balance of parents and carers is accompanied by multiple non-legislative measures of the Commission concerning protection against discrimination and dismissal, encouragement of gender-balanced use of family-relevant leaves, making better use of European funds to improve long-term care and childcare services and removing economic discentives for second earners

• Non-legislative actions relate primarily to the Commission providing guidance and monitoring

• constitutional pluralism = legal doctrine that deals with real or preceived conflicts between natinal constituitons and international law.

  • according to this doctrine, the nation-state constitutions and the European constitution are ultimately equally self-standing sources of constitutional authority that overlap heterarchically over a shared piece of authority, and ought to overlap.

• Could potentially be incorporated in Part III concerning the conceptualisation of the current relationship between EU law and the ESC

1. Influence: the way these actors have shaped the through their positions the outcome of the Council of Europe’s decision-making process both in substance and in their form (e.g. The Additional Protocol of the ESC was originally envisoned to be an Additional Protocol to the ECHR)

   • indication of political willingness

2. Political actors: What is meant are governments in their role in the Council (and European Council) as well as (national) parliaments as well as the political actors represented in the different bodies of the EU (COM, EP, Council) and the CoE (CoM, PACE)

   • exclusion of media

• Normative due to the use of the word desirable

  • desirable hereby relates to the question whether there could be an actual added value be achieved through EU accession or another form of closer harmonisation for furthering social rights protection in EU law

• Conscious decision to exclude normative element from central RQ

  • but there is of course an implied normative element