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20 October 2017

The European Pillar of Social Rights: Bridging the gaps or falling short?

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The events surrounding the European Pillar of Social Rights (EPSR) are approaching a conclusion, with an agreement in the Council to be expected in the coming days and the proclamation planned for the 17th of November in Gothenburg. Therefore, the time is ripe to reflect on whether the EPSR, also called ‘the last chance for social Europe’ by some, will deliver what is expected?

And expectations run high. The EU social dimension has been neglected in the past decade or so, and there are two imbalances, broadly recognised by researchers, plaguing it. First, the imbalance between the (national) social dimension and the (pan-European) internal market, whereas constitutionalisation of economic rights has led to the social rights losing out whenever any supposed balancing takes place. Second, the deregulation of national labour law and social protection systems (via EU-supported austerity measures) has culminated in the second imbalance – an imbalance between economic and monetary governance and social policy. The continued relative weakness of the EU-level social dimension has only added to these ‘imbalances’.

A recent ETUI working paper examines whether the EPSR provides an answer to this conundrum. Will the Pillar succeed in making the EU more ‘social’? And particularly, will the EPSR change anything in the development of EU social policy? Does it represent a long-awaited shift in the EU discourse or is it merely another ‘soft law’ initiative that will fall short?

What did the EPSR become?

After long consultations and many expectations the EPSR itself consists of a recommendation and a draft proclamation to be proclaimed in November in Gothenburg.

The principles/rights set out in the EPSR range from matters where the EU has clear legislative competence (e.g. ‘healthy, safe and well-adapted work environment’) and where there is a already rather strong legal frameworks in place (e.g. gender equality), to areas where the EU has limited or no legislative competence at all (e.g. ‘housing and assistance for the homeless’ and ‘wages’). The content of the principles/rights has also notably changed from the consultation paper (issued in spring 2016) and now contains a higher level of protection. For example, instead of merely stating that protection against eviction should be ensured, the EPSR now introduces an explicit right for vulnerable people not to be evicted.

The recommendation and proclamation, as proposed by the Commission, have identical content, but differ in their impact and legal form. The recommendation, adopted under Article 292 TFEU, is an instrument that steers action at the national level and therefore is addressed primarily to the Member States. The proclamation is a much more unique instrument, in that it is not explicitly regulated by the Treaties. However, in practice proclamations have been adopted in the past – e.g. EU Charter of Fundamental Rights was proclaimed in 2000, and then incorporated into the Treaties in 2007. In contrast to recommendation, proclamation is an inter-institutional instrument, expressing a commitment by the EU institutions and, only indirectly, by the member states. However, neither a recommendation nor a proclamation is legally binding.

In large part due to its soft law status, the EPSR in itself does not directly add much to the rights of the people living and working in the EU. Only if adequately utilised and used to the maximum of its capacity, only then could the EPSR have some meaningful impact. However, any real impact will depend on how well and actively the EPSR can be relied upon and used by the EU institutions and other stakeholders.

Here I would like to propose some possible ways how the EPSR could be instrumentalised and could change some aspects of EU-level policy-making process both within the area of social policy and beyond.

The EPSR and making EU social policy and labour law

Regarding the development of EU social policy and labour law, there are potential three levels at which the EPSR could have influence. First, it could re-shape and indirectly influence EU primary law. It could also inspire and structure future EU secondary law initiatives. Finally, the EPSR could trigger mainstreaming more social standards into the EU governance mechanisms (e.g. in the European Semester).

The Commission refers to the Charter as the relevant precedent for proclamation. Hence it awards the EPSR a similar significance as was awarded to the Charter before its incorporation in the Treaties. This means that, in the very least, the EPSR should serve as an interpretation aid for those social rights that are embedded in the Charter and fleshed out further by the Pillar. The EPSR also seems to offer a way to bolster Article 9 TFEU (social clause) and pave the way for achieving the EU social objectives (for example, Article 3(3) TEU, 151 and 152 TFEU).

At the level of secondary law, the EPSR might change the practice of making EU labour law and social policy. The EPSR could serve as an inspiration and a trigger for new legislative initiatives, especially because many matters covered by the Pillar have until now not been regulated at the EU level. Currently though an actual list of new legislative initiatives is clearly missing. In addition, the rights and principles embedded in the EPSR could influence the content of future initiatives in the field. The legislative initiatives included in the ‘Pillar package’ on 26 April 2017 (especially on the revision of the Written Statement Directive and the initiative on access to social protection) refer to the EPSR in the explanatory part of the proposals and their content also corresponds to both the principles and rights embedded in the EPSR. In that way the EPSR has already served as a sort of reference point for the content of these initiatives, while impact on future initiatives remains to be seen.

The EPSR promises to seriously affect the EU’s governance mechanisms. Here the Commission has planned to utilise the Scoreboard attached to the EPSR as the key instrument setting out indicators to be mainstreamed in the governance processes. Although the indicators currently included in the Scoreboard are not sufficient to adequately represent and deliver (all) the rights embedded in the EPSR, it represents a good first step in the direction of concretisation. A specific soft law mechanism where the Commission pledges to use and mainstream the EPSR and the Scoreboard is the European Semester, even though the latest set of country specific recommendations does not as yet reflect any changes triggered by the EPSR.

The EPSR’s impact beyond the social acquis

The Commission does not explain whether the EPSR will have any effect on the EU level policy beyond the social acquis. However, one could envision at least two directions in which the EPSR could play some role.

Firstly, the EPSR might structure and influence the institutional discretion shown by EU institutions when their actions have an effect on questions regulated by the Pillar. The CJEU has used the EU Charter as a reference point for limiting institutional discretion after it was proclaimed and before it became legally binding (e.g. judgment in C-540/03 Parliament v Council). The CJEU has also ruled that institutions in their relations with third parties cannot depart from their obligations set out in soft law instruments, since such departure could mean a breach of general principle of legal certainty (see C-189/02 P et.al. Dansk Rørindustri). The interinstitutional character of the proclamation is the key factor here and could allow the stakeholders to use the EPSR as a shield or even a sword.

Secondly, the ESPR could also serve as a reference point for policy proposals beyond the area of social policy. For example, since EU policies have to be interpreted and applied in a coherent manner to ensure legal certainty, one could make the argument that legislative initiatives in any area of EU law cannot contradict or trigger breaches of the EPSR principles (e.g. at the national level). One could also argue that the EPSR should be used as a vetting mechanism in the internal institutional processes such as REFIT. While so far the Commission has not proposed to commit to the EPSR’s standards in the REFIT process, by arguing that the EPSR will ‘offer[…] a new way to assess whether existing EU legislation is designed and governed in a way that it is fit-for-purpose […]’ it alludes to such a possibility.

To sum up, as it currently stands, the EPSR is certainly no panacea for the most serious issues plaguing social Europe. Instead it is a moderately ambitious soft law initiative whose impact is largely dependent on whether or not the relevant actors (EU institutions, the member states, social partners, civil society etc.) will take it seriously and treat it as the first step towards actual social convergence across Europe. I have offered here some ways how the EPSR could serve as something more than a mere soft law document that barely gets a mention as time passes by; whether it will become a reality, however, remains to be seen.

The article written by Zane Rasnača, ETUI researcher, has been first published on New European Trade Unions Forum (NETUF) blog on 20 October 2017. A version of this article has also been published on the EUROPP – European Politics and Policy or the London School of Economics blog on 16 November 2017.

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