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30 June 2016

The ‘European Pillar of Social Rights’ scrutinised by ETUI lawyers

On 8 March 2016 the European Commission launched a public consultation on its ‘European Pillar of Social Rights’ project. Anyone and everyone is invited to respond online to four questions on the substance of the Commission’s text and to six open questions on the current state and future challenges of the EU with regard to social matters. In an ETUI report, published online on 23 June, two lawyers provide a detailed legal analysis and critique of the Commission’s text. Their main fear is that the exercise may be diverted from its original objectives – improving social rights – in order to pursue solely economic objectives.

The driving force behind the ‘European Pillar of Social Rights’ project is Jean-Claude Juncker. In the context of escalating mistrust of the European project the Commission president has launched an information campaign in recent months to persuade European citizens that Social Europe is not just pie in the sky.

The authors of the ETUI report identify a number of uncertainties, even inconsistencies surrounding this project. First of all, they question its purpose, appearing to cast doubt on whether it really is social in nature.

‘The European Pillar of Social Rights is embedded in a deep economic rhetoric in which economic growth appears to be the main goal’, write Isabelle Schömann (ETUI) and Klaus Lörcher (former ETUC legal advisor).

Numerous questions remain concerning the ambit of the ‘Social Pillar’. Limited for the time being to the euro zone the initiative could be extended to other member states who wish to join it.

The ETUI lawyers see in it the risk of creating a ‘two-speed Europe’, at the heart of which social inequalities and social dumping could be further exacerbated. They also observe the legal uncertainty surrounding the ongoing exercise. ‘The lack of clarity about the legal nature of the pillar and the related consequences certainly does not create the legal certainty badly needed for further progress in the protection of social and labour rights’, they write.

On a more political level they suspect that the Commission would like to use the project to bring about a paradigm shift, substituting ‘labour market law’ for ‘labour law protection’.

Schömann and Lörcher further note the reappearance of the concept of ‘flexicurity’, which had fallen by the wayside due to its poor performance in Europe. The authors recall that a developed social dialogue constitutes one of the pillars on which this arrangement rests, implemented largely in Denmark. The crisis management deployed by national and European authorities has eroded collective bargaining systems that in many member states have been sharply weakened by a strong tendency towards decentralisation.

The second part of the report is devoted to a thorough legal analysis of the 20 policy areas covered by the project. The lawyers point out the incomplete character of the preliminary text’s legal references. They complain in particular that the text is based mainly on a flawed assessment of EU primary law – the treaties and the Charter of Fundamental Rights – and is largely oblivious to the acquis communautaire in the social domain.

For example, one of the 20 domains identified by the Commission is devoted to health and safety at work. The authors note the lack of reference to the twenty or so directives adopted by the EU since 1989. Similar omissions are noted with regard to the parts on social dialogue, terms and conditions of employment and gender equality, among other things.

Moreover, the omission of essential references to international social law (ILO Conventions, European Convention on Human Rights, European Social Charter) ratified by the member states or even the UN Convention on the Rights of Persons with Disabilities, ratified by the EU, as well as the meagre attention afforded the jurisprudence of the international courts in social matters seems to confirm the initiative’s lack of interest in the social dimension of the European Economic and Monetary Union (EMU).

Besides the online questionnaire, accessible to institutional actors and to ordinary citizens, the Commission intends to test its project by consulting other EU institutions, national parliaments and authorities and the social partners, including the ETUC and other stakeholders (NGOs, experts and so on). The final draft of the ‘Pillar of Social Rights’ is supposed to be presented at the beginning of 2017. It is intended to serve as the basis of a White Paper on the future of EMU.

For more information:

Schömann, I. and Lörcher K., The European pillar of social rights: critical legal analysis and proposals, ETUI, Report 139 (23 June 2016).

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