THE CFREU AND THE ISSUE OF VALUES
The CFREU as a Source of Fundamental Rights
No reflection on the values of the European Union can be undertaken without a thorough analysis of the CFREU. As indicated by Kenner, 18 there is an obvious overlap between the CFREU and the Constitutional Treaty in identifying the values concerned. The overlap is twofold. First, Article 2 TEU stresses the value of ‘respect for human rights’, whereas the CFREU contains a catalogue of ‘fundamental rights’. The semantic difference between both categories is slightly puzzling. Furthermore, within the CFREU a relationship between fundamental rights and major concepts is established by way of rubricae under which fundamental rights are allocated.
These rubricae relate to ‘dignity’, ‘freedom’, ‘equality’, ‘solidarity’, ‘citizenship’ and ‘justice’. With the exception of citizenship, these rubricae all feature in Article 2 TEU. The question thus arises whether the CFREU as a concrete illustration of EU values is a helpful tool to strengthen the social dimension of the European Union to the detriment of conflicting economic objectives.
The inclusion of fundamental rights improves the conceptual framework of European labour law. Earlier, Boonstra, referring to Betten, referred to the various functions that fundamental social rights fulfil.19 They provide a framework for assessing the actions of the EU institutions, and they can serve as a statement of principles which the Member States undertake to observe. As far as the Member States are concerned, the CFREU is relevant only insofar as they implement Union law. In principle, fundamental social rights form a basis for the competences of the European institutions and, where appropriate, for the creation of Union law. However, this function was ruled out by the CFREU, in structural terms. Boonstra refers to an interesting fourth function: fundamental social rights protect ‘national systems against the dominance of European economic objectives’.20 In my view, the relevance of the last function has been sufficiently highlighted by the infamous Laval quartet.
The fact that a number of these fundamental rights are not elaborated at all-or only barely elaborated-in secondary Union law is not a good enough reason not to incorporate these rights. Internal contradictions can arise between fundamental social rights and common market principles. The exemptions and restrictions provided for in the Articles of the Treaty which enshrine economic freedoms are not in themselves enough to shield domestic labour law against interference due to the economic freedoms.
The historical assumption that the social dimension of the European Union does not need to be strengthened because social policy is a field in which the Member States exercise their own sovereign judgment has proven to be erroneous.21 Sovereignty is inevitably curtailed wherever the social policy pursued by the Member States conflicts with the economic principles of the common market. Hence, the partial ‘mutism’ of EU law in the field of social law always comes with strings attached. Despite its commitment to subsidiarity, such a mutism effectively undermines the sovereign power of the Member States to pursue a social policy.
There have been a number of significant cases in which the Member States’ social policy has been challenged, with varying degrees of success, on grounds of economic law. National legislation on days off, 22 the ban on night work for women,23 national collective bargaining,24 the ban on job procurement by private companies25 and the protection of certain labour markets have all come under fire in the past.26 One could admit prior to the Laval Quartet that the Court of Justice had found perfectly reasonable solutions from a labour law point of view. What is still worrying, however, is that these solutions were argued on purely economic grounds that were at odds with the standards and values that had inspired the national legislatures. The Laval Quartet changed that perspective. In Viking and Laval an attack was launched on fundamental workers’ rights; whereas Rüffert, Viking and Commission v Luxembourg tend to reverse the classical paradigm of labour law as setting a ‘floor of rights’ instead of a ‘ceiling’. Broadening the conceptual framework offers greater guarantees of a more balanced approach to social issues. It also gives Member States more ammunition to safeguard domestic social policy and legislation against the detrimental effects of negative integration propagated by the Court. For this reason, many distinguished labour lawyers have rightly praised the adoption of the CFREU and its integration into the TFEU.27
The CFREU as a Means of Combating Negative Integration
The prospects of the CFREU as a means of restricting ‘negative integration’ cannot be sufficiently underlined. The added value of incorporating fundamental workers’ rights into the TEU via the CFREU risks being hampered by the following three factors:
(i) The constitutionalisation of capitalist principles.
(ii) Inadequate formulation of social rights.
(iii) The perception of economic, social and cultural rights as second class rights.
Hence, it is important to know how to deal with these three intellectual challenges.
The Constitutionalisation of Capitalist Principles
The Constitutional Treaty tends to ‘constitutionalise’ the economic principles on which the single market is based. The position assigned to these principles in Title I (Definition and Objectives of the Union) is surprising. In clear contrast to the first draft,28 the free movement of persons, goods, services and capital and freedom of establishment are upgraded to fundamental freedoms.29 The use of the term ‘fundamental freedoms’ is in itself striking from the human rights point of view. In Article 6 of the Treaty on European Union (Maastricht version) this term had a clear human rights dimension, and the language used was very much in line with that of the ECHR. The human rights connotation of the term ‘fundamental freedoms’ gives the impression that ‘fundamental freedoms’ and ‘fundamental rights’ are interchangeable. This reading is at odds with the fact that fundamental freedoms are essentially a statement of the EU’s objectives, while fundamental rights concern the EU’s relationship with its citizens. For this reason, it can be argued that genuine fundamental rights should prevail. In the present version of the TEU, the notion of ‘fundamental freedoms’ ceases to refer to principles of economic law, thus avoiding the idea that economic principles have been ‘upgraded’ to so-called fundamental freedoms.
However, a closer reading of the CFREU urges the reader to remain ‘vigilant’. The potential primacy of fundamental rights over market principles is diminished by the stealthy upgrading of a number of economic principles to full-fledged fundamental rights. For example, the freedom to conduct a business features under the heading ‘Freedoms’ in Article 16 CFREU.30 The formulation of the ‘right to choose an occupation’ as well as the ‘the right to engage in work’ contain references to the free movement of workers, the right of establishment and the right to provide services. The idea that the free movement of workers constitutes a ‘fundamental right’ was prefigured by an instrument of secondary EU law as early as 1968.31 Constitutional recognition of the freedom to conduct a business is nothing new: the principle is enshrined in a number of European constitutions. 32 Article 41 of the Italian Constitution is the most developed example here. However, unlike the right to work this freedom is not classified as a fundamental principle, but is regarded as a social function.33 Functions are traditionally distinguished from freedoms which are not linked to objectives. Freedoms protect aspects of human capital or innate abilities which individuals can use to achieve objectives spontaneously chosen. The recognition of the freedom to conduct a business in the CFREU is consistent with these constitutional traditions. It needs to be exercised ‘in accordance with Union law and national law and practices’. Hence, the recognition is far from absolute.
The equal status given to the right to take collective action for workers and employers (and their respective organisations), which appears in Article 28 CFREU might also provoke some unease. Such an approach is consistent with Article 6 ESC, but it is at odds with the unequal recognition given to the right to collective action in many European constitutions.34
Inadequate Formulation of Social Rights
The fundamental social rights formulated in the CFREU offer no added value compared with a number of traditional lists of economic, social and cultural rights, failing to come up to the standard set by the Community Charter of Fundamental Social Rights of Workers and the European Social Charter, to which the Treaty on the European Community (Maastricht version), the TEU and the TFEU refer.35
The right to work is not included in the Charter, nor is the right to fair pay. The right to fair working conditions referred to in Article II-91 CT (Article 31 CFREU) does highlight the important issues of health, safety and dignity, including, more specifically, the issue of working time. Thus, Kenner highlights that the CFREU could serve as a tool to challenge the infamous British opt-out with regard to maximum weekly working time.36 Furthermore, the reference to ‘dignity’ in the text of Article 31 allows for a much broader interpretation of fair and just working conditions. Industrial democracy does not get much further than the right to information and consultation. The right to codetermination-or participation-is not even mentioned. Information and consultation represents a narrower form of worker involvement. Directives on information and consultation are for this reason adopted by a qualified majority, whereas Directives relating to codetermination require unanimity. Many Directives relating to information and consultation clarify that the exercise of such a right cannot affect the managerial prerogative.37 The CFREU thus fails to come up to the standard of the acquis de l’Union and to that of the Community Charter of fundamental social rights of workers.
The Perception of Economic, Social and Cultural Rights as Second Class Rights
The predominant approach these days is not to uphold the caricature of the traditional dichotomy between civil rights and economic, social and cultural rights as something corresponding to the distinction drawn between programmatic, unenforceable rights and enforceable ‘Abwehrrechte’. Economic, social and cultural rights are no longer regarded as second generation (or second class) fundamental rights. The question is whether the CFREU is consistent with this contemporary view. At first sight, the inclusion of civil rights, political rights and economic and social rights in a single instrument suggests that the two categories have equal status. In fact, the Preamble of the CFREU expresses the idea that the European Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity. The Preamble also re-affirms the rights enshrined in the instruments of the Council of Europe dealing with civil and political rights, as well as with social rights. However, the Lisbon Treaty, including the CFREU is often subjected to a different reading. Indivisibility is not always interpreted as giving identical status to social rights and to civil and political rights.
It is immediately striking that the EU merely seeks accession to the ECHR (Article I-9 CT and Article 6(2) TEU). No mention is made of accession to the European Social Charter on which the CFREU has based much of its substance.38 The Draft Treaty on European Union approved by the European Parliament in 1984 scores considerably better. The so-called Draft Spinelli Treaty postulated the possibility of accession to the European Social Charter.39 Neither Article I-9 CT nor Article 6(3) TEU refer to the ESC as a frame of reference for general principles of EU law-both provisions merely refer to the ECHR, taking the same line as the existing Treaties. The TEU suffers from the same problem, but the lack of any mention of the ESC in Article 6 TEU (on the Union’s founding principles) is partly remedied by the Preamble, where the Member States confirm their support for the fundamental social rights set out in the ESC and the Community Charter.
The majority of the fundamental social rights in the CFREU come under the heading ‘Solidarity’. Unlike such well-known headings as ‘Freedoms’ and ‘Equality’, this category might lack a certain Cartesian clarity in the eyes of a lawyer. The controversial classification of certain fundamental rights under this heading could amount to the perception that they are less relevant from a legal point of view. In fact, it is not at all clear why the freedom of collective bargaining, unlike the freedom to belong to a trade union, has not been included under the heading ‘Freedoms’. The idea that fundamental social rights listed under the heading ‘Solidarity’ do not contribute to the notion of freedom and equality is an uncomfortable one, and detracts from the contribution that this tradition of basic rights has made to the development and credibility of both concepts. Last but not least, it seems highly questionable to us that human dignity should be thought of only in connection with the right to life, the right to human integrity, the prohibition of torture and inhuman or degrading treatment or punishment, and the prohibition of slavery and forced labour. The right to human dignity is matricular;40 all fundamental rights are derived from this notion. Thus, Article 31 relating to fair and just working conditions refers to ‘dignity’. The case against the equal status of the rights rubricated under ‘solidarity’ is often built on the enigmatic distinction in Article 51 CFREU between ‘rights’ and ‘principles’.41 Principles in this respect would not be awarded the same degree of enforceability. They need to be ‘observed’ rather than ‘respected’. In my view, such a distinction is highly problematic. First, all the principles which are allegedly held to have a programmatic character have been phrased as rights. In fact, one of the rare examples of a ‘right’ enshrined in the CFREU which is qualified as a principle is the principle of equality. The mere fact that such a concept is qualified as a ‘principle’ is meaningless. Thus the former EC Treaty enshrined the ‘principle’ of equal pay of men and women for the same work as early as 1957. As the Court of Justice of the European Union (CJEU) argued in the famous Defrenne judgment, 42 the use of the word ‘principle’ in the Treaty cannot be used to challenge the direct effect of a Treaty provision. It is worth repeating the historic words of the Court in this seminal text: [I]t is impossible to put forward an argument against its direct effect based on the use in this article of the word ‘principle’, since, in the language of the Treaty, this term is specifically used in order to indicate the fundamental nature of certain provisions, as is shown, for example, by the heading of the first part of the Treaty which is devoted to ‘Principles’ and by Article 113, according to which the commercial policy of the Community is to be based on uniform principles.
18. Kenner (n 2) p 548.
19. K Boonstra, Fundamenten voor een Sociaal Europa (The Hague: Boom Juridische Uitgevers, 2003) 32–33.
20. Ibid 31.
21. See the seminal analyses of S Deakin, ‘Labour law as market regulation’ in P Davies, A Lyon-Caen, S Sciarra and S Simitis (eds), European Community Labour Law (Oxford: Oxford University Press, 1996) 63–93 and S Giubboni, Social Rights and Market Freedom in the European Constitution (Cambridge: Cambridge University Press, 2006) 290. See recently S Giubboni, ‘Social rights and market freedom in the European Constitution: a re-appraisal’ (2010) 2 European Labour Law Journal 161–84, as well as Deakin (ch 1 in this volume).
22. CJEU, Case C-145/88 Torfaen Borough Council  ECR 3851; Case C-312/89 Conforama  ECR I-997.
23. CJEU, Case C-345/89 Stoeckel  ECR I-4047; Case C-158/91 Lévy [1993 ] ECR I-4287; Case C-421/92 Habermann-Beltermann v Arbeiterwohlfahrt  ECR-I-6157.
24. CJEU, Case C-67/96 Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie  ECR I-5751; Case C-115/97, Case C-116/97, Case C-117/97 Brentjen s’Handelsonderneming  ECR I-6025; Case C-219/97 Maatschappij Drijvende Bokken BV  ECR I-6121; Case C- 222/98 Van der Woude v Stichting Beatrixoord  ECR I-7111.
25. CJEU, Case C- 41/90 Höfner and Elser v Macroton  ECR I-1979.
26. CJEU, Case C-22/98 Becu  ECR I-5665; CJEU, Case C-179/90 Merci Convenzionali v Siderurgica Gabrielli SpA  ECR I-5889; CJEU, Case C-154/89 Commission v France  ECR I-659; CJEU, Case C-180/89 Commission v Italy  ECR I-709.
27. See also S Sciarra, ‘Market freedom and fundamental social rights’ in B Hepple, Social and Labour Rights in a Global Context (Cambridge: Cambridge University Press, 2002) 176. The author argues that the integration of fundamental social rights provides a healthy counterbalance to norms relating to the operation of the market. In the same vein, see Bercusson, European Labour Law (n 2) 384–99 and B Bercusson, ‘Qu’attendre de la promotion de la Charte des droits fondamentaux par le Traité de Lisbonne’ (2008) Revue de droit du travail 74–76. In a posthumously edited contribution, Yota Kravaritou welcomed the integration of the CFREU providing a prospect that the functioning of the common market and free competition could be reconciled with social rights: Y Kravaritou, ‘Les chartes de l’Union européenne et les droits sociaux’ in N Aliprantis (ed), Les droits sociaux dans les instruments européens et internationaux (Brussels: Bruylant, 2009) 55–74.
28. CONV 528/03.
29. Article I-4 CT. The inclusion of ‘fundamental freedoms’ in Title I occurs in CONV 724/03, dated 26 May 2003.
30. In the same vein, see the critical observations of M Weiss, ‘The politics of the EU Charter of Fundamental Rights’ in B Hepple, Social and Labour Rights in a Global Context (Cambridge: Cambridge University Press, 2002) 88.
31. See the Preamble of the Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community: ‘Whereas freedom of movement constitutes a fundamental right of workers and their families; whereas mobility of labour within the Community must be one of the means by which the worker is guaranteed the possibility of improving his living and working conditions and promoting his social advancement, while helping to satisfy the requirements of the economies of the Member States; whereas the right of all workers in the Member States to pursue the activity of their choice within the Community should be affirmed’.
32. See in this connection Article 41 of the Italian Constitution, Article 12 of the German Constitution (‘Basic Law’) and Article 38 of the Spanish Constitution.
33. Freedom to conduct a business is stated to be subordinate to ‘utilità sociale’. It may also not be exercised in a manner that is harmful to safety, freedom and human dignity. The legislature is given the task of ensuring that public and private economic activity is carried out and coordinated with reference to those social objectives.
34. In the French, Italian and Spanish Constitutions, for example, only the workers’ right to strike is recognised. The Portuguese Constitution expressly prohibits lock-outs.
35. See in this connection Article 151 TFEU, the Preamble to the TEU and the Preamble to the CFREU.
36. See Article 22 EU Working Time Directive 2003/88, and J Kenner, ‘Economic and social rights in the EU legal order: the mirage of indivisibility’ in T Hervey and J Kenner, Economic and Social Rights under the EU Charter of Fundamental Rights (Oxford: Hart Publishing, 2006) 21.
37. See, for example, Point 2 of the Subsidiary Requirements provided for in the European Works Council Directive 94/45 and Part 2(c) of the SE Directive 2001/86.
38. For a recent plea in favour of such an accession, see the contribution of O de Schutter,
‘Le rôle de la Charte sociale européenne dans le développement du droit de l’union européenne’ in O de Schutter (ed), The European Social Charter: A Social Constitution for Europe (Brussels: Bruylant, 2010) 95–146.
39. See on this subject B Schulte, ‘Titel VIIII’ in H von der Groeben, J Thiesing and C-D Ehlermann, Kommentar zum EU-/EG Vertrag (Baden-Baden: Nomos Verlagsgesellschaft, 1999) 917, 936. The text of the Draft Treaty was published in  OJ C 77.
40. See in this connection the scope given to ‘Menschenwürde’ at the top of the list of fundamental rights in the German Grundgesetz. The reference to the ‘right to live in dignity’ at the start of the Belgian list of fundamental rights in an Article that relates only to economic, social and cultural rights seems conceptually inappropriate.
41. See on this interpretation the very critical observations of J Kenner (n 36) pp 14–24. See on this issue also M Weiss (n 30) pp 80–88.
42. See CJEU, Case C 43/75 Defrenne v Sabena  ECR I-455.