(1) The Lisbon Treaty
On 1 December 2009, the Treaty of Lisbon entered into force. Its content was developed around 2001-2003 by the so-called European Convention, convened especially to give birth to a European Constitution. However, after the negative results of the referendums in France and the Netherlands it was decided to strip this document of the controversial epithet ‘European Constitution’, but to insert its text, slightly modified, into the existing European Treaties. That has been done through the Treaty of Lisbon. Under this treaty, the Treaty on the European Union (TEU) has changed significantly. The same applies to the old EC Treaty, which in future will be known as the Treaty on the Functioning of the European Union (TFEU).
The EEC was launched in 1957 primarily as an economic project. The social component was largely neglected. The founding fathers had confidence in the ability of the common market to prompt social progress so that only some coordinating incentives would be needed. Consequently, the EEC Treaty did not contain many specific competences enabling the EC institutions to issue social regulations.
It was only at the summit in Paris, April 1972, that it was formally recognized that the social objectives of the EEC are as important as its economic objectives. Since that time, the EEC rules in this area have increased. Even so, the harvest initially was small, because in those days European social legislation could be created only by a unanimous vote in the EC Council of Ministers, and that was seldom achievable.
However, since 1986, in successive Treaty amendments, on a steadily growing number of social issues the unanimity rule in the Council of Ministers has been converted into qualified majority voting. This has made decision making on social matters slightly-although not much-easier.
Since 1992, certain provisions have also been included in the European Treaties which open up the possibility of creating, alongside heteronomous law (law created by public authorities), autonomous European social law (law created by trade unions and employers). Finally, since 1997 the EU Treaties have been enriched by references to fundamental rights, which may support legislation and case law relating to European social law and European social policy. Now there is the Treaty of Lisbon.
What do the new texts mean for social law and social policy, both at the European level and at the national level? That is the theme of these texts.
We will deal with the economic versus the social constitution; the values and objectives; the European Court of Justice (ECJ) in conjunction with the European Convention on Human Rights (ECHR); the role of the social partners in Europe; the social competences and the law making process in social matters; the principle of solidarity; the coordination of social and economic policies; services of general interest; EU governance; and references to the EU Charter.
The Economic versus the Social Constitution
In recent years it has become increasingly clear that the EU is not necessarily a boon for social justice and social policy, but entails great risks as the EU embraces the ‘laws of the market’ and ‘free competition’. The oldest text of the Treaty, which offered a very liberal market model, inspired the European authorities-notably the European Commission and the European Court of Justice-to take strong action against so-called distortions of competition and against state aid by Member States in favour of their own industries.
Over the years, however, anxiety has increased among citizens in many countries that the freedoms of the European market have led to much collateral destruction of acquired rights. European policy on the ‘distortion of free competition’ and state aid are understandable in relation to the major economic players. However, they have also led to highly questionable interference on the part of ‘Europe’ in the maintenance of employment in regional context; decent working conditions and social security; public services; and aspects of the socio-cultural policies of the Member States, for example in the areas of support for social housing, sport, public broadcasting and even zoos.
Under pressure from a restive public, politicians are more and more reluctant to apply the ‘laws of the market’ consistently. For instance, fear of the replacement of their own workers by cheaper foreign workers (the ‘Polish plumber’) has led to a substantial dilution of the Services Directive.
Some Member States, such as France and Spain, continue to protect their key industries and in 2006 took emergency measures to prevent the acquisition of their energy giants by Italian and German rivals, respectively. Also, state aid to national industries still frequently rears its head (see the proposed German aid to Opel, 2009). And the European Commission immediately rallied to support some Member States when their main banks got into trouble in 2008.
At present, it is notably the EU Court of Justice which in various judgments is showing its attachment to market liberalism by giving it priority over other values. In the cases Viking and Laval the right to take collective action was held to be inferior to the economic freedoms in an open European market. In Rüffert, based on the grounds of the same philosophy, a German regional government was prohibited from imposing social conditions on public procurement, a tried and tested device for achieving social progress, recommended by the ILO. In Commission v Luxembourg, a Member State was prohibited from requiring higher labour standards for the employment of foreigners than prescribed in the EU Posted Workers Directive.
These judgments have brought to light two fundamental problems of social law and social policy:
- Which rules apply if the social rights come into conflict with the ‘laws of the market’?
- Do Member States still have the freedom to enact or maintain their labour and social security law as long as it is more favourable to the workers?
It is interesting to consider the extent to which the entry into force of the Treaty of Lisbon has changed the answers to those questions.
Values and Objectives
Regarding the first question, it should be noted that at the European Convention 2002-2003 there was little discussion of whether the character of Europe as a social market economy was to be confirmed in the proposed European Constitution. There were various proposals to reinforce the social face of the EU by inserting principles such as human dignity, equality, social justice, solidarity, sustainable development, social progress, full employment and the battle against social exclusion. All these concepts have finally entered the European Treaties by way of the Treaty of Lisbon and found a place in Articles 2 and 3 TEU and Article 67 TFEU. Moreover, during the Intergovernmental Conference (IGC) of 2003-2004 a so-called horizontal social clause was developed, which states that in defining and implementing its policies and actions, the Union shall take into account requirements linked to the promotion of a 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 (Article 9 TFEU). This provision is seen as an expression of the desire to mainstream social policies in all areas of policy.
However, references to social values are counterbalanced by that other great EU objective, namely to maintain an ‘internal market’ (Article 3 TEU), characterised by an open market economy with free competition, with stable prices, sound public finances and monetary conditions and a sustainable balance of payments, among other things. In the reformed European Treaties all this has found a place in Articles 119 and 120 TFEU and is further developed in numerous Articles on the free market and competition. However, it is significant that, at the insistence of France, at the European Council in June 2007 it was decided14 not to retain in the Lisbon Treaty the passage in the text of the draft European Constitution in the Article on the aims of the Union (Article I-3(2)) which stated that ‘the Union … will offer its citizens an internal market where competition is free and undistorted’. Apparently, the politicians found it a bit over the top to give the open market economy with free competition equal rank with the other aims, including the social objectives of the EU. Free competition is now relegated to Protocol No 27 to the reformed European Treaties, which states that ‘the European Union includes a system ensuring that competition is not distorted’ and that ‘the Union shall, if necessary, take action’.
Finally, we may recall the elaborate ‘Solemn declaration on the rights of workers, social policy and other issues’ which the European Council adopted on 18/19 June 2009 as part of the overall package of facilities to ease the concerns of the Irish people regarding the Treaty of Lisbon. While this statement contains nothing new-the content can also result from the various provisions of the reformed Treaties-it still signals that the politicians want to give the social rights extra emphasis. As such, it was endorsed in June 2009 by a petition signed by about 100 labour lawyers from many EU Member States. In all this sufficient arguments were discernible to suggest that in a future conflict between social rights and the laws of the market priority would be given to social rights. And ‘priority’ is stronger than the solution formula of ‘proportionality’ which permits limitations on social rights with regard to the laws of the free market, as the EU Court of Justice in its earlier cited decisions has used it.
Turning to the relationship between the EU and the ECHR, the Treaty of Lisbon says that the EU shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6(2) TEU), a provision which provides the necessary legal basis for such membership at any time in the future. However, the realisation of this intention requires a Treaty which must be voted in the Council of Ministers with unanimity and endorsed by all EU Member States in conformity with their national procedures (Article 218(8) TFEU) and by all 45 Member States of the Council of Europe. Moreover, it is added that accession shall not affect the Union’s competences as defined in the Treaties (Article 6(2), last sentence TEU) and that statement is repeated again in Protocol No 8 to the reformed Treaties (Article 2, first sentence), which ensures that accession shall not affect the competences of the Union and of its institutions nor the situation of Member States in relation to the ECHR. This Protocol No 8 and Declaration No 2 in the Final Act of the IGC 2007 underline that the accession of the EU to the ECHR will be arranged in such a way that the specific characteristics of the EU and of EU law will be left untouched.
Serious problems may lie ahead when national courts are faced with a dual system of monitoring compliance with fundamental rights: the Court of Justice of the EU in Luxembourg and the European Court of Human Rights in Strasbourg. This situation brings the potential risk that the number of legal disputes will double, as claimants may try to obtain adjustments of national law along two lines-in Luxembourg and in Strasbourg-and that these two courts have to rule on similar but not entirely congruent sets of rights. For labour and social security law one may think, by way of example, of the trade union rights, as mentioned in Article 11 ECHR and in Articles 12 and 28 in the EU Charter of Fundamental Rights.
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