EUROPEAN UNION WORLD

Fundamental rights in the EU: three years after Lisbon, the Luxembourg perspective

Fundamental Rights and EU Citizenship after the Treaty of Lisbon

The EU and human rights: a new era under the Lisbon treaty?

REFERENCE TO THE EU CHARTER OF FUNDAMENTAL RIGHTS

In recent decades, within the EU, increasing attention has been paid to fundamental rights. In the first place the Treaties of Maastricht and Amsterdam inserted amendments on the applicability of fundamental rights in the European Treaties. In particular, the Treaty of Amsterdam brought in a basic standard by which the ECHR and the fundamental rights enshrined in the constitutional traditions common to the Member States were recognised as general principles of Community law. Moreover, the Treaty of Amsterdam inserted a few specific fundamental rights in the European Treaties. Secondly, it was considered whether the EU as such could join the European Convention on Human Rights. Thirdly, the EU itself engaged in the preparation of a Charter of Fundamental Rights. This latter process was taken up in 2000 by a convention that drafted the so-called Charter of Fundamental Rights of the European Union. This Charter was adopted in December 2000 by the European Council of Nice, but at that time it did not receive a legally binding character.

The European Convention that prepared the European Constitution departed from these points. It suggested therefore, first, inserting the EU Charter of Fundamental Rights in full into the European Constitution, thus making it legally binding. To gain enough support for that idea the Convention designed a number of additional provisions to limit the scope of the Charter. This was necessary to overcome the opposition of a number of governments-including those of the UK and the Netherlands-which strongly opposed the possibility that the Charter could become a source of dispute that could give the citizens direct claims against governments or employers. During the 2003-2004 IGC stage the resistance to the inclusion of the Charter in the Constitution continued until the last moment. To overcome that resistance a few more sentences were added to the ‘general provisions’ of the Charter, particularly on the status of the official Explanations of the Charter. However, since the referendums in France and the Netherlands things have gone in a different direction. The IGC of 2007 at the insistence of (again) Britain and the Netherlands agreed to keep the full text of the Charter outside the reformed European Treaties. For the Dutch Government especially this was one of the most important points in order to provide it with enough arguments to convince the Dutch people that the Lisbon Treaty was substantially different from the European Constitution and thus that there was no need to call a new referendum. Instead of a complete incorporation of the full text of the Charter in the European Treaties, there is now only one reference to the Charter in the Treaty of the European Union, in which the Union recognises the rights, freedoms and principles set out in the Charter. It is added that the Charter shall have the same legal value as the Treaties, but it is also explicitly asserted that the Charter shall not extend in any way the competences of the Union as defined in the Treaties and that the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the Explanations referred to in the Charter that set out the sources of those provisions (Article 6 TEU). The version of the Charter established by the IGC in 2003-2004 was agreed by the IGC in 2007 with another small modification and then endorsed by the EU institutions in Strasbourg on 12 December 2007 and published in the EU Official Journal.

Many people believe that the Charter will be an engine for EU activities in the social field due to the fact that many fundamental rights have a social nature.

HOW THE HORIZONTAL SOCIAL CLAUSE CAN BE MADE TO WORK: THE LESSONS OF GENDER MAINSTREAMING

The new Article 9 of the Treaty on the Functioning of the European Union (TFEU) requires the EU institutions and the Member States to assess all their policies, laws and activities in light of their implications for the achievement of social goals. In combination with the Charter of Fundamental Rights and the future accession of the EU to the Convention for the Protection of Human Rights and Fundamental Freedoms, it may contribute to a fundamental reorientation of EU legislation and jurisprudence towards social aims. The implementation of gender mainstreaming over the last 10 years enables identification of the key factors required if horizontal European policies are to succeed. The experience of gender mainstreaming shows in particular that, in order to develop its full potential, the new Horizontal Social Clause will require firm commitment on the part of all European actors involved in the fields of employment, social protection, the fight against social exclusion, education and training and human health. Subject to impetus by a strong political will, Article 9 has the potential to prompt significant redirection of the most liberal European policies towards social ends and to contribute to the emergence of a European social model.

THE ROLE OF THE SOCIAL PARTNERS IN EUROPE

In the Treaty of Maastricht (1992), the so-called social dialogue was anchored in the European Treaties. This is a remarkable process by which the European social partners have been given legislative powers of a kind (Articles 138–139 TEC). Since then, the European Commission in all its social policy initiatives must consult the European social partners. If the social partners so desire, the European Commission temporarily stops its preparatory work in order to enable the European social partners to take the matter into their own hands and to conclude an agreement on that matter. Subsequently, the social partners via the European Commission may offer their agreement to the Council of Ministers of the EU, which may convert it into a Directive, which is just as binding as other EC Directives.

These procedures over the past 10 years have been very little used and only for a few high profile issues. Nevertheless, this possibility gives the EU a distinctive neo-corporatist streak. Not remarkable for the Benelux countries, Austria and the Scandinavian countries, but for many other EU countries it is extraordinary.

At the European Convention the European social dialogue was not called into question at all. On the contrary, it was embraced as an element of participatory democracy and given an honourable mention in Article I-48 of the Constitution: The Union recognizes and promotes the role of social partners at its level, taking into account the diversity of national systems. It shall facilitate dialogue between the social partners, respecting their autonomy. The Tripartite Social Summit for Growth and Employment shall contribute to social dialogue.

In the Treaty of Lisbon, this text is moved to the Title on Social Policy (Article 152 TFEU) and it remains to be seen whether this recognition of social dialogue will prove fruitful. The European Trade Union Congress hopes that this provision may stimulate the European Commission to provide the European social partners more often with more information and consultation on a wider range of issues and may stimulate the EU Court of Justice to hear it on social matters.

The provisions in the European Treaties on the European Social Dialogue have been largely consolidated by the Treaty of Lisbon (Articles 154-155 TFEU), although here too a few minor adjustments have been made.

It has been added that the European Parliament shall be informed about the state of affairs with the agreements of the social partners (Article 155(2) TFEU), something which is already happening in practice. The European Parliament will continue to find it unsatisfactory that it is in fact outflanked if the social partners have reached an agreement that is implemented by a Directive. If that matter had been settled under Article 153 TFEU, the European Parliament-at least in cases falling under the ordinary legislative procedure-would have had the possibility of amending the contents of the measure and even of stopping it. In Directives under Article 155 TFEU, however, this is not possible.

Employers are naturally reluctant to contribute to an increase in ‘hard law’ in the labour market. Only two things can persuade them to make concessions: collective action and the threat of legislation. Collective action at European level still appears hardly possible. They rarely have to fear threats of legislation (‘bargaining in the shadow of the law’) because of the cumbersome decision-making procedures in the Council of Ministers.

Can we expect that the European Social Dialogue under the Treaty of Lisbon will produce more than was the case over the past 15 years of its existence?

THE SOCIAL POWERS AND THE LAWMAKING PROCESS IN SOCIAL MATTERS

The European Union is a supranational organisation, which may exercise only those powers expressly conferred on it (Article 5(2) TEU). In 2002-2003 at the European Convention, there were significant differences on the role of the European Union in the social field. Many argued that the EU had to be rather reticent in social affairs and to leave most initiatives to the Member States. There were also opposing voices that argued in favour of a stronger European social policy. The outcome of the fight was a draw. The Lisbon Treaty has indeed brought a number of smaller changes, but on the essential points it is the same old story.

The Articles on social policy in general as they read up until 1 December 2009 have been barely changed in the reformed European Treaties (now Articles 151-164 TFEU). They authorise the EU to promote the coordination of the social legislation of the Member States (Article 156 TFEU) and to issue its own European rules with regard to most aspects of social policy (Articles 153-155 TFEU).

The Maastricht Treaty (1991) had already divided the social field into one domain in which decisions by the Council of Ministers have to be adopted unanimously and another domain in which decisions are taken by qualified majority. The Treaty of Nice (2000) only went a small step further. It opened up the possibility that all decisions in the social field, except those relating to social security and social protection, in future could be taken by the Council of Ministers with a qualified majority if this Council decides that unanimously (the so-called ‘passarelle’ clause). However, such a decision was never taken. At the European Convention 2002-2003 the Presidium had proposed bringing almost the entire field of social policy under the normal legislative procedure (that is, qualified majority voting in the Council of Ministers and a co-legislative role for the European Parliament).This text was inexplicably deleted during one of the last sessions of the Convention and the final text of the Convention’s draft for a European Constitution contained exactly the same assignment of social issues partly to the unanimity procedure and partly to the procedure of qualified majority, as was already the case, as well as the same ‘passarelle’ clause as in the Treaty of Nice. During the 2003-2004 IGC, France tried to take that further step of the Presidium in the text of the Constitution, but that attempt was met with resistance from several countries, including the UK. Finally, also in the now reformed European Treaties, only half the social issues are assigned under the ordinary legislative procedure (qualified majority voting in the Council of Ministers) and the other half under the special legislative procedure (unanimity in the Council), exactly as it has been since the Maastricht Treaty plus the ‘passarelle’ from the Nice Treaty (Article 153(2), last sentence TFEU).

SUBSIDIARITY

A major hurdle for European social legislation may be the principle of subsidiarity. That principle requires that the Union, in areas which do not fall within its exclusive competence, shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. The principle has been in the European Treaties since 1992 and was formalised in a Protocol, but little has been done with it since then because it has always been perceived as vague. Some doubt whether it is at all able to erect a barrier against the mania for regulation in Brussels. However, especially under pressure from Germany, the importance of the subsidiarity principle has been strengthened in the reformed European Treaties. It now has a prominent place in the reformed European Treaties (Article 5(3) TEU). To meet the needs of regional authorities in Member States with strong ‘devolution’ of government (Germany, Spain, Austria, Belgium, Great Britain and so on), the regional and local dimensions are included in the definition of subsidiarity. New also is the enforcement system as set out in Protocol No 2 on Proportionality and Subsidiarity. It is a kind of ‘yellow card’ or ‘early warning system’. National parliaments now have eight weeks to draw a ‘yellow card’. If a simple majority of national parliaments considers that a proposal by the European Commission violates the subsidiarity principle, it should be reconsidered. Moreover, the EU Council of Ministers (with a 55 per cent majority) and the European Parliament (by a simple majority) may decide to halt further consideration of the proposal. Finally, the Committee of the Regions and the national parliaments through the locus standi of the Member States may approach the ECJ on the applicability of this principle.

Although this procedure has certainly strengthened the relevance of the subsidiarity principle compared with the situation that existed until 1 December 2009.

THE COORDINATION OF ECONOMIC POLICIES

In the Treaty of Lisbon virtually nothing has changed in the Articles on the coordination of national employment policy as they previously existed and so in this area the ‘guidelines’ within the framework of which policies can be made (Article 148(2) TFEU) remain as non-binding (‘soft law’) as before (Articles 2(3), 5(2) and 5(3) and 145-150 TFEU).

The texts on social cohesion, too, are virtually unchanged (Articles 174-178 TFEU). They have been decorated with fine words,50 but with no extra money or power.

In the same vein, the Treaty of Lisbon has codified the views on the place of Europe in the world as they stood in 2002-2003. In that period most Member States were absolutely against forceful economic governance on the part of the EU. The competences in this area are even weaker than in the social area. In the meantime, first the banks and then entire Member States have been tormented by the financial crisis. This requires more effective economic governance. In the absence of this the financial assistance to Greece, Ireland, Romania and Portugal has been made subject to strict conditions, including cuts in wages, social subsidies, pension systems and so on. Financial discipline is imposed at the expense of the wider, social objectives enshrined in the Treaties.

This makes the following question (already mentioned) a matter of urgency: do countries retain the freedom to enact or maintain labour laws which are more favourable for the workers than the rules of the European Union? Earlier it was written that the EU and the Member States have shared competence in social matters. In practice, this is so. European social law and social policy are still modest in nature, and that may be regarded as an essential part of the European Social Model. However, there is still so much room left for national social law and social policy because-as indicated above-the EU has used so little of its social competence, and where it has done so it often did it with soft law. This much room is also preserved because of the rule of thumb that, even in those areas where hard EU social law is enacted, the Member States retained leeway to enact or maintain rules that are more favourable to workers. This idea is often expressed in the Preamble and the final Articles of the social law Directives of the EU. However, the Court of Justice in the aforementioned Laval, Rüffert and Commission v Luxembourg cases has determined that the EU standards of the Posted Workers Directive are not only a minimum, but a maximum. This has cast doubt on whether the aforementioned rule of thumb of EU law is still functional.

This principle of the more favourable rule has been expressly stated in the Treaties for a number of years and returns unchanged in the European Treaties with the revision by the Treaty of Lisbon (Article 153(4), second indent TFEU). Some say that it applies only to the standards of the social policy of the EU and not to the standards of freedom of movement, on which the Posted Workers Directive is founded. This interpretation would be analogous to the American doctrine of ‘pre-emption’ which considers some standards as both minimum and maximum. However, this too narrow view is to be avoided on the basis of the Treaty of Lisbon seen in its historical context. The entire operation of the ‘European Constitution’ was originally set up to stop the excessive drift of the competences of the Member States to Europe. This has resulted in a reformulation of the allocation of competences, a strengthening of the principle of subsidiarity and the introduction of provisions useful for the defence of social policy. All this suggests that the ‘principle of the more favourable rule’ in the relationship between national and European social law is broadly applicable, and not only with regard to measures based on Article TFEU 153 (ex-Article 137 EC). In short, this principle of the more favourable rule is well anchored in the Lisbon Treaty. However, will this convince the Court?

The first ruling by the Court in this area after the entry into force of the Treaty of Lisbon, Commission v Germany, is not reassuring. The priority of the rights of the market over fundamental social rights was repeated. For the European Trade Union Confederation this was a reason to reiterate its call that at the next amendment of the European Treaties a ‘social progress clause’ or a ‘social progress protocol’ should be included, guaranteeing a better balance between the laws of the market and the social rights.

SERVICES OF GENERAL INTEREST

The questionable character of the operation of the laws of the market and free competition has also become quite apparent in the area of services of general economic interest (postal services, public transport, waste management, energy, health care and so on). Already in the Treaty of Rome of 1957 it was determined that these services would be subject to the rules of the free market, but only ‘in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them’.The Treaty of Amsterdam sang the praises of ‘the place occupied by services of general economic interest in the shared values of the Union’ (Article 16 TEC) and the Charter of Fundamental Rights called the access to these services a fundamental right. This generous recognition of services of general economic interest has been fully maintained in the Treaty of Lisbon (Article 14 TEU and Article 106(2) TFEU) along with the insertion of some not insignificant additions.

The first addition is in the final sentence of Article 14 TEU, which at the insistence of France provides that ‘the European Parliament and the Council, acting by means of regulations … shall establish these principles and set these conditions’. Apparently, this was not enough to reassure the citizens of Europe with regard to their worries about the dismantling of postal services and the breakup of railway, energy and other services. The French have always been very critical and this point was certainly one of the reasons for the French ‘no’ to the European Constitution. At the IGC 2007 not only France but also the Netherlands revisited this item. Together they managed to achieve that via the Lisbon Treaty Protocol No 26 has been added to the European Treaties, specifying which shared values of the Union in particular are meant in Article 14 TFEU (Article 1) and guaranteeing that the provisions of the Treaties do not affect in any way the competence of Member States to provide, commission and organise non-economic services of general interest (Article 2).

The second provision is not very helpful as, according to the case law of the EU Court of Justice, most public services are economic services and therefore remain subject to all the rules of the internal market, state aid and competition, whatever precious values they may represent. Thus, the drive of the European Commission to split up our railways, privatise our electricity and liberalise the financial markets, and so on, can just continue.