(7) The Lisbon Treaty
Values and Objectives
Article 2 TEU on the Union’s values is not only a political and symbolic statement. It has concrete legal effects.1
To date, relatively little consideration has been given to the added value of the Treaty establishing a Constitution for Europe or the Lisbon Treaty with regard to what is generally called the ‘social dimension’ of the European Union.2 It needs to be viewed in conjunction with the two earlier parts of the Constitution and, at present, with Articles 2, 3 and 6 of the TEU. These provisions deal with the values and objectives of the Union and define how the Union relates to fundamental rights. The question is whether this new way of framing largely unchanged competences puts the social dimension of the European Union in a different light. In this contribution, I want to explore whether the distinction, as well as the relation between values and objectives, might provoke a shift in the ‘balance’ between fundamental (social) rights and fundamental economic freedoms.
FROM THE TREATY ON THE EUROPEAN UNION (MAASTRICHT VERSION, 1992) TO THE LISBON TREATY (2007): VALUES SPEAKING EVER LOUDER THAN OBJECTIVES
Ever since the Treaty on the European Union (Maastricht version, 1992), ‘objectives’ have been put forward.3 The objectives concerned were, inter alia, to promote economic and social progress which is balanced and sustainable, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of this Treaty.
Values
The Treaty on the European Union (Maastricht version) did not refer explicitly to ‘values’. Many recitals in the Preamble of the Treaty did refer to ‘principles’ which have been qualified as ‘values’ in subsequent versions of the Treaty on the European Union.4 These principles have been ‘confirmed’ and qualified as ‘desirable’.
It is worth considering that the creation of a common or internal market and a monetary union is not approached as a primary objective in Article B of the TEU (Maastricht). The creation of a common or internal market is a means to reach a more far-reaching objective, namely balanced and sustainable economic and social progress. This instrumental approach to the establishment of a common market as a means to an end is mirrored by ex-Article 2 TEC.5
The notion of ‘values’ appeared as late as the adoption of the Constitutional Treaty (CT). The distinction between ‘values’, as opposed to 'objectives', was made abundantly clear by the use of rubricae (the headings underneath the Articles) and by the fact that ‘values’ were consecrated prior to the establishment of objectives. In the Lisbon version of the TEU, these ’rubricae’ have disappeared and the wording of Article 3 as such ceases to refer expressis verbis to ‘objectives’. As a result, the Lisbon version of the TEU now explicitly refers to values in the body of the common provisions and does not make any explicit reference to ‘objectives’, either in the body or in the Title of the Common Provisions. This evolution is an inversion of the initial situation.
The Constitutional Treaty refers to values which were already referred to in the Preamble of the former TEU: ‘liberty’, ‘democracy’, ‘respect for human rights and fundamental freedoms’ and ‘respect for the rule of law’. Furthermore, the Constitutional Treaty and the Lisbon Treaty innovate by adding other values. These are respected for human dignity, equality and respect for the rights of persons belonging to minorities. Furthermore, both the Constitutional and the Lisbon Treaty indicate that ‘These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’. During the Convention, the Working Group XI ‘Social Europe’6 did not manage to get ‘social justice’ inserted in that list, although the idea of ‘social justice’ was mentioned as one of the European Union’s objectives from the very first draft. The final version of the Constitution, as well as the Lisbon Treaty, do contain a reference to the principle of equality, which the Group had advocated,7 but its calls for a reference to gender equality were not heeded by the Convention. The Intergovernmental Conference (IGC) altered this Article to accommodate the Group’s wishes.8
The structure of Article 2 is enigmatic. Prima facie, it creates a contrast between the high ranking ‘values’ on which the European Union is explicitly founded and other concepts (among which solidarity) which are used to describe the qualities of a (civilised) society common to the Member States. In my view, the value of ‘solidarity’ is of the same nature and quality as the other values mentioned. For this reason, it has been integrated into this fundamental provision. Therefore, it would be erroneous to disqualify ‘solidarity’ as a value within the meaning of Article 2 TEU. Such an interpretation runs counter to the fact that the Preamble of the Charter of Fundamental Rights of the European Union (CFREU) qualifies ‘human dignity, freedom, equality and solidarity’ as the ‘indivisible and universal values’ on which the European Union is founded. Furthermore, solidarity is intertwined with the fundamental rights rubricated in the CFREU under the heading of ‘Solidarity’. Hence, it would run counter to ‘respect for human rights’ within the meaning of Article 2 TEU not to value solidarity. Last but not least, the Oxford English Dictionary defines a value in terms of desirability. The Preamble of the TEU describes the deepening of the solidarity between the peoples of the European Union as the ultimate object of desire. In this respect, it can be argued that solidarity is a value which is at the core of the EU and hence an important tool for interpretation.9
Objectives
As far as objectives are concerned, both the Constitutional Treaty and the Lisbon Treaty have underlined objectives which are extremely relevant for the development of EU labour law. These are ‘a highly competitive social market economy, aiming at full employment and social progress’, ‘social exclusion and discrimination’, the promotion of ‘social justice and protection’, ‘equality between women and men’ and ‘solidarity between generations’.
From the very first draft of the Constitutional Treaty the Union’s objectives included ‘full employment’, a step up from the ‘high level of employment’ referred to in the text of the TEU (Maastricht). The ‘full employment’ approach is very much in line with the equally maximalist ILO Declaration of Philadelphia.10 It is regrettable that the ‘right to work’ (le droit au travail) was not included in the CFREU, which recognises the ‘right to engage in work’ (le droit de travail) as well as ‘the freedom to choose an occupation’. The ‘right to work’ and the ‘right to engage in work’ stem from two very different traditions. The right to work implies a relationship between a subject and an object. The notion ‘work’ (travail) in such a formula does not refer to ‘workforce’, but to a ‘job opportunity’. The CFREU merely recognises a marginal aspect of this basic right, which is the right to have access to the labour market.11 The latter is just an aspect of the freedom to work (liberté du travail). The emphasis is on the development of innate human capital. Freedom to work merely implies that the authorities refrain from action in order to allow citizens to work or not to work. The workforce is inseparable from the individual. It is not an external job opportunity. The inescapable impression is that the right to engage in employment is being used as a sop to appease advocates of the right to work.
The wording of Article III-209 CT (cf Article 151 TFEU) seems equally off-balance, with this ‘preamble’ to the section on ‘Social Policy’ still referring to ‘high employment’. The same applies to Article III-117 CT (cf Article 9 TFEU).
The Working Group XI had called for efficient and high-quality social services and services of general interest to be included among the objectives,12 probably because it feared that such services would come under pressure from the common market. The proposal was not accepted. The provision related to objectives does not refer only to social objectives, but to the establishment of an internal market. As evidenced by the infamous Laval Quartet,13 economic objectives can clash with social objectives. Since economic objectives are intrinsically linked to fundamental freedoms, whereas social objectives are related to fundamental rights, these clashes end up affecting the relationship between fundamental freedoms and fundamental rights.
The question arises whether Article 3 TEU provides a clue to handling these clashes. In such an approach, the relationship between objectives is studied in isolation of other provisions of the TEU. The semantics of the isolated provision urge the interpreter to ‘balance’ these objectives. Thus, instead of referring to a market economy, the provision refers to a social market economy. Furthermore, the idea of economic, social and territorial cohesion is expressed, and notions of sustainable development and balanced economic growth are highlighted.
The idea of a balanced model which is being suggested does not shield social objectives, let alone the domestic social policies of the Member States against competing for economic objectives and the economic freedoms consecrated by the TEU and TFEU. The outcome of the balance exercise is highly unpredictable.
Priority of Values in Relation to Objectives
In my view, a more ‘holistic’ reflection on the relationship between values and objectives could be more helpful to safeguard social objectives as well as workers’ rights. First, there is no reason to suggest that values as such need to be sacrificed to the objectives of the Union. On the contrary, Article 3(1) TEU provides for a hierarchical order between values as primary and other objectives as secondary.14 Furthermore, a lot of the objectives listed in Article 3 can be conceptually related to the values enshrined in Article 2 TEU. Thus, the references to values such as non-discrimination, freedom, justice and solidarity, in fact, reappear in Article 3 TEU. In my view, as evidenced by the structure of the Constitutional Treaty, the values are intertwined with the issue of citizenship, whereas the objectives relate to the Union. Taking a rational approach, citizenship rights cannot be sacrificed to the objectives of an organisation.15 In fact, citizenship-hence, the values on which the Union is based-constitutes a limit on the objectives of the Union and on the exercise of its powers.
The fact that values speak louder than objectives is also evidenced by the fact that the provision related to values, in contrast to the one related to objectives, is being sanctioned. As evidenced by Article 7 TEU, Member States are required to respect in foro interno the values enshrined in Article 2 TEU. This obligation is monitored by a preventive procedure in case of a ‘clear risk of a serious breach by a Member State’ and it is sanctioned in case of a ‘serious and persistent breach’ by a Member State. The fact that some of the values can be sanctioned if a Member State does not respect them in foro interno contrasts with the way in which Member States are required to respect the ‘fundamental rights’ enshrined in the CFREU. According to Article 51 CFREU, the latter is applicable only to the Member States in implementing Union law. Although the objectives are not sanctioned as such, Article 9 TFEU does contain some ‘general’ or ‘horizontal’ clauses which urge the Union (that is, not the Member States in foro interno) to take some of these objectives into account. Thus, particular attention needs to be paid to the promotion of a high level of employment, the guarantees of adequate social protection, the fight against social exclusion and the aim of promoting equality between men and women and combating discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Recognising that values do speak louder than objectives might urge the Court of Justice of the European Union to distinguish between them when it has to consider genuine human rights, on the one hand, and fundamental economic freedoms, on the other. In the Schmidberger,16 Laval and Viking17 cases the Court tends to refer in such a situation to conflicting ‘interests’ which have to be ‘balanced’. Such a comprehensive qualification of interests as encompassing both human rights and fundamental economic freedoms de values human rights. It disrespects the quintessential and qualitative distinction between the values underlying human rights and the objectives underlying fundamental economic freedoms. Although the CFREU has indeed upgraded some fundamental economic freedoms to the status of ‘fundamental rights’, a distinction could be made between human rights within the meaning of Article 2 TEU and fundamental rights within the meaning of the CFREU. In sum, in interpreting EU Directives in the area of Social Policy the Court should take account of the constitutional values underlying these instruments, instead of interpreting them in light of the conflicting economic objectives of the European Union.
1.J-C Piris, The Lisbon Treaty (Cambridge: Cambridge University Press, 2010) p 71.
2. See, inter alia, B Bercusson, European Labour Law, 2nd edn (Cambridge: Cambridge University Press, 2009) 217–55 and 715–37; M de Vos and B de Wolf, ‘The Treaty of Lisbon and social policy: a tempest in a teapot?’ (2010) 22 EELC; F Dorssemont, ‘La dimension sociale de l’Union européenne après la Constitution’ Semaine sociale Lamy, Supplément ‘Comment réussir une Europe élargie’, Semaine Sociale Lamy, 25 April 2005 89–95; ATJM Jacobs, ‘The social Janus head of the European Union: social market economy versus ultraliberal policies’ in J Wouters, L Verhey and P Kijver (eds), European Constitutionalism beyond Lisbon (Antwerp: Intersentia, 2009) 111–28; J Kenner, ‘The Constitution that never was: is there anything worth salvaging from the wreckage?’ (2005) Industrial Relations Journal 541–67; M Schmitt, ‘La dimension sociale du traité de Lisbonne’ (2010) Droit social 682–95; I Schoemann, ‘Le Traité de Lisbonne: L’Europe sera-t-elle enfin plus sociale?’ (2010) 1 ETUI Policy Brief and P Syrpis, ‘The Treaty of Lisbon: Much Ado … But About What?’ (2008) 37 Industrial Law Journal 219–35.
3. See Article A TEU (Maastricht).
4. ‘[C]onfirming their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law, desiring to deepen the solidarity between their peoples while respecting their history, their culture and their traditions, desiring to enhance further the democratic and efficient functioning of the institutions so as to enable them better to carry out, within a single institutional framework, the tasks entrusted to them’ (italics added).
5. Article 2 TEC: ‘The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States’.
6. In order to look at the main problem areas of the European Constitution in detail 10 working groups were set up within the Convention, very much in line with the problem areas identified in the Laeken conclusions. The question of the social dimension did not feature in those conclusions, and was not seen as sufficiently important to warrant such a focus group. No significant attention is given to the issue in either the terms of reference or the activities of the working groups. It was only at a very late stage in the work of the Convention that Working Group XI ‘Social Europe’ was set up. The Working Group on Economic Governance and a few members of the Convention had pressed for a detailed discussion of ‘social questions’, or ‘Social Europe’ at a plenary session. What happened at that session led the President, Giscard d’Estaing, to announce the setting up of Working Group XI ‘Social Europe’.
7. Article I-2 CT mentions the prohibition of discrimination. The Working Group referred
to ‘equality, particularly between men and women’.
8. CIG 81/04, p 7.
9. On this, see Veneziani (ch 5 in this volume).
10. See, inter alia, the Declaration of Philadelphia. Although Article 1 ESC recognises ‘a right to work’, this Article formulates a slightly more nuanced ambition of the ‘the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment’.
11. Article 15(1) and (2) Charter of Fundamental Rights of the European Union (CFREU).
12 See on the same subject the speech by E Gabaglio on 24–25 June 2002 and CONV
799/03. See also the attention given to these services in the CFREU Chapter IV, Article 36. See also Article III-122 CT. The IGC amended this Article in order to safeguard the Member States’ independence with regard to the establishment of such services. The services did not feature in Section I of the Draft Constitution.
13. Laval Quartet: Case C-438/05 ITF v Viking Line ABP [2007] ECR I-10779; Case C-341/05 Laval v Svenska Byggnadsarbetareförbundet [2007] ECR I-11767; Case C–346/06 Dirk Rüffert v Land Niedersachsen [2008] ECR I-1989 and Case C-319/06 Commission v Luxembourg [2007] ECR I-4323.
14. See: ‘The Union’s aim is to promote … its values’.
15. Judged otherwise, social justice risks being sacrificed to what Supiot has called ‘la marché total’. See: A Supiot, L’esprit de Philadelphie (Paris: Seuil, 2010) 179.
16. Case C-112/00 Schmidberger [2003] ECR I-5659.
17. See above (n 13).
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