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 ten 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 a 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 Treaty of Lisbon, amending the Treaty on European Union and the Treaty establishing the European Community, was signed on 13 December 2007 and came into force on 1 December 2009. The section entitled ‘Treaty on the functioning of the European Union’ contains the following new provision, widely referred to as the ‘Horizontal Social Clause’: Article 9
In defining and implementing its policies and activities, 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. The first commentators on the social dimension of the Treaty, when they do not lament the inbuilt ineffectiveness of this Article, given the extremely limited extension of the EU’s social competences,1 accord it no more than marginal significance.2 As related by the European Commission, the story of the social clause is a tale of enshrinement in the Treaty of a practice of ‘intelligent regulation’ developed by the Commission itself since 2002.3 It was indeed in that year that the Commission put in place an integrated Impact Assessment (IA) procedure designed to examine the economic, social and environmental effects of its policy proposals. This procedure was subsequently applied in 2005 in the context of the European employment strategy and the Lisbon strategy. In 2009, following an external assessment of the IA, the guidelines for intelligent regulation were amended,4 and the IA was extended to cover all legislative initiatives. The Lisbon Treaty came into force in the same year. In 2010 the Belgian Presidency launched a debate on strengthening the social dimension of the IA in the context of the Horizontal Social Clause. The Commission, taking the view that IA already suffices to meet its new obligation under the Lisbon Treaty, henceforth stresses the need for the Member States themselves to adopt appropriate processes geared to similar ends.5
Over and above this narrative couched in a technocratic register inspired by private management practices,6 it is nonetheless important to point out that the social clause is rooted in a fundamentally progressive vision of the purpose of public policies. Such a vision finds expression, for example, in the theoretical works of Amartya Sen and his practical contribution, within the United Nations framework, to a ‘human development index’; or in the highly instructive pursuit, since 1995, of gender mainstreaming within both the United Nations and the European Union. What the Horizontal Social Clause actually asserts is the primacy to be accorded to social goals in EU activities and policy-making, and this includes those fields where ‘hard’ economic considerations appear to reign supreme. The new provision is worded so as to apply to all the European institutions (Parliament, Council, Court of Justice,7 Commission, committees involved in the Lisbon or Europe 2020 process,8 etc), as well as to the Member States. Each of these actors is henceforth required to ensure that the clause is appropriately implemented within the sphere of its own responsibilities. In the field of hard law, the new clause protects from annexation by the laws of economics several fields of social action of quintessential significance in relation to what might be called the ‘European social model’.9 In the field of soft law, the Horizontal Social Clause could appropriately handled, allow the Lisbon and Europe 2020 process to become relatively exempt from application of the economic convergence criteria; it could even entail subjecting the various economic fields to the test of their compatibility with the social purposes of the Treaty as enshrined in the new clause. It is, however, up to the European institutions and social actors to recall and draw attention to the demands stemming from the new provision and to propose appropriate institutional mechanisms that will ensure its effectiveness. Interestingly enough, the Social Protection Committee lost no time in taking the measure of the potential offered by the Horizontal Social Clause.10 In theory, therefore, it is possible, on the basis of Article 9 of the TFEU, to supply the European Social Question—on the European as much as the national level—with answers that transcend the traditional scope of social policy implementation and social law. This is true whether one speaks of the personal and material scope and targets of social policies, or of the instruments, actors and government levels whereby, by whom and at which they are implemented. In order to indicate how such an approach might be implemented, I shall base my considerations on the Horizontal Social Clause’s ‘elder sister’, namely, the gender mainstreaming clause, introduced by the Amsterdam Treaty, in order (1) to show that it is indeed possible, under certain conditions, to develop horizontal policies on the scale of the EU, and (2) to identify the potential benefits and likely pitfalls associated with the horizontal social clause in light of the experience of the gender mainstreaming clause. From a legal standpoint, three arguments may be put forward to justify the comparison with gender mainstreaming. The first argument is textual: the wording of the Horizontal Social Clause is mutatis mutandis, very similar to that of the gender mainstreaming clause. The second argument is contextual: the Horizontal Social Clause was introduced into the Treaty just after the gender mainstreaming clause and just before the environmental clause. The third argument pertains to a common articulated structure which, in these fields, establishes links between the law-a formal guarantee of fundamental rights-and public policies for the achievement of substantive goals (genuine equality, social justice). This third argument deserves further development given its extreme importance for understanding the function of the Horizontal Social Clause within the overall rationale of the reforms introduced by the Lisbon Treaty. Gender mainstreaming was conceived and came into being as a result of the observed incapacity of ‘hard’ law to ensure substantive equality between men and women. Once the effectiveness of law informally eliminating discrimination had been demonstrated, it was necessary to implement a strategy suitable for promoting the material equality of situations. Accordingly, the United Nations, in 1995, adopted the Beijing strategy to complement the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW-1979) and a few years later, a gender mainstreaming strategy was enshrined in the Amsterdam Treaty to complement the provisions of European law that prohibited discrimination between women and men. While individuals may claim effective rights only under Article 157 TFEU (on the prohibition of discrimination) and its derived Directives, the gender mainstreaming clause requires the European institutions and the Member States to assign egalitarian aims to all their activities and policies. Similarly, the Horizontal Social Clause can be understood only when viewed in conjunction with the new Treaty provisions that, on the one hand, enshrine the European Charter of Fundamental Rights, and, on the other, oblige the EU to accede to the European Convention on Human Rights (Article 6(2) TEU).11 These latter provisions recognise formal rights-to which individuals can or will be entitled to lay claim in the law courts-whereas the Horizontal Social Clause requires the EU and its Member States to assess the consequences of their activities and policies from the standpoint of the effective realization of certain of these rights.
1 B De Witte, A Trechsel, D Damjanovic, E Elquist, J Hien and P Ponzano, ‘Legislating After Lisbon, New Opportunities for the European Parliament’ (EUDO Observatory on Institutional Changes and Reforms (2010).
2 See, for example, I Schömann, ‘The Lisbon Treaty: a more social Europe at last?’ (2010) 1 ETUI Policy Brief.
3 See the European Commission site: ec.europa.eu/enterprise/policies/better-regulation/
impact-assessment/index_en.htm, and Belgian Presidency of the European Union, background paper: The horizontal social clause and social mainstreaming in the EU-The Horizontal Social Clause as a call for intensified cooperation and exchange of knowledge through the Commission’s Impact Assessment (3ème Forum sur les Services sociaux d’intérêt general (SSIG), Brussels, Belgian Federal Public Service Social Security, 26–27 October 2010): www.socialsecurity.fgov.be/eu/docs/agenda/26-27_10_10_sia_en.pdf).
4 European Commission (2009), Impact Assessment Guidelines que l’on peut trouver sur le site: ec.europa.eu/governance/impact/commission_guidelines/docs/iag_2009_en.pdf.
5 See M Kühnemund, ‘Social impact assessment as a tool for mainstreaming social inclusion and social protection concerns in public policy in EU Member States’ in E Marlier and D Natali (eds), Background document prepared for the international conference on EU coordination in the social field in the context of Europe 2020: Looking back and building the future, organised by the Belgian Presidency of the Council of the European Union with the support of the European Commission (14–15 September 2010, La Hulpe, Belgium) pp 68–75.
6 See on the Commission website: Social impact assessment, background: ec.europa.eu/
7 While it may indeed not be possible to deduce from it any direct effect, either horizontal or vertical-which means that an individual cannot derive rights from this clause and demand their implementation, either by a Member State or by another individual-the Court of Justice should in principle refer to it in the framework of its classical teleological interpretation method.
8 Thus, at the request of the Belgian EU Presidency, the EPSCO Council has already begun to give thought to how to step up social mainstreaming in the wake of the horizontal social clause. See: www.eutrio.be/press release/informal-meeting-epsco-council-social-security-and social-inclusion.
9 For the same purpose, it is also possible to refer to the EU Charter of Fundamental Rights or to future ratification by the EU of the European Convention on Human Rights.
10 Contribution by the Social Protection Committee finalised at its meeting on 18 May 2010 and presented in the run-up to the EPSCO Council meeting on 7 and 8 June 2010, Council of the European Union, memorandum, Brussels, 21 May 2010 (27.05) (OR. en) 9964/10SOC 358.
11 See, for example, Schömann (n 2). Official talks on the European Union’s accession to the ECHR started on 7 July 2010.