EXECUTIVE SUMMARY OF A STUDY FOR THE CONSTITUTIONAL AFFAIRS COMMITTEE OF THE EUROPEAN PARLIAMENT (FULL VERSION AVAILABLE HERE )
by Olivier DE SCHUTTER
The European Social Charter, initially adopted in 1961 within the framework of the Council of Europe as the counterpart to the European Convention on Human Rights, has gained increased relevance and visibility since its ‘revitalization’ in the 1990s, particularly with the entry into force of the Additional Protocol on Collective Complaints in 1998 which, by the end of 2015, 14 EU Member States had accepted. The interactions with the EU have also become more common: EU secondary legislation inspired a number of provisions that were included in the 1988 Additional Protocol to the European Social Charter and in the 1996 Revised European Social Charter, which updated and extended the list of guarantees included in the original instrument; moreover, the European Committee of Social Rights (ECSR), the expert body tasked with supervising compliance with the European Social Charter, routinely is led to assess whether national measures implementing EU law comply with the requirements of the European Social Charter.
It is therefore surprising that even the more recent developments concerning the protection of fundamental rights in the EU legal order have largely ignored the European Social Charter. Although the European Social Charter is referred to in the EU treaties, the Convention which drafted the EU Charter of Fundamental Rights in 1999-2000 borrowed only selectively from the Council of Europe Social Charter as a source of inspiration for its social provisions. The impact assessments accompanying legislative proposals of the European Commission, although they refer to the EU Charter of Fundamental Rights since 2005, do not refer directly to the European Social Charter. The Court of Justice of the European Union has not compensated for this: although it has occasionally referred to the European Social Charter as providing guidance for the interpretation of EU law, it has until now refused to align the European Social Charter with that of the European Convention on Human Rights as a source of inspiration for the development of fundamental rights as general principles of law that it ensures respect for, in accordance with Article 6(3) of the EU Treaty.
This is unsustainable. The current lack of coordination creates the risk of conflicting obligations imposed on the EU Member States, respectively as members of the EU and as States parties to the European Social Charter: for instance, the ECSR found the legislative reforms introduced by Sweden in order to comply with the 2007 Laval decision of the Court of Justice to be in violation with the requirements of the European Social Charter. The failure to take into account the European Social Charter is also the source of tensions that result from the prescriptions addressed to the Euro Area Member States, under the European semester or for Euro Area Member States under financial assistance: thus, the ECSR has found that a number of measures adopted by Greece following the bailouts of 2010 and 2012 were in violation of that country’s undertakings under the European Social Charter.
In order to move beyond the current impasse, four options are explored. First, the Court of Justice could acknowledge more explicitly the role of the European Social Charter in the development of fundamental rights in the EU legal order. At a minimum, it could do so by interepreting the provisions of the EU Charter of Fundamental Rights that correspond to rights of the European Social Charter in accordance with the interpretation given to this latter instrument by the European Committee of Social Rights, which is specifically tasked with the task of assessing from a legal viewpoint the legislation and policies of the States parties. In addition however, the Court of Justice could seek inspiration from the Charter to develop the fundamental rights that are included among the general principles of EU law, thus aligning the status of the European Social Charter with that of the European Convention on Human Rights. As the Court itself has acknowledged, the European Social Charter has been ratified by all EU Member States (whether in its original version of 1961 or in its revised form of 1996), and thus provides a particularly authoritative list of social rights that are consensual across the EU-28.
Second, the European Social Charter could play a greater role in impact assessments accompanying the legislative proposals of the European Commission: such impact assessments could include explicit references to the European Social Charter in the guidelines for impact assessments of legislative proposals prepared by the European Commission. This would go a long way towards ensuring that EU law shall develop in a way that is fully consistent with the obligations of the member States in international law, thus reducing the risk that they may be faced with conflicting international obligations. It would also fulfil the mandate of the Treaty on the Functioning of the European Union, which commits the EU to ‘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’ in defining and implementing its policies and activities (art. 9 TFEU).
Third, the EU Member States could be encouraged to align the range of their undertakings under the European Social Charter, in order to improve the uniform application of EU law. For the moment, the à la carte system of the European Social Charter results in a situation in which the undertakings of the EU Member States under the Charter remain highly uneven, as they have not all accepted to be bound by the same provisions of the Charter. The European Commission could list the provisions that are most closely connected with EU secondary legislation, and which, if accepted by all EU Member States, would strengthen the effectiveness and the uniform application of EU law.
Finally, the process of accession of the EU to the European Social Charter could be initiated. Such accession has been envisaged on various occasions, ever since the “Spinelli” Treaty on the European Union of 1984, and the European Parliament has unequivocally expressed itself in favor. Considering the large number of areas covered by the European Social Charter in which the EU has been attributed certain powers by the Member States, as well as the potential for further legislative instruments to be adopted in these areas, the EU could accede to the European Social Charter on the basis of Article 216(1) TFEU: the relationship of the EU to this instrument would be very similar to that it has developed with the UN Convention on the Rights of Persons with Disabilities, which the EU acceded to in 2009. Moreover, the objections raised by the Court of Justice of the European Union in Opinion 2/13 concerning the accession of the Union to the European Convention on Human Rights would not apply to the accession to the European Social Charter, at least if such accession does not extend to the Union joining the mechanism provided for by the Additional Protocol on Collective Complaints. Even if it were envisaged to allow the Union to join that Protocol, many of the concerns raised by the Court of Justice in Opinion 2/13, concerning the autonomy and the specific characteristics of EU law, either would not apply at all (due to the differences between the control mechanism established by the ECHR and the collective complaints mechanism), or could be met by the insertion of appropriate stipulations in the agreement providing for the accession of the Union to the European Social Charter. ….(continue here)