by Zane Rasnača
Today on 17 November 2017 the European Parliament, the Council and the European Commission will proclaim the European Pillar of Social Rights (EPSR). Accused of going much too far by some and for falling disappointingly short by others the EPSR has caused a stir. This turmoil, however, has mainly been political, and the EPSR has received comparatively little attention from EU lawyers. Probably duly so because the EPSR, despite its political salience, is a soft law instrument without legally binding force and such instruments are rarely noticed.
Here, however, I argue that while its overall impact on the EU acquis in all likeliness will be underwhelming, the EPSR nevertheless deserves a closer look, especially when the context of the initiative and the CJEU’s case law on similar soft law measures are considered. A closer look also allows one to find at least some hope concerning its enforceability. The future of the EPSR depends largely on how it will be treated by the stakeholders, and here the judicial arenas should be activated if there is no meaningful enforcement actions following from the EU political actors and the member states.
What exactly is the EPSR? (Explaining the EPSR)
On 26 April 2017 the Commission issued the so-called “Pillar package” consisting of about 17 documents. Despite the impressive volume, the key documents constituting ‘the EPSR’ were only two – a recommendation and a draft proclamation, both almost identical in their content and both setting out 20 principles covering a wide range of areas of social policy and labour law.
Content-wise the principles included in the EPSR are divided into three chapters:
- Equal opportunities and access to the labour market;
- Fair working conditions;
- Social protection and inclusion.
The principles cover a wide set of social policy areas and range from matters already extensively covered by the EU social acquis like gender equality and health and safety at work to matters currently beyond the EU’s (legislative) competence like the minimum income, wages and assistance for the homeless. Some of the principles add completely new ‘rights’ to the Union system: ‘the right to adequate minimum income benefits’ (principle 14), ‘the right to fair wages that provide for a decent standard of living’ (principle 6(a)) and the rights to adequate social protection for the self-employed (principle 12). Others reiterate rights long-existing within the EU realm, for example, the right to equal pay for work of equal value for men and women (principle 2(b)), and the right to information and consultation for workers in case of transfer or restructuring of undertakings (principle 8(b)). Finally, some ‘social’ aspects traditionally regulated by EU law have been left outside the EPSR – e.g. the right to maternity leave, the right to limited working time and also the rights of migrating workers are absent.
Overall, when considered from a social convergence perspective, the content of individual principles is rather protective and on occasion offers a higher level of protection than that currently available under EU law or expands the personal scope beyond the current status quo. Therefore, if enforced, these principles might improve the level of protection for certain groups of people (workers, unemployed, self-employed and others) across the Union. From this aspect the initiative could be praised.
Unfortunately, as socially-oriented as the content is, the legal form of the EPSR is rather disappointing.
First, the recommendation adopted by the Commission under Article 292 TFEU has no binding force (Article 288 TFEU). Recommendations are often adopted in areas in which the EU has no legislative powers and are soft law instruments of ‘indirect action’ intended to prepare the next stages of development, and especially to steer legislation at national level.[i] However, in practice, they might often be treated as irrelevant. A good example of unsatisfying results is the implementation report on 2013 Recommendation on investing in children included in the ‘Pillar package’.
Second, the proclamation (endorsed by the European Commission, the European Parliament and the Council today) equally lacks legally binding force.[ii] Although not explicitly foreseen in the Treaties, proclamations have been adopted before. The EU Charter of Fundamental Rights (Charter) is the most eminent example, and was invoked as the precedent for the EPSR by the Commission itself. Essentially the proclamation is an expression of political commitment by the proclaiming actors, in this case the three EU institutions, and expresses political commitment to endorse the EPSR’s principles.
Enforcing the EPSR?
Not excluding other options, there are at least three aspects worth emphasising when it comes to the enforcement of the EPSR. First, the routes of enforcement envisioned by the authors of the EPSR are seemingly weak. Secondly, despite this weakness, the case law of the CJEU provides some way out of this problem and sheds some light on the angles from which the EPSR could gain a harder edge. Thirdly, mostly due to the broad range of issues covered by the EPSR, there is a good chance that sooner or later its principles will be invoked before the national and EU courts. Such instances will reveal the Pillar’s actual judicial significance.
Although the Commission invoked the Charter as the precedent for the EPSR’s proclamation, there does not seem to be any intention for the latter to follow the path of the former and to be incorporated into the Treaties at a later stage. Instead even a provision like Article 51(1) Charter that would clearly designate a duty for the EU institutions and the member states to follow the EPSR’s principles and obey its rights is visibly missing. Instead what we find in the EPSR is a clear statement that for the Pillar’s principles and rights to be legally enforceable, they first require dedicated measures or legislation to be adopted at the appropriate level (recital 14). The preamble of the EPSR also aims to limit enforcement further in various ways, for example, by stating that:
- the EPSR should be implemented taking due account of different socio-economic environments (recital 17);
- the EPSR at the EU level has to be implemented within the limits of Union powers (recital 18);
- the Pillar does not affect the right of Member States to define the principles of their social security system and manage their public finances (recital 19);
- the EPSR must not significantly affect the financial equilibrium of individual Member States (recital 19).
While some of these limits are familiar (for example, the CJEU has explicitly recognised the financial equilibrium as a legitimate objective that could potentially allow restrictions to social protection – C-196/98 Hepple and others), the extreme cautiousness with which the EPSR is presented, clearly indicates very broad (political) discretion being left for the member states to justify non-enforcement of the Pillar’s principles in the future. These limits paint a bleak picture when it comes to the (political) commitment by the EU institutions and, indirectly, also the Member States to future compliance. In fact, the only concrete route through which the Commission has committed to the enforcement of the EPSR is the European Semester. This is by far is one of the weakest enforcement mechanisms in the EU system, especially in the absence of any real sanctions.
In the absence of clear political will from the key political actors to not only proclaim but also to follow up and to enforce the EPSR, we are left with a mere political declaration. Therefore, as is often the case in the EU, the hope once again lies with judicial enforcement, and the EPSR’s future will largely depend on whether the EU and national courts will rely on its principles when interpreting EU law.
In this context, according to the case law of the CJEU, recommendations are not entirely devoid of legal effect. The CJEU can and often does interpret them alongside other pieces of EU law (C-113/75 Frecassetti, C-90/76 Van Ameyde and C-188/91 Deutsche Shell) and the national judges are actually obliged to take recommendations into account when interpreting EU law (C-322/88 Grimaldi).
To give just one example of a situation in which such interpretation could add a new more protective layer to EU law, it is sufficient to look at principle (2) of the EPSR on “Equal opportunities”. Concerning equal opportunities regardless of gender, racial origin, religion, disability or sexual orientation, the EPSR states that equal opportunities of under-represented groups should be fostered. This introduces a positive obligation to actively facilitate representation of under-represented groups, an obligation previously absent in EU law (see e.g. Article 21 Charter, and Employment Equality Directive). If the CJEU and the national courts follow the recommendation, and take it duly into account when interpreting EU law measures regulating this area, then this is potentially a step closer towards a substantive equality approach that, as argued by Jule Mulder[iii], is currently largely absent in EU law.
Another hopeful thread is the CJEU’s case law on the Charter prior to Lisbon (when its legal nature was exactly the same as that of the EPSR proclamation). The first active endorser of the Charter was the General court (then, the Court of First instance) which did not hesitate to refer to and actively use the Charter in its case law (T-177/01 Jégo-Quéré v Commission). The CJEU, while initially reluctant, also came around and recognised its significance in C-540/03 European Parliament v Council. The CJEU even went as far as using the Charter as a yardstick for evaluating the legality of a secondary law measure. If the EPSR is similarly endorsed by the CJEU, then it might play an important role.
The final aspect that could facilitate the EPSR’s use in the judicial arena is its content. Namely, the EPSR does contain a range of principles mostly formulated in the language of individual rights, which is something the courts are traditionally used to working with. Moreover, it covers a range of areas where its principles could be complementary to the existing EU acquis. While not all areas covered by the EPSR are already regulated in EU law, at least in the ones that are the EPSR could gain a role.
Overall, from the legal perspective, the EPSR is certainly a weak instrument, and even as it stands it has been criticised by some. There is also currently no clear commitment from the EU institutions to give some teeth to the EPSR, either in the form of its implementation as part of the EU acquis or in the form of a Social Action Programme laying down future legislative and non-legislative initiatives to enforce each of its principles. Its future therefore might seem rather bleak.
On the other hand, the EPSR is probably the politically most salient social initiative in recent years and might indeed represent a cyclical ‘revival’ of the social question. As shown above, it also has a rather promising (protective) content, and in spite of its legal weakness if this content gains momentum, this brand new instrument might actually trigger some convergence around certain social objectives (e.g. ‘fair wages’, ‘adequate social protection’, ‘adequate minimum income’). In such case, it could lead to some strengthening of the EU social dimension, a welcome development after the years of austerity and social impasse.
For now, however, there is very little in terms of concrete potential for the enforcement of the EPSR. As often is the case in the EU realm, one can only hope that the EPSR will gain some teeth as a result of the judicial application both at the EU and national level. In this regard, the CJEU’s past case law concerning similar instruments gives some reason for confidence.
[i] M. Kaeding, ‘Towards an Effective European Single Market: Implementing the various forms of European policy instrument across Member States’, 2012, p. 20.
[ii] Klaus Lörcher, Die Europäische Säule Sozialer Rechte – Rechtsfortschritt oder Alibi? AuR 10, 2017, p. 391.
[iii] Jule Mulder, EU Non-discrimination law in the courts. Approaches to sex and sexualities discrimination in EU law, Hart publishing, 2017, p. 59.