From Austerity Dorsum To Legitimacy? The European Pillar Of Social Rights: A Policy Brief

How Juncker tin flaming brand ‘The European Pillar of Social Rights’ deliver a powerful message that the European Union is an surface area of dignity, autonomy together with social justice

Claire Kilpatrick (EUI), Elise Muir (Veni Fellow, Maastricht) together with Sacha Garben (College of Europe, Bruges)

Since the fiscal crisis began together with the EU's reply to it included wider austerity inwards a number of countries, at that spot have got been doubts amongst many citizens that the European Union is soundless committed to prosperity together with ascent living together with working standards. The of late announced ‘European Pillar of Social Rights’ is an essay to address this concern. In our view, the Pillar must include binding together with high-profile pledges - on minimum wage together with minimum income - inwards monastic enjoin to address citizens' concerns together with for the EU to displace on from austerity back to legitimacy.

The ‘European Pillar of Social Rights’ is a Commission policy first launched inwards March 2016. Our analysis reflects on the policy physical care for together with proposals to date. It explains why a High-Level Conference on the Pillar held inwards belatedly Jan 2017 is the most of import staging-post to date. We brand proposals for orienting the Pillar first towards delivering dignity, autonomy together with social jurist inwards the European Union together with evaluate the constitutional implications, peculiarly inwards damage of European Union competence, of the commitments to innovate European Union measures on minimum pay together with income, together with to restrain the Pillar to the euro-area states. The Pillar first seems probable to feed into the Commission White Paper on the Future of Europe launched inwards March 2017 which volition move followed past times a serial of reflection papers of which the root mentioned is developing the social dimension of Europe. Accordingly it is an of import novel policy juncture for Social Europe which deserves analysis together with input.

The Pillar is an opened upwardly physical care for with impressive civil lodge together with European Union institutional participation.

The High Level Conference organised past times the Commission on 23 Jan 2017 on the European Pillar of Social Rights showed it attracts every bit much attending every bit it is mysterious. Numerous stakeholders amongst at to the lowest degree 10 Commissioners, including President Juncker together with Vice-President Dombrovskis, representatives of diverse European Union institutions including President Tajani of the European Parliament together with authorities ministers converged on Brussels to vocalisation their opinions on the European Pillar of Social Rights.

The many interventions left footling incertitude that the precise legal shape together with policy content of the Juncker Pillar remains undetermined together with thus opened upwardly for discussion. Hence, rather than reading the Pillar consultation document with its draft listing of ‘principles’ every bit a quasi-finalised text with exactly its legal status together with compass to move determined, the Pillar consultation is best seen every bit providing a vehicle for a broad arrive at of proposals on resetting Social Europe.

Seen every bit such a process, the Pillar consultation has been a success. Over 16,000 individuals together with organisations filled inwards the questionnaire issued every bit business office of the Consultation together with roughly 200 written contributions were submitted to the Commission. In Autumn 2016, national consultation events were held across the European Union Member States. The really substantial NGO together with nuptials presence at the High-Level Consultation testifies to civil lodge engagement together with investment inwards the Pillar consultation. Amongst these, the Social Policy Platform deserves to move highlighted. By bringing together since 1995 over xxx dissimilar social NGOs, including Age Platform Europe, PICUM (Platform for International Cooperation on Undocumented Migrants), EAPN (European Anti-Poverty Network), Housing Europe, ILGA-Europe, European Youth Forum together with the European Disability Forum, it had an added legitimacy together with vocalisation inwards the process. It disseminated well-defined proposals for the Pillar. In lite of Juncker’s proclamation inwards his closing speech, it produced the most resonant proposal of a minimum income directive together with a proposal on minimum pay via the European Semester.

The frames of give-and-take failed to laissez passer on European Union social rights together with values their cardinal house inwards the Pillar.

The European Pillar of Social Rights first comes afterward a decade which has altered perceptions of the European Union every bit a benign or mildly positive forcefulness for social jurist inwards Europe.  Sovereign debt together with EMU governance are 1 of import argue for this shift. Another relates to concerns triggered past times complimentary motion afterward the 2004 together with 2007 enlargements. Political developments learn far vital for the European Union to exercise the Pillar to reassert the pursuit of social jurist every bit a cardinal business office of its mission. Yet the urgency together with importance of recentring the EU’s social jurist roles together with responsibilities was non fully acknowledged past times many actors at the High-Level Consultation. There is a adventure of doing too little.

Getting the frames of analysis correct is crucial to guide the Pillar together with the decisions together with actions on its implementation. The frames or narratives which were really acquaint during the High-Level Consultation were:

Social Europe was desirable provided EMU debt together with deficit limits were respected;

Social Europe, the EMU together with the internal marketplace tin flaming or practice happily co-exist;

Social Investment is the guiding frame for the Pillar of Social Rights together with is non incompatible with social rights every bit human rights;

Adapting to novel technologies together with run platforms is the top dog priority for Social Europe.

In our view, these frames should non move those guiding the Pillar physical care for or its implementation. Instead it is vital to make it explicit that the driving forcefulness for legal together with policy alter is the want to protect the dignity together with autonomy of individuals every bit good every bit social justice.

Dignity recognises the equal together with intrinsic worth of every human beingness piece autonomy requires political institutions non to deprive individuals of valuable options inwards areas of fundamental importance inwards their lives. In the absence of such an explicit message inwards the Pillar, or if the message is blurred past times economical arguments inwards back upwardly for change, or made discipline to economical conditions, or wishing away difficult choices betwixt the economical together with the social, or attributing Social Europe’s malaise to novel technologies together with platforms, the message together with its delivery volition move imperilled. 

Protection of individuals together with their dignity together with autonomy has a business solid European Union police pull footing bolstered past times national constitutional together with international human rights law. Dignity is the foundational regulation of the European Union Charter of Fundamental Rights together with many of the rights it contains are specifications of those foundational commitments. Hence ,for example, the Charter ‘recognises together with respects the correct to social together with housing assistance so every bit to ensure a decent existence for all those who lack sufficient resources’ (Article 34(3)) together with ‘the correct to working weather which abide by his or her health, security together with dignity’ (Article 31). Most closely related to the value of autonomy inwards Social Europe are the European Union Charter commitments to the correct to engage inwards run together with pursue a freely chosen trouble every bit good every bit the freedoms of association (Article 15), expression, information together with consultation (Articles eleven together with 27), to collectively care together with choose collective activeness (Article 28).

Beyond the European Union Charter together with human together with constitutional rights’ commitments, the EU’s social jurist together with progress objectives characteristic prominently inwards the Treaties: inwards the TFEU’s preamble every bit the resolve to ensure the ‘social progress of their United States of America past times mutual activeness to eliminate the barriers which split upwardly Europe’. Article 3 TEU conceptualises the European Union every bit ‘a social marketplace economy’ aiming at total work together with social progress, together with provides that it ‘shall scrap social exclusion together with discrimination, together with shall promote social jurist together with protection’. These objectives shall furthermore move mainstreamed across all European Union policies, inwards accordance with Article nine TFEU, which provides that ‘in defining together with implementing its policies together with activities, the Union shall choose into business organisation human relationship requirements linked to the advertisement of a high grade of employment, the guarantee of adequate social protection, the struggle against social exclusion’.

Influenza A virus subtype H5N1 European Pillar of Social Rights must move founded on these values together with move concerned with their advertisement together with guarantee inwards a changed European Union membership together with EMU context.

The European Union constitutional implications of a Eurozone pillar together with minimum income together with pay guarantees

The Commission President made a twofold announcement: an initial focus of the Pillar on the Eurozone together with a dual guarantee for minimum pay together with income.

We strongly endorse the proposals to focus on minimum pay together with income for those living together with working inwards Europe. These proposals non solely address the preoccupation that the European Union has threatened these protection floors, they also enshrine the values of dignity together with autonomy inwards the EU. Yet to properly realise those values requires minimum pay together with income instruments to apply to all European Union Member States, non but Euro surface area states. Sovereign debt arrangements applied to iii non-euro surface area states together with concerns that enlargement threatens the social flooring are non confined to euro surface area states either. Minimum pay together with minimum income are social guarantees of a fundamental nature that should apply across the EU. Indeed the social acquis, other than the brief opt-out past times the UK of Britain together with Northern Republic of Ireland betwixt Maastricht together with Amsterdam, has ever applied to all those living together with working inwards Europe together with should proceed to practice so.

Moreover, to brand them tangible, these European Union minimum income together with pay guarantees must move enshrined inwards visible together with effective instruments. In both cases, our preference would move for legally binding Directives which should move complemented with soft police pull commitments inwards the European Semester together with programme commitments inwards sovereign debt loan states.

This raises questions of European Union competence to adopt such legally binding measures.

For minimum income, nosotros concord with the Social Policy Platform that Article 153(1)(h) TFEU which allows for binding measures to move adopted using the ordinary legislative physical care for for the integration of persons excluded from the labour marketplace is appropriate.

It is widely assumed that it is impossible for the European Union to adopt a minimum pay directive because Article 153(5) TFEU states that the social policy legal base of operations ‘shall non apply to pay’. However, the Commission may have got inwards withdraw heed a creative literal reading of the combination betwixt Article 153(5) together with Article 352 TFEU (the ‘residual powers’ clause of the Treaties). Article 153(5) TFEU could move read every bit excluding solely the adoption of a minimum pay directive nether the Social Policy Title of the Treaty without excluding other possible legal bases.

Article 352 TFEU would so move examined every bit a potential legal footing for a minimum pay directive. Article 352 tin flaming move used ‘where the Treaties have got non provided the necessary powers’ but cannot move used to harmonise Member States’ laws or regulations ‘where the Treaties exclude such harmonisation’. However, this harmonisation exclusion could move read every bit applying solely inwards those cases where the Treaties clearly inwards damage outlaws harmonisation such every bit inwards the areas of vocational grooming (Article 166 TFEU) together with civilization (Article 167 TFEU) (each allowing legislative measures to move adopted ‘excluding whatever harmonisation of the laws together with regulations of the Member States’). It hence would non apply to Article 153(5) TFEU. Following this interpretation, a minimum pay directive could move adopted if it achieved the unanimous Member State back upwardly required nether Article 352 TFEU. It remains to move seen if such a line of reasoning would move accepted past times the European Union legislator.

The enquiry could move raised whether the internal marketplace legal footing of Article 115 TFEU could move used for the adoption of a minimum pay directive (Article 114 TFEU cannot move used, since Article 114(2) TFEU prevents reliance on Article 114(1) to protect the rights together with interests of employed persons). There is an declaration that such a measure, fifty-fifty if it would retain sure differences inwards minimum pay levels amongst European Union Member States, would aid cut down distortions inwards competition. Not solely would it facilitate the application of the Posting of Workers Directive inwards the surface area of cross-border service provision, having a sure minimum pay grade inwards all Member United States of America could to a greater extent than to a greater extent oftentimes than non aid bound contest on wages. Whether the expected reduction inwards distorted contest would move sufficient to fulfil the weather for exercise of the internal marketplace legal footing is an opened upwardly question, together with would depend inwards business office on at what (relative) grade the wage would move laid together with whether this significantly decreases electrical flow differences inwards pay amongst the Member States.

However, fifty-fifty if this would move accepted every bit possible inwards legal terms, at that spot are several reasons why Article 115 TFEU would non move the advisable course of teaching of action. If the directive is nigh achieving really social objectives, the exercise of an internal marketplace legal footing is unwise, every bit the Court is so to a greater extent than probable to translate the mensurate inwards a market-friendly agency inwards instance of a conflict betwixt ‘the social’ together with ‘the market’ (which is arguably what happened inwards the instance of the Posting of Workers Directive, every bit good every bit the Collective Redundancies Directive).  And every bit Article 115 TFEU requires unanimity every bit much every bit Article 352 TFEU, at that spot is footling strategic reward inwards using it either.

Subsidiarity concerns volition plainly move addressed past times setting pay together with income levels appropriate to each state. European Union abide by for the Council of Europe together with commitment to social rights tin flaming move underlined past times using that body’s European Social Charter commitments together with elaboration of the correct to a fair remuneration (Article 4(1)) together with to social assistance (Article 13) every bit base-lines.

The old provision requires United States of America ‘to recognise the correct of workers to a remuneration such every bit volition laissez passer on them a decent criterion of living’, together with the European Committee of Social Rights has ruled that the lowest cyberspace wage must move higher upwardly a minimum threshold, laid at 50% of the cyberspace average wage, piece nation conformity volition move assumed higher upwardly 60% of the cyberspace average wage. The latter provision deems assistance appropriate where the monthly amount paid to a soul living lonely is non manifestly below the poverty threshold (50% of median equivalised income every bit established past times Eurostat).

If it is decided necessary for transitional or political reasons to proceed with the nineteen euro surface area states or another subset of European Union Member States, this opens a farther laid of questions nigh the legal footing of measures for minimum pay together with income every bit the legal bases indicated are for all Member States. Although the Lisbon Treaty added a novel legal basis, Article 136 TFEU, for measures addressed solely to euro surface area states, nosotros practice non consider this a suitable footing for minimum income together with pay legislative proposals for ii reasons. The root is that, although used (questionably) to create measures providing for EMU sanctions for euro surface area states (see C. Kilpatrick, ‘The New Economic Component of EMU: Influenza A virus subtype H5N1 Lawful together with Effective Design?’ EUI Working Paper, ADEMU Horizon 2020 Project Series, 2016), its centre of gravity lies inwards strengthening coordination together with surveillance nether the European Semester. The minute is that legislative proposals for minimum pay together with income, based on dignity, autonomy together with social justice, should non move grounded inwards a macro- economical competence.

What so are the alternatives for legislative measures on minimum pay together with income roofing solely some European Union Member States? One possibility is enhanced co-operation, a physical care for whereby some Member United States of America adopt European Union police pull without unwilling Member United States of America (see Article xx TEU together with Articles 326-334 TFEU). This tin flaming move used solely every bit a in conclusion resort where the Council has established that the objective sought cannot move achieved inside a reasonable menstruation past times the European Union every bit a whole together with hence could furnish an alternative avenue for minimum income together with pay proposals should EU-wide understanding bear witness unattainable.

Another possibility is ‘going outside’ the Treaties via an international understanding on these matters betwixt solely the participating euro surface area states or those states together with other willing participants. The old was the model used inwards the sovereign debt crisis to fix the European Stability Mechanism inwards 2012 together with its predecessor, the European Financial Stability Fund inwards 2010. The latter was the path chosen for the Fiscal Compact Treaty of 2012. However, such parallel integration nonetheless raises of import legitimacy concerns: run into S. Garben, ‘Restating the Problem of Competence Creep, Tackling Harmonization past times Stealth together with Reinstating the Legislator’, in: S. Garben together with I. Govaere (eds.), The Division of Competences inwards the European Union Legal Order: Reflections on the Past, the Present together with the Future (2017, Hart Publishing).

This is non to deny Mr Juncker’s welcome recognition that the constraints imposed inwards the context of European Union macro-economic governance justify special attending to socializing the European Semester. It is also for certain the instance that European Union legislative commitments tin flaming usefully move complemented past times activeness inwards the European Semester. We brand proposals to practice so inwards the side past times side section. 

Beyond the Juncker announcement: the Pillar needs to strengthen, broaden the social acquis together with socialize the European Semester

At the fourth dimension of the 60th anniversary of the Treaty of Rome, it may move recalled that the TFEU enables the adoption of European Union legislation on a fairly broad laid of social questions. For instance, Article 153 TFEU allows for the adoption of legislation on workers’ wellness together with safety, working weather or information together with consultation of workers. Influenza A virus subtype H5N1 whole trunk of social legislation has been adopted at European Union grade together with begs for modernisation. As mentioned inwards this Federal Reserve annotation already, the Charter of Fundamental Rights of the European Union - that has the same legal value every bit European Union primary police pull since the entry into forcefulness of the Lisbon Treaty - also contains a laid of provisions on solidarity that have got so far been footling used.

Curiously, the mightiness for the European Union to intervene through legally binding instruments had been discipline to footling attending during the High Level Conference. One could hence fearfulness that the Commission volition shy away from making difficult police pull proposals. We would thus similar to underline the importance of anchoring the Pillar inwards European Union social policy together with giving appear to the social provisions contained inwards the Charter. This is necessary to ensure that the Pillar indeed enhances the protection of the dignity together with autonomy of individuals across Europe.

We have got already made suggestions elsewhere to broaden together with consolidate the European Union social acquis (see S. Garben, C. Kilpatrick together with E. Muir, Towards a European Pillar of Social Rights: Upgrading the Social Acquis, College of Europe Policy Brief #1.17). We suggested the adoption of (1) a Directive for the Protection of Dependent Workers, ensuring the application of the existing European Union social together with labour police pull measures to all subject workers (2) a Protection against Precarious Work Directive, (3) a Directive for the Enforcement of Workers’ Rights.  We also called for (4) a Declaration safeguarding the integrity of the social acquis every bit an European Union flooring for worker protection.

Influenza A virus subtype H5N1 farther re-centring of European Union competences inwards the social acre could Pb to the re-adoption of Directives such every bit the Collective Redundancies Directive together with the Directive on the Transfer of Undertakings on social legal bases. Indeed, these Directives stay abnormally grounded inwards European Union internal marketplace competences. It would move naïve to ignore the possibility of tensions betwixt the economical together with the social dimensions of these instruments, every bit illustrated past times the recent AGET case earlier the CJEU (freedom of establishment v. domestic rules protecting against collective redundancies). The social nature of these legislative instruments ought thus to move consolidated. The assertion of such an autonomous mandate for social rights would permit to meliorate articulate economical together with social concerns inwards cases of tensions.

In the meanwhile, existing tools of economical governance could move re-adjusted to brand to a greater extent than infinite for genuine social priorities. In that sense, the social platform wisely suggested to exercise the infrastructures of the European Semester to counter the electrical flow tendency pushing Member United States of America to readjust payoff downwards. The Commission could indeed back upwardly the introduction of references to adequate minimum payoff inwards the Annual Growth Survey every bit good every bit inwards the Country Specific Recommendations together with hold rail of the evolution of wage levels. This would laissez passer on to a greater extent than seize with teeth to the work policy prong of the European Semester.

To that effect, it is of import that Country Specific Recommendations proceed to move adopted on the dual legal bases of Articles 121(2) (economic policy) together with 148(4) TFUE (employment policy). Key players at European grade are thus non solely those inwards accuse of economical together with fiscal affairs but also those responsible for work together with social policy who are to a greater extent than probable to ensure that due attending is paid to work together with social concerns indeed. Mark Dawson has usefully observed that the involvement of the latest category of actors could move farther enhanced inwards the Macroeconomic Imbalance Procedure (MIP; run into M. Dawson, ‘The European Semester: Displacing Social Policy inwards the New ‘New Governance’’ inwards C. Kilpatrick (ed.) The Displacement of Social Europe (forthcoming). On file with the author).

Indeed, to the extent that this physical care for does termination inwards suggesting - if non imposing – changes inwards domestic social together with work policies every bit business office of the Country Specific Recommendations, the decision-making physical care for leading to their adoption shall move adjusted. This should permit for a stronger involvement of actors specialised inwards the acre such every bit the Council configuration on Employment, Social Policy, Health together with Consumer Affairs. For instance, run into the Report from the Council Employment Committee together with Social Protection Committee on ‘Assessment of the 2016 Country-specific Recommendations (CSRs) together with the implementation of the 2015 CSRs’ on labour marketplace aspects (p 10) together with on social protection together with inclusion (p 21).

Now, the Juncker Commission may move considering reserving, or enhancing, the emphasis on minimum pay (and income) inwards recommendations specific to Euro surface area members. Although nosotros would regret a focus on Eurozone members only, if this approach was adopted it would move all the to a greater extent than so of import to refer to Article 148 TFEU (employment policy) every bit a legal base of operations likewise Articles 136 (Eurozone) together with 121(2) TFEU (economic policy) inwards monastic enjoin to ensure adequate representation of social players together with interests.

Conclusion

The most concrete elements of information received during the Conference are unquestionably the announcements made past times Commission President Juncker. Let us move clear, sending a message that the European Union guarantees (directly or indirectly) minimum income together with payoff would move most welcome; together with giving flesh to such guarantees through tools available inwards the context of European Union economical governance is understandable. This nonetheless should move framed with appropriate conceptual together with legal tools placing private protection at the core of the physical care for and, to that effect, it ought to move backed upwardly with a solid effort to modernise the European Union social acquis.

In that sense, it is to move hoped – every bit hinted at past times President Juncker himself - that the first for the European Pillar of Social Rights volition live upwardly to the standards of the ambitious social agenda called for past times Commission President Delors inwards the belatedly 1990s. It may move recalled that this had resulted inwards the Proclamation past times eleven out of the 12 Member states of the Community Charter of Fundamental Social Rights together with came with a strong impulse for the adoption of novel legislation (point 28 of that Charter). In the novel EMU together with enlargement context, the legislative focus should move on providing an updated together with to a greater extent than comprehensive European Union flooring of social rights together with should move accompanied past times proposals to socialise the European Semester both inwards its physical care for together with its substance.

Barnard & Peers: chapter 20

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