Professor Catherine Barnard, Trinity College Cambridge
If the critics are
right, the EU social model is dead. Those on the right may well be dancing on
its grave; those more sympathetic might mourn its passing. My view is more
sanguine. Yes, the European social model (ESM) is certainly facing
unprecedented challenges. However, I will suggest that these challenges, caused
in part by the EU’s response to the crisis but more generally resulting from a
growing hostility towards the European Union project as a whole, are not
terminal and that there is – and should be - a continued role for the European
social model. The EU’s history demonstrates that the ESM has, in fact, a
long-standing ability to regenerate and resurrect itself. In this blog post, I
would like to consider the future.
Vandenbroucke and
Vanhercke argue that ‘Europe needs a Social Union that can support national
welfare states on a systemic level in key functions such as macroeconomic
stabilisation, and also guide the development of national welfare states on the
basis of general social standards and objectives.’ [1] For
the eurozone states this may indeed be the best and necessary solution. However,
I want to focus on an agenda which might hold some appeal to an EU of 28, or at
least a combination of both Eurozone and non-Eurozone states and this
inevitably focuses on the narrower domain of employment law. And my discussion is
tempered by political reality.
Social compact
Social compact
First, I would call
for the creation of a European Social Compact to match the Fiscal Compact. This
would contain a strong statement of the value and importance of social policy
in the EU and would help to address the long-standing concern that, come the
crunch, the EU prioritises economic over social interests. This would send a
stronger message to the legislature and to the courts of the role and function
of social policy, a message that the phrase ‘social market economy’ has failed
to send with significant force. So what might go in it?
Apart from general
statements that the EU is about improving the living and working conditions of
its population, I would like to see express reference being made to other
social rights documents, including the European Social Charter of 1961, to
create a greater opening of the EU to other international instruments. I would
also suggest the need for a clause which explicitly requires the Broad Economic
Policy Guidelines to take account of social matters. More radically, I would
also like to see the mandate of the European Central Bank (ECB) to be extended,
like that of the Federal Reserve in the US and other central banks, to
promoting economic growth, as well as high levels of employment and social
cohesion, and not just the maintenance of price stability, as specified in
Article 127 TFEU.
Ideally any Social
Compact would apply to all 28 states and take the form of a Treaty amendment.
However, the current political climate makes this seem unlikely (the UK would
certainly vote against, as might a number of other Member States worried about
the implications of a Treaty amendment on their own national systems). This
inevitably means looking at some sort of free standing Treaty, like the Fiscal
Compact, which could be signed up to by interested Member States and have force
under international law. Another model for flexibility would be to follow the
pattern of the Euro Plus Pact, agreed by interested Member States. It is not
legally binding but it is taken into account in the various soft-law processes
rather in the way of the Stability and Growth Pact Resolution of 1997.
Medium-term measures
Medium-term measures
I fully accept that a
Social Compact is a long shot and that any reform protocol, while important, is
not exciting. So what else could the EU be doing? I would suggest the EU go
back to its roots and, as it did in the 1970s, specialise. There are three
areas which could be singled out as needing the EU’s attention, where EU level
activity might be justified given the transnational dimension, and where action
has a direct connection with the European Semester: ageing population,
enforcement, and addressing the consequences of privatisation.
The justification for
EU involvement with management of an ageing population relates to the key issue
of sustainability of public finances which, as the Eurozone crisis has shown,
is a matter of common interest. The EU has long had expertise in the
discrimination area, starting with sex and then in respect of other protected
characteristics. Addressing age discrimination/extending working life
initiatives/flexible working fits in with this specialisation while dovetailing
with the EU’s social cohesion agenda. On a related issue, developing family
friendly policies - which would include elder care as well as child care –
would also fit within this theme. The reform of the Parental Leave Directive
serves only to highlight other lacuna in EU provision such as the absence of
provisions on the right to request reduced hours of working. There may be room
for EU intervention here.
Second, there is a
growing body of evidence that migrant workers are being mistreated by some
employers in certain sectors, particularly meat processing. If these workers
cannot, for practical reasons, enforce their rights, there is a role for the EU
to consider intervening to require effective remedies. The new Directive 2014/54
on free movement of workers is a step in the right direction. But there is
evidence that migrant workers do not enforce their rights through tribunals.
This requires more pro-active enforcement. Is there a role for greater
coordination at EU level of, for example, labour inspectors? Or even, more
radically, some sort of Europol for labour inspections?
If the EU was to
devote its attention to the position of (vulnerable) migrant workers, other
issues arise for these workers (as well as for nationals). In particular, what
sort of contracts do they have? In recent years there has been a proliferation
of new types of contracting, including zero hours contracts, internships, crowd
employment and employee sharing. To what extent do individuals engaged in this
kind of work benefit from employment protection legislation traditionally given
only to those defined as ‘employees’? Should the EU envisage legislating for a
new type of contract such as Freedland’s contract to provide personal service
which would provide a gateway to employment protection?
Third, privatisation
of publicly owned industries and services is clearly an important part of the
reform agenda for a number of Member States. What are the employment law
implications of this? Does the Transfer of Undertakings Directive 2001/23 need
revision to provide meaningful rights to transferees in the event of the
transfer and for a significant period thereafter? How does the Directive fit
into the public procurement process? Is it time for the transfer rules to be
re-examined in the light of the new contexts in which they are being invoked?
Legal basis to act
Legal basis to act
I have given some
examples of what the EU might do to boost the social dimension. The question is
how the EU might deliver them. The EU has significant legal competence to act
in these fields – whether under Article 153 TFEU (the principal social policy
legal basis), Article 21(2) or Article 25 TFEU (the citizenship provisions),
Article 26(3) TFEU (on guidelines and conditions necessary for ensuring
balanced progress in all sectors of the internal market), Article 46 TFEU (the
legal basis on which Directive 2014/54 on measures facilitating the exercise of
free movement of workers was adopted), Article 50(1) TFEU on freedom of
establishment (the legal basis on which the directive on diversity information
is proposed), the internal market legal bases, Articles 114 and 115 TFEU but,
following the Monti II debacle, probably not Article 352 TFEU.
The use of any of
these legal bases have (de)merits but what is even more important is the
political will to act and that seems to be lacking in a number of Member
States. So this raises the question of whether enhanced cooperation should be considered
in the social policy field ‘to enable and encourage a group of Member States to
cooperate inside rather than outside the Union, where it is established that
the objectives pursued by that cooperation cannot be achieved by the Union as a
whole’ (see the Unitary Patent case).The
use of enhanced cooperation is strictly limited by the framework for enhanced
cooperation between Member States found in Title IV of the TEU and Title III
(Article 20 TEU) of Part Six of the TFEU (Articles 326 to 334 TFEU).
Provided these conditions are satisfied, there seems no good reason why
enhanced cooperation cannot be used in the social field. It is far from optimal
– but better than nothing. The Unitary
Patent case may suggest, too, that it has the Court’s blessing.
Despite the
doomsayers, the EU is still intact after the most tumultuous years of its
existence. The European Social Model, too, has been battered by the crisis, but
it was already in difficulties before that. Reforms were necessary. In the last
five years, economic governance and its reform has predominated, often at the
expense of the development of the social dimension. The European Employment
Strategy has been accommodated – and largely subsumed by - the European
semester. This loss of a separate and distinct identity of the EES has been
damaging. (Part of) the EU is conscious of this and it maybe that the new
European Parliament and the new Commission will recognise the need to raise the
profile of social policy. The EU’s regenerative capacity in the field of social
policy needs to be shown again. And there are lots of ideas as to what the EU
might do.
Barnard & Peers: chapter 20
[1]
Frank Vandenbroucke and Bart Vanhercke note, European Social Union: Ten Tough Nuts to Crack (Friends of Europe,
2014), 16. See also Commissioner Andor, ‘Social Dimension of the Economic and
Monetary Union: what lessons to draw from the European Elections’, 13 June 2014
http://europa.eu/rapid/press-release_SPEECH-14-455_en.htm.
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