The proposal on adequate minimum wages in the European Union: Striving for fairness, less so adequacy

 

Ane Aranguiz, Postdoctoral Researcher, University of Antwerp

 

Less than a year after the Commission announced its commitment to an initiative on minimum wages, on 28 October 2020 the Commission finally presented the fiercely criticized proposal for a directive on adequate minimum wages. The Commission had to find an balance on the tightrope of criticisms en masse regarding, inter alia, its lack of competence, concerns regarding the autonomy of social partners and the sustainability of collective bargaining systems or the impact on the competitive advantage of lower wages on certain Member States.

 

Background

 

Over the last years, low wages have not kept up with other wages in many Member States and recent labour structural trends such as globalization, digitalization and the upturn of non-standard employment have resulted in increased job polarisation leading to an increased share of low-paid and low-skilled jobs. These trends have further contributed to the erosion of collective bargaining systems. Making matters worse, the recent Covid-19 crisis is particularly hitting sectors with a higher share of low-wage earners and having a disproportionate impact on disadvantaged groups such as women, young, low-skilled workers or people with disabilities.

 

Ever since the adoption of the European Pillar of Social Rights (EPSR) in 2017, the European institutions have been committed to delivering more effective social rights to the European society. The latest initiative relates to a proposal for a directive on adequate minimum wages in the EU, implementing principle 6 EPSR which aims at providing better working conditions, addressing adequacy of minimum wages to contribute to improving the fairness of the labour market in the EU and to stimulate productivity and socioeconomic progress.

 

The initiative was first addressed in the Political Guidelines for the Commission 2019-2024. In January 2020, the Commission presented its communication on ‘building a strong social Europe for just transitions’ alongside the first-stage consultation where social partners were consulted on the need for a potential initiative on minimum wages and its possible direction. The second-stage consultation, between June and September, dealt with the content and the legal instrument. In view of a lack of agreement among the social partners to enter into negotiations to conclude an agreement according to Article 155 TFEU and after carrying out an impact assessment following the policy on Better Regulation, the Commission presented its proposal for a Directive.

 

Content

 

On the basis of Article 153(1)(b) TFEU on working conditions and Article 153(2)(b) TFEU, the Commission puts forward a directive that aims at ensuring that work is remunerated adequately as to allow for a decent living wherever they work. The design of the directive is thought to take into account and adapt to country specific characteristics, therefore respecting national competences, the contractual freedom and autonomy of social partners. Moreover, it has the objective of promoting collective bargaining on wages, ensuring formal coverage and guaranteeing compliance with existing collective agreements of statutory minimum wages.

 

To this end, the proposed directive is structured in four chapters: General provisions (Articles 1-4: subject matter, scope, definitions, promotion of collective bargaining on wage setting); statutory minimum wages (Articles 5-8: adequacy, variations and deductions, involvement of social partners in statutory minimum wage setting and updating and effective access of workers to statutory minimum wage); horizontal provisions (Articles 9-12: public procurement, monitoring and data collection and penalties); and final provisions (Articles 13-19: implementations, dissemination of information, evaluation and review, non-regression and more favourable provisions, transpositions, entry into force and addresses).

 

Among these, there are a number of provisions that need to be emphasized. In the first place, attention should be paid to the scope of the proposal, which applies to every worker in the Union who has an employment contract or employment relationship as defined by law or collective agreements and in consideration with the case-law of the ECJ. What is interesting is that recital 17 of the preamble complements this by specifically addressing categories that are often disputed to qualify as ‘workers’, including domestic workers, on-demand workers, intermittent workers, voucher based-workers, bogus self-employed, platform workers, trainees and apprentices. Remarkably, it enshrines that it is the actual performance of work and not the work description provided by the parties what determined the existence of an employment relationship. This provision is clearly designed to ensure that non-standard forms of employees are covered by minimum wages, regardless of whether they have traditionally been considered as workers insofar as they fulfil similar criteria.

 

Differently, Article 4 provides for the promotion of collective bargaining, including the obligation to install a framework to enable collective bargaining where coverage is less than 70%, which requires an action plan to be made public and presented to the Commission. In the case of statutory minimum wages, the proposal enshrines a provision on adequacy in its Article 5, imposing an obligation on Member States to establish national criteria in a stable and clear way that includes (at least) the purchasing power of minimum wages, the general level of gross wages and their distribution, their growth rate and labour productivity developments. Member States are further obliged to use indicative reference values commonly used at the international level. While the preamble refers to the at-risk-of-poverty threshold in this regard as a possible aid to assess adequacy, the provision does not include a specific reference value that (even remotely) sets a threshold. Article 6, in turn, limits possible variations and deductions that allow different rates of statutory minimum wages, and provides that in any case they should be objectively justified and proportionate.

 

In addition, the monitoring system provides for a platform of supervision, data collection and evaluation of the current framework. Article 10 requires, inter alia, a report on annual basis, statistics and information (disaggregated by gender, age, disability, company size and sectors) which the Commission will assess and report accordingly to the Council and the Parliament.

 

These are complemented with the more common provisions regarding remedies, implementation, non-regression, dissemination, evaluation and transposition.

 

Analysis

 

In spite of vast criticisms, this is a rather strong proposal, if not so much in terms of adequacy, at least in terms of ensuring access to minimum wages, transparency and compliance. The proposal has it written all over how much the Commission has tiptoed around the concerns regarding the autonomy of the social partners and the possible negative effects on collective bargaining systems. Besides the obvious provisions on the promotion of social partners (Articles 4 and 7), the preamble addresses this concern extensively (recitals 18-20) and an entire chapter (2) is dedicated solely to statutory minimum wages to make a clear separation between the two systems.

 

In all certainty, one of the strongest points of this proposal relates to its broad coverage. A combination of a broad concept of worker, an obligation to put a framework to promote collective bargaining in areas not yet covered by collective agreements and the clear limits to variations and reductions in the case of statutory minimum wages, will in all likelihood (if adopted) lead to the coverage of many workers who are not currently able to access minimum wages. Complemented with a regular monitoring system and access to effective remedy, these provisions could have the desired effect to bring ‘fairness’ to the labour market by ensuring that many more are covered by minimum wages.

 

As was to be expected, however, the proposal is weaker from an adequacy point of view. On a positive note, Member States with statutory minimum wages need to take into account important elements when determining the level of minimum wages. These elements aim at giving important insight regarding the adequacy of minimum wages and whether they allow recipients access to essential services and participate in society. There is, however, no indication on how to use these elements or a certain ‘threshold’ of ‘standard’ that Member States should aim to strive, such as the at-risk-of-poverty threshold (60% of the equivalized median wage), even though in 2018 most statutory minimum wages did not suffice to lift people out of poverty. This might seem surprising, since one of the aims of the Directive is to combat in-work poverty, but it is completely understandable considering the legal basis chosen by the Commission that forbid the regulation of the level of pay (Article 153(5) TFEU). While this provision may certainly ensure some ‘fairness’ and transparency in wage setting mechanisms, minimum wages that lie below the poverty line can hardly be considered ‘adequate’. An alternative legal basis could have allowed to include sturdier commitments to adequacy instead.

 

Another point to warmly welcome is the link between the Directive and other fundamental rights instruments such as the EPSR, the Charter of Fundamental Rights (Article 31 CFR), the European Social Charter (Article 4) and the 131 ILO Convention. These links could act as aid of interpretation for Member States or courts in case of conflict and facilitate judicial dialogue between different authoritative bodies. The clear link to Article 31 CFR, moreover, ensures that the Directive will be read in line with the CFR. In this vein, while Bauer opened the door for the direct application of Article 31 CFR, without a clear reference in the directive it would be disputed that minimum wages are covered by the provision, since Article 31 CFR does not explicitly refer to the right to minimum wages.

 

Further strengthening the proposal, the monitoring system (which will be part of the European Semester) in addition to the access to Technical Support Instrument and the European Social Fund Plus to develop and improve the technical aspects of minimum wage is likely to facilitate a successful and effective implementation of the directive.

 

Conclusion

 

All in all, the Commission has put forward a strong initiative that aims at establishing ‘fair’ minimum wages, if not necessarily ‘adequate’ as the title of the proposal falsely prescribes.

It remains to be seen whether the proposal will in fact survive the brutal opposition to regulating minimum wages at the EU or at least in its current form. In view of the vicious antagonism, it is not unlikely that the proposal will be substantially watered down during the negotiations between the Council and the Parliament, if not completely abandoned after potentially becoming the fourth victim of the yellow-card procedure.

 

Barnard & Peers: chapter 20

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From Austerity Back to Legitimacy? The European Pillar of Social Rights: A Policy Brief

How Juncker can make ‘The European Pillar of Social Rights’ deliver a powerful message that the EU is an area of dignity, autonomy and social justice

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

Since the financial crisis began and the EU's response to it included wider austerity in a number of countries, there have been doubts among many citizens that the EU is still committed to prosperity and rising living and working standards. The recently announced ‘European Pillar of Social Rights’ is an attempt to address this concern. In our view, the Pillar must include binding and high-profile pledges - on minimum wage and minimum income - in order to address citizens' concerns and for the EU to move on from austerity back to legitimacy.

The ‘European Pillar of Social Rights’ is a Commission policy initiative launched in March 2016. Our analysis reflects on the policy process and proposals to date. It explains why a High-Level Conference on the Pillar held in late January 2017 is the most important staging-post to date. We make proposals for orienting the Pillar initiative towards delivering dignity, autonomy and social justice in the EU and evaluate the constitutional implications, especially in terms of EU competence, of the commitments to introduce EU measures on minimum pay and income, and to restrict the Pillar to the euro-area states. The Pillar initiative seems likely to feed into the Commission White Paper on the Future of Europe launched in March 2017 which will be followed by a series of reflection papers of which the first mentioned is developing the social dimension of Europe. Accordingly it is an important new policy juncture for Social Europe which deserves analysis and input.

The Pillar is an open process with impressive civil society and EU institutional participation.

The High Level Conference organised by the Commission on 23 January 2017 on the European Pillar of Social Rights showed it attracts as much attention as it is mysterious. Numerous stakeholders alongside at least ten Commissioners, including President Juncker and Vice-President Dombrovskis, representatives of various EU institutions including President Tajani of the European Parliament and government ministers converged on Brussels to voice their opinions on the European Pillar of Social Rights.

The many interventions left little doubt that the precise legal shape and policy content of the Juncker Pillar remains undetermined and thus open for discussion. Hence, rather than reading the Pillar consultation document with its draft list of ‘principles’ as a quasi-finalised text with just its legal status and scope to be determined, the Pillar consultation is best seen as providing a vehicle for a wide range of proposals on resetting Social Europe.

Seen as such a process, the Pillar consultation has been a success. Over 16,000 individuals and organisations filled in the questionnaire issued as part of the Consultation and around 200 written contributions were submitted to the Commission. In Autumn 2016, national consultation events were held across the EU Member States. The very substantial NGO and union presence at the High-Level Consultation testifies to civil society engagement and investment in the Pillar consultation. Amongst these, the Social Policy Platform deserves to be highlighted. By bringing together since 1995 over 30 different 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 and the European Disability Forum, it had an added legitimacy and voice in the process. It disseminated well-defined proposals for the Pillar. In light of Juncker’s announcement in his closing speech, it produced the most resonant proposal of a minimum income directive and a proposal on minimum pay via the European Semester.

The frames of discussion failed to give EU social rights and values their central place in the Pillar.

The European Pillar of Social Rights initiative comes after a decade which has altered perceptions of the EU as a benign or mildly positive force for social justice in Europe.  Sovereign debt and EMU governance are one important reason for this shift. Another relates to concerns triggered by free movement after the 2004 and 2007 enlargements. Political developments make it vital for the EU to use the Pillar to reassert the pursuit of social justice as a central part of its mission. Yet the urgency and importance of recentring the EU’s social justice roles and responsibilities was not fully acknowledged by many actors at the High-Level Consultation. There is a risk of doing too little.

Getting the frames of analysis right is crucial to guide the Pillar and the decisions and actions on its implementation. The frames or narratives which were very present during the High-Level Consultation were:

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

Social Europe, the EMU and the internal market can or do happily co-exist;

Social Investment is the guiding frame for the Pillar of Social Rights and is not incompatible with social rights as human rights;

Adapting to new technologies and work platforms is the main priority for Social Europe.

In our view, these frames should not be those guiding the Pillar process or its implementation. Instead it is vital to make it explicit that the driving force for legal and policy change is the desire to protect the dignity and autonomy of individuals as well as social justice.

Dignity recognises the equal and intrinsic worth of every human being while autonomy requires political institutions not to deprive individuals of valuable options in areas of fundamental importance in their lives. In the absence of such an explicit message in the Pillar, or if the message is blurred by economic arguments in support for change, or made subject to economic conditions, or wishing away hard choices between the economic and the social, or attributing Social Europe’s malaise to new technologies and platforms, the message and its delivery will be imperilled. 

Protection of individuals and their dignity and autonomy has a firm EU law basis bolstered by national constitutional and international human rights law. Dignity is the foundational principle of the EU Charter of Fundamental Rights and many of the rights it contains are specifications of those foundational commitments. Hence ,for example, the Charter ‘recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources’ (Article 34(3)) and ‘the right to working conditions which respect his or her health, safety and dignity’ (Article 31). Most closely related to the value of autonomy in Social Europe are the EU Charter commitments to the right to engage in work and pursue a freely chosen occupation as well as the freedoms of association (Article 15), expression, information and consultation (Articles 11 and 27), to collectively bargain and take collective action (Article 28).

Beyond the EU Charter and human and constitutional rights’ commitments, the EU’s social justice and progress objectives feature prominently in the Treaties: in the TFEU’s preamble as the resolve to ensure the ‘social progress of their States by common action to eliminate the barriers which divide Europe’. Article 3 TEU conceptualises the EU as ‘a social market economy’ aiming at full employment and social progress, and provides that it ‘shall combat social exclusion and discrimination, and shall promote social justice and protection’. These objectives shall furthermore be mainstreamed across all EU policies, in accordance with Article 9 TFEU, which provides that ‘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’.

A European Pillar of Social Rights must be founded on these values and be concerned with their promotion and guarantee in a changed EU membership and EMU context.

The EU constitutional implications of a Eurozone pillar and minimum income and pay guarantees

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

We strongly endorse the proposals to focus on minimum pay and income for those living and working in Europe. These proposals not only address the preoccupation that the EU has threatened these protection floors, they also enshrine the values of dignity and autonomy in the EU. Yet to properly realise those values requires minimum pay and income instruments to apply to all EU Member States, not simply Euro area states. Sovereign debt arrangements applied to three non-euro area states and concerns that enlargement threatens the social floor are not confined to euro area states either. Minimum pay and 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 by the UK between Maastricht and Amsterdam, has always applied to all those living and working in Europe and should continue to do so.

Moreover, to make them tangible, these EU minimum income and pay guarantees must be enshrined in visible and effective instruments. In both cases, our preference would be for legally binding Directives which should be complemented with soft law commitments in the European Semester and programme commitments in sovereign debt loan states.

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

For minimum income, we agree with the Social Policy Platform that Article 153(1)(h) TFEU which allows for binding measures to be adopted using the ordinary legislative procedure for the integration of persons excluded from the labour market is appropriate.

It is widely assumed that it is impossible for the EU to adopt a minimum pay directive because Article 153(5) TFEU states that the social policy legal base ‘shall not apply to pay’. However, the Commission may have in mind a creative literal reading of the combination between Article 153(5) and Article 352 TFEU (the ‘residual powers’ clause of the Treaties). Article 153(5) TFEU could be read as excluding only the adoption of a minimum pay directive under the Social Policy Title of the Treaty without excluding other possible legal bases.

Article 352 TFEU would then be examined as a potential legal basis for a minimum pay directive. Article 352 can be used ‘where the Treaties have not provided the necessary powers’ but cannot be used to harmonise Member States’ laws or regulations ‘where the Treaties exclude such harmonisation’. However, this harmonisation exclusion could be read as applying only in those cases where the Treaties clearly in terms outlaws harmonisation such as in the areas of vocational training (Article 166 TFEU) and culture (Article 167 TFEU) (each allowing legislative measures to be adopted ‘excluding any harmonisation of the laws and regulations of the Member States’). It therefore would not apply to Article 153(5) TFEU. Following this interpretation, a minimum pay directive could be adopted if it achieved the unanimous Member State support required under Article 352 TFEU. It remains to be seen if such a line of reasoning would be accepted by the EU legislator.

The question could be raised whether the internal market legal basis of Article 115 TFEU could be used for the adoption of a minimum pay directive (Article 114 TFEU cannot be used, since Article 114(2) TFEU prevents reliance on Article 114(1) to protect the rights and interests of employed persons). There is an argument that such a measure, even if it would retain certain differences in minimum pay levels among EU Member States, would help reduce distortions in competition. Not only would it facilitate the application of the Posting of Workers Directive in the area of cross-border service provision, having a certain minimum pay level in all Member States could more generally help limit competition on wages. Whether the expected reduction in distorted competition would be sufficient to fulfil the conditions for use of the internal market legal basis is an open question, and would depend in part on at what (relative) level the wage would be set and whether this significantly decreases current differences in pay among the Member States.

However, even if this would be accepted as possible in legal terms, there are several reasons why Article 115 TFEU would not be the advisable course of action. If the directive is about achieving genuinely social objectives, the use of an internal market legal basis is unwise, as the Court is then more likely to interpret the measure in a market-friendly way in case of a conflict between ‘the social’ and ‘the market’ (which is arguably what happened in the case of the Posting of Workers Directive, as well as the Collective Redundancies Directive).  And as Article 115 TFEU requires unanimity as much as Article 352 TFEU, there is little strategic advantage in using it either.

Subsidiarity concerns will evidently be addressed by setting pay and income levels appropriate to each state. EU respect for the Council of Europe and commitment to social rights can be underlined by using that body’s European Social Charter commitments and elaboration of the right to a fair remuneration (Article 4(1)) and to social assistance (Article 13) as base-lines.

The former provision requires States ‘to recognise the right of workers to a remuneration such as will give them a decent standard of living’, and the European Committee of Social Rights has ruled that the lowest net wage must be above a minimum threshold, set at 50% of the net average wage, while state conformity will be assumed above 60% of the net average wage. The latter provision deems assistance appropriate where the monthly amount paid to a person living alone is not manifestly below the poverty threshold (50% of median equivalised income as established by Eurostat).

If it is decided necessary for transitional or political reasons to proceed with the nineteen euro area states or some other subset of EU Member States, this opens a further set of questions about the legal basis of measures for minimum pay and income as the legal bases indicated are for all Member States. Although the Lisbon Treaty added a new legal basis, Article 136 TFEU, for measures addressed only to euro area states, we do not consider this a suitable basis for minimum income and pay legislative proposals for two reasons. The first is that, although used (questionably) to create measures providing for EMU sanctions for euro area states (see C. Kilpatrick, ‘The New Economic Component of EMU: A Lawful and Effective Design?’ EUI Working Paper, ADEMU Horizon 2020 Project Series, 2016), its centre of gravity lies in strengthening coordination and surveillance under the European Semester. The second is that legislative proposals for minimum pay and income, based on dignity, autonomy and social justice, should not be grounded in a macro- economic competence.

What then are the alternatives for legislative measures on minimum pay and income covering only some EU Member States? One possibility is enhanced co-operation, a process whereby some Member States adopt EU law without unwilling Member States (see Article 20 TEU and Articles 326-334 TFEU). This can be used only as a last resort where the Council has established that the objective sought cannot be achieved within a reasonable period by the EU as a whole and hence could provide an alternative avenue for minimum income and pay proposals should EU-wide agreement prove unattainable.

Another possibility is ‘going outside’ the Treaties via an international agreement on these matters between only the participating euro area states or those states and other willing participants. The former was the model used in the sovereign debt crisis to set up the European Stability Mechanism in 2012 and its predecessor, the European Financial Stability Fund in 2010. The latter was the path chosen for the Fiscal Compact Treaty of 2012. However, such parallel integration however raises important legitimacy concerns: see S. Garben, ‘Restating the Problem of Competence Creep, Tackling Harmonization by Stealth and Reinstating the Legislator’, in: S. Garben and I. Govaere (eds.), The Division of Competences in the EU Legal Order: Reflections on the Past, the Present and the Future (2017, Hart Publishing).

This is not to deny Mr Juncker’s welcome recognition that the constraints imposed in the context of EU macro-economic governance justify special attention to socializing the European Semester. It is also certainly the case that EU legislative commitments can usefully be complemented by action in the European Semester. We make proposals to do so in the next section. 

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

At the time of the 60th anniversary of the Treaty of Rome, it may be recalled that the TFEU enables the adoption of EU legislation on a fairly broad set of social questions. For instance, Article 153 TFEU allows for the adoption of legislation on workers’ health and safety, working conditions or information and consultation of workers. A whole body of social legislation has been adopted at EU level and begs for modernisation. As mentioned in this note already, the Charter of Fundamental Rights of the European Union - that has the same legal value as EU primary law since the entry into force of the Lisbon Treaty - also contains a set of provisions on solidarity that have so far been little used.

Curiously, the ability for the EU to intervene through legally binding instruments had been subject to little attention during the High Level Conference. One could hence fear that the Commission will shy away from making hard law proposals. We would thus like to underline the importance of anchoring the Pillar in EU social policy and giving expression to the social provisions contained in the Charter. This is necessary to ensure that the Pillar indeed enhances the protection of the dignity and autonomy of individuals across Europe.

We have already made suggestions elsewhere to broaden and consolidate the EU social acquis (see S. Garben, C. Kilpatrick and 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 EU social and labour law measures to all dependent 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 as an EU floor for worker protection.

A further re-centring of EU competences in the social field could lead to the re-adoption of Directives such as the Collective Redundancies Directive and the Directive on the Transfer of Undertakings on social legal bases. Indeed, these Directives remain abnormally grounded in EU internal market competences. It would be naïve to ignore the possibility of tensions between the economic and the social dimensions of these instruments, as illustrated by the recent AGET case before the CJEU (freedom of establishment v. domestic rules protecting against collective redundancies). The social nature of these legislative instruments ought thus to be consolidated. The assertion of such an autonomous mandate for social rights would allow to better articulate economic and social concerns in cases of tensions.

In the meanwhile, existing tools of economic governance could be re-adjusted to make more space for genuine social priorities. In that sense, the social platform wisely suggested to use the infrastructures of the European Semester to counter the current trend pushing Member States to readjust wages downwards. The Commission could indeed support the introduction of references to adequate minimum wages in the Annual Growth Survey as well as in the Country Specific Recommendations and keep track of the development of wage levels. This would give more bite to the employment policy prong of the European Semester.

To that effect, it is important that Country Specific Recommendations continue to be adopted on the dual legal bases of Articles 121(2) (economic policy) and 148(4) TFUE (employment policy). Key players at European level are thus not only those in charge of economic and financial affairs but also those responsible for employment and social policy who are more likely to ensure that due attention is paid to employment and social concerns indeed. Mark Dawson has usefully observed that the involvement of the latest category of actors could be further enhanced in the Macroeconomic Imbalance Procedure (MIP; see M. Dawson, ‘The European Semester: Displacing Social Policy in the New ‘New Governance’’ in C. Kilpatrick (ed.) The Displacement of Social Europe (forthcoming). On file with the author).

Indeed, to the extent that this procedure does result in suggesting - if not imposing – changes in domestic social and employment policies as part of the Country Specific Recommendations, the decision-making process leading to their adoption shall be adjusted. This should allow for a stronger involvement of actors specialised in the field such as the Council configuration on Employment, Social Policy, Health and Consumer Affairs. For instance, see the Report from the Council Employment Committee and Social Protection Committee on ‘Assessment of the 2016 Country-specific Recommendations (CSRs) and the implementation of the 2015 CSRs’ on labour market aspects (p 10) and on social protection and inclusion (p 21).

Now, the Juncker Commission may be considering reserving, or enhancing, the emphasis on minimum pay (and income) in recommendations specific to Euro area members. Although we would regret a focus on Eurozone members only, if this approach was adopted it would be all the more so important to refer to Article 148 TFEU (employment policy) as a legal base besides Articles 136 (Eurozone) and 121(2) TFEU (economic policy) in order to ensure adequate representation of social players and interests.

Conclusion

The most concrete elements of information received during the Conference are unquestionably the announcements made by Commission President Juncker. Let us be clear, sending a message that the EU guarantees (directly or indirectly) minimum income and wages would be most welcome; and giving flesh to such guarantees through tools available in the context of EU economic governance is understandable. This however should be framed with appropriate conceptual and legal tools placing individual protection at the core of the process and, to that effect, it ought to be backed up with a solid effort to modernise the EU social acquis.

In that sense, it is to be hoped – as hinted at by President Juncker himself - that the initiative for the European Pillar of Social Rights will live up to the standards of the ambitious social agenda called for by Commission President Delors in the late 1990s. It may be recalled that this had resulted in the Proclamation by 11 out of the 12 Member states of the Community Charter of Fundamental Social Rights and came with a strong impulse for the adoption of new legislation (point 28 of that Charter). In the new EMU and enlargement context, the legislative focus should be on providing an updated and more comprehensive EU floor of social rights and should be accompanied by proposals to socialise the European Semester both in its process and its substance.

Barnard & Peers: chapter 20

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