European Pillar of Social Rights: Meaning and Significance Assessment

1/16 The European Pillar of Social Rights AN ASSESSMENT OF ITS MEANING AND SIGNIFICANCE Prof. dr. Sacha Garben, College of Europe CELS Seminar 7/11/18

Overview 2/16 The Pillar s content 1. Stricto sensu Sensu largo Ambiguities The Pillar in context 2. The EU Better Regulation Agenda The Relationship between EU and International Law in the Area of Social Rights The Imbalance between the market and the social in the EU Conclusion: the Pillar s significance 3.

3/16 1. THE PILLAR S CONTENT

1. What is the Pillar The Pillar stricto sensu 4/16 In a narrow sense, it is a set of 20 social rights and principles Chapter I equal opportunities and access to the labour market : education, training and life-long learning ; non-discrimination ; active support to employment Chapter II fair working conditions : secure and adaptable employment ; fair wages ; dismissal protection ; social dialogue and involvement of workers ; work-life balance ; healthy, safe and well-adapted work environment ; data protection Chapter III social protection and inclusion : childcare and support for children ; social protection ; unemployment benefits ; minimum income ; old-age income and pensions ; health care ; inclusion of people with disabilities ; long-term care ; housing and assistance for the homeless ; access to essential services

1. What is the Pillar The Pillar stricto sensu 5/16 Launched by the European Commission in April 2017 Recommendation and Communication, Article 292 TFEU Now adopted by all EU Institutions Inter-Institutional Proclamation of 17 November 2017, Gothenburg Declaratory Not legally binding on the EU or MS Repackaging or consolidation exercise range of social rights and principles contained in different instruments with various addressees are assembled in a single document, politically endorsed as a whole by the EU, including the MS in the Council

1. What is the Pillar The Pillar sensu largo 6/16 Best understood not as a static one-off initiative defined by the 20 core rights and principles, but instead: As a dynamic process, still on-going and evolving Comprising the 20 principles but also the implementationmeasures that deploy the EU s full regulatory and governance arsenal Legislation, e.g.: Work-Life Balance Directive Transparent and Predictable Working Conditions Directive Creation of a European Labour Authority Soft law, e.g.: Recommendation on Access to Social Protection European Semester Funding Most like an Action Plan , akin to the 89 Community Social Charter & Action Programme

1. What is the Pillar The Pillar sensu largo 7/16 The 2018 Commission Staff Working Document Monitoring the implementation of the European Pillar of Social Rights provides an overview of the Pillar in this broader sense dozens of related initiatives ranging from CSRs on minimum wage to a proposed Regulation on a pan-European Pension Product, from a proposal for a Recommendation on promoting common values, inclusive education, and the European dimension of teaching to a proposal for a Regulation to strengthen EU cooperation on health technology assessment, etc Some loosely, some intimately, connected to the Pillar s themes Some new, some old, initiatives For all, arguably relevant that they are mentioned in the Pillar s context, since this may impact their conceptualization, negotiation, adoption, interpretation, etc

1. What is the Pillar The Pillar sensu largo 8/16 The Pillar s most important implementation measures : Pre-Existing Proposals Proposal (2008) for a Council Directive on implementing the Principle of Equal Treatment between Persons Irrespective of Religion or Belief, Disability, Age or Sexual Orientation Proposed (2012) Gender Balance on Boards Directive Proposal (2015) for a for a European Accessibility Act Replacements Proposal for a Work-Life Balance Directive to replace Maternity Leave and Parental Leave Directives Proposal for a Directive on Transparent and Predictable Working Conditions replacing Written Statement Social Scoreboard replacing the Scoreboard of Key Employment and Social Indicators New measures Proposed Recommendation on Access to Social Protection for Workers and the Self- Employed Proposal to establish a European Labour Authority

1. What is the Pillar Ambiguities 9/16 Blend of old and new Makes it difficult to establish the Pillar s content with precision Uncertainty integral to the fluid nature of the Pillar sensu largo, empowering the Commission as policy entrepreneur Position of working time and posting? While the interpretative communication on the Working Time Directive is mentioned as one of the 4 signature Pillar implementation measures, this social right of fundamental importance laid down in Article 31(2) EU Charter is curiously absent from the Pillar stricto sensu Revision of Posting Directive is a major achievement and part of Juncker s Triple A Social Rating for the EU , but has been presented as separate from the Pillar Territorial scope Primarily conceived for the euro area Recommendation: applicable to all Member States that wish to be a part of it Inter-Institutional Proclamation: addressed to all Member States Implementation applicable to all MS

10/16 2. THE PILLAR IN CONTEXT

2. The Pillar in Context EU Better Regulation 11/16 EU Better Regulation Agenda has been around in various incarnations for several decades Became particularly important in the social field under previous Commission (e.g. Hairdressers Agreement) Several rationales can be discerned: (i) improving the quality of EU legislation, (ii) reducing the quantity of EU legislation, (iii) increasing public participation in the legislative process, (iv) promoting science-based governance, and (v) enforcing the subsidiarity and proportionality principles Concern about the socialcost of Better Regulation (Better Regulation Watchdog of 50 civil society groups): biased methodology of cost-benefit analysis, laborious ex ante and ex post evaluation exercises of the social acquis Pillar is a sea change: turns Better Regulation Agenda on its head REFIT evaluations used to support the proposal of new, upgrading, social legislation Pillar sensu largo can be understood as a giant REFIT evaluation of the international, EU (and national) social acquis, including proposals how to plug the holes in the floor of social rights

2. The Pillar in Context Relationship EU and International law 12/16 EU social acquis operates alongside international social acquis European Social Charter (Council of Europe) ILO Conventions Past decade: high-profile conflicts between EU and international law in this area EURO-crisis measures: Greek reforms imposed by MoU s condemned by Committee of Social Rights and ILO Internal Market case law (Viking and Laval) Swedish Lex Laval condemned by Committee of Social Rights and Viking doctrine condemned by ILO Pillar is an olive branch: Does not directly resolve the conflicts But acknowledges importance of international acquisand integrates it as benchmarks for the Pillar s implementation (encouraging MS to sign/implement international measures) Pillar has rekindled relations Both Council of Europe and ILO have welcomed the Pillar and engage with it actively

2. The Pillar in Context the market and the social in the EU 13/16 Same areas (Euro-crisis/economic governance and internal market) are also where a problematic imbalance between themarket and thesocial lies internally Pillar sensu largo does increase social output of the EU, reviving the use of the Social Title in the TFEU (thus resolving an important dimension of socialdisplacement cf. Kilpatrick or the EU s social crisis of regulation cf. Barnard) But the most important social decisions continue to be taken, to anti-social effects , in economic governance and the internal market While the Court has adjusted its stance in posting (Elektrobudowa, Regiopost) the internal market freedoms continue to receive precedence over labour protections in other areas (Com v Spain port labour, AGET) and while the Posting Directive has been revised, other initiatives could torpedo a socialized internal market (e-services card) While the Pillar promotes the use of the Semester to implement aspects of the Pillar, overall the process still needs to shift the narrative from austerity to social investment in social rights and standards, and finance adequate and sustainable welfare states through tax justice and progressive taxation (cf. Poverty Network)

14/16 3. CONCLUSION: THE PILLAR S SIGNIFICANCE

3. Conclusion The Pillar s Significance 15/16 The Pillar does not, and cannot, address all of the EU s social challenges and shortcomings In particular, it cannot undo the damage done in its EURO-crisis governance, nor does it fundamentally alter the internal market doctrines at the heart of the EU s constitutional imbalance between themarket and thesocial But, if considered in its broader sense as an Action Plan, it does significantly boost the EU s social credentials in a time where the EU needs a positive post-crisis narrative It has put a surprising social spin on the Better Regulation Agenda that was threatening to erode the social acquis It has rekindled the EU s relationship with the ILO and Council of Europe If effectively implemented, it will help rebalance the EU s output by reviving the use of the Treaty s Social Title, significantly improving the level of social protection of many European citizens It may influence the upcoming European Elections, but also depends on it

16/16 Thank you for your attention COMMENTS WELCOME: SACHA.GARBEN@COLEUROPE.EU