Abstract
Has the Lisbon Treaty led to a valorization of social fundamental rights in the EU? This question was the focal point of a conference that took place on 12 October 2012 in Trier, Germany. The conference – entitled ‘Fundamental Social Rights in the European Multilevel Governance System’ – was organized by Monika Schlachter and Johannes Heuschmid of the Institute of Labour Law and Industrial Relations in the EU (IAAEU). The chairs of the conference were Klaus Lörcher and Hellmut Wißmann.
With regard to the protection of fundamental social rights the Lisbon Treaty has brought about two main innovations: first, the legally binding Charter of Fundamental Rights of the European Union (CFREU), which brings together social, economic, civil and political rights, and secondly, the EU’s obligation to accede to the European Convention for the Protection of Human Rights (ECHR). Against this background the key objective of the conference was to bring together distinguished keynote speakers, academic experts and practitioners from across the EU to reflect on the new legal framework for the protection of fundamental social rights in the European multi-level governance system and to explore its potential for development, but also to find out how far this framework may increase opportunities to invoke fundamental social rights in the context of legal proceedings. The notion of multi-level governance refers to the fact that responsibility for policy-making and thus for fundamental social rights protection in the EU is shared among actors at European, national and sub-national level.
The first session of the conference was devoted to the various legal sources of fundamental social rights protection. Egils Levits, judge at the European Court of Human Rights, pointed out that in the European multi-level governance system the protection of fundamental social rights consists of mutually dependent and interacting orders that together form one encompassing constitutional order, namely the CFREU, the ECHR – once the EU has acceded to it – and fundamental rights as general principles of law. With regard to the substance of fundamental social rights he pointed out that these have to be distinguished from classical civil rights and liberties. The latter are aimed at guaranteeing the freedom of individuals to participate in civil and political life without being subject to discrimination and to protect this freedom from unwarranted infringement by the state. Social rights, on the other hand, complement these rights and liberties since they cannot be enjoyed without a certain degree of social security. Fundamental social rights in the form of subjective rights may entitle individuals to refer directly to such rights, whereas fundamental rights included in provisions defining objectives of the state do not endow individuals with rights but oblige the state and its institutions to respect them. The protection of social fundamental rights in the CFREU in itself takes place on the basis of CFREU provisions, international conventions such as the ECHR, the European Social Charter (ESC) and the Revised European Social Charter (RESC), fundamental rights as they result from the constitutional traditions common to Member States and international legal instruments to which the Member States and the EU are signatories.
Levits further stressed the narrow effect of the CFREU on national law due to the fact that its provisions are addressed to EU institutions and to the Member States only when they implement EU law or act within the scope of EU law. Conversely, this means that internal situations are not included within the scope of the CFREU. This gap is filled by national constitutional norms and above all by the ECHR. Colm O’Cinneide, Vice President of the European Committee of Social Rights, stated that fundamental social rights and so-called social state principles are enshrined in nearly all national constitutions, although to varying degrees. He drew attention to an important development, namely, that there is a shift away from the national to the European context, meaning that the interpretation of provisions of national constitutions is influenced by legally binding European human rights instruments, above all the ECHR, but also the CFREU. He also emphasized the importance of international instruments for promoting fundamental social rights in Member States that have a lower level of protection, since national fundamental rights must be in line with European human rights instruments.
Two of these instruments can be found within the domain of the Council of Europe, namely the ESC and the RESC, on one hand, and the ECHR, on the other. Lenia Samuel, Hors Class Adviser to the European Commission, stated that by establishing a regional European system for the protection of social and economic human rights the Social Charters complement the ECHR, which guarantees civil and political human rights. She emphasized the legally binding character of the ESC and RESC at Member State level and stressed the importance of these instruments for developing fundamental social rights in the EU, not least because the CFREU explicitly refers to the ESC and RESC in its preamble, making them integral instruments for interpreting relevant provisions of the CFREU. Angelika Nußberger, judge at the European Court for Human Rights, focused on protecting social fundamental rights within the framework of the ECHR. To begin with, she made it clear that, although the ECHR was not set up specifically to promote social justice, there is wide scope for protecting economic and social rights under the ECHR system, above all in respect of private and family life, freedom of association, including the right to strike, and the prohibition of discrimination. She emphasized that the European Court of Human Rights (ECtHR) treats the ECHR as a ‘living instrument’ and accordingly has developed a new methodology to interpret rights contained in the ECHR. In the cases Demir and Baykara 1 and Enerji Yapi Yol Sen v Turkey 2 the ECtHR defined the substance and content of Article 11 ECHR concerning freedom of association also on the basis of elements of international law other than that of the Convention, namely the ESC, the RESC and the ILO Conventions. The ECtHR stated that although Member States are free to develop their own systems, all such systems must be consistent with international labour standards, irrespective of whether or not the Member States have ratified the relevant Convention. This dynamic approach is of the utmost importance for the development of fundamental social rights protection in the EU since the ECHR forms an important layer of fundamental rights protection.
The second session of the conference was devoted to dogmatic aspects of fundamental social rights protection. It dealt particularly with the interpretation of the CFREU provisions and how legal gaps that arise when different systems of fundamental rights protection overlap can be minimized. Fillip Dorssemont, Professor at the Catholic University of Louvain, referred to the interaction between the different legal sources of fundamental social rights and pointed out that a stronger dialogue between Courts belonging to different levels of governance might be an appropriate means of reconciling fundamental social rights and economic freedoms. In the European multi-level governance system legal standards stem from distinct legal orders, namely the constitutional orders of the Member States, the European Union and the Council of Europe. Each legal order defines its relations to other legal orders and the resulting hierarchies of legal orders can conflict. Potential clashes between legal orders might be softened if legal orders recognize the human rights instruments of other legal orders and more importantly, if these instruments are interpreted in accordance with the legal order from which they originate. Dorssemont made reference to the judgment of the ECtHR in the case Demir and Baykara and stated that not only the ECHR, but also the ESC, the RESC and the ILO Conventions might influence the interpretation of EU secondary law. In addition, he emphasized the importance of EU accession to the ECHR for the protection of fundamental social rights, since the Court of Justice of the European Union (CJEU) would be requested to interpret legal standards in accordance with the interpretation of the ECtHR.
Another important issue dealt with was the potential effect of the CFREU on the application of EU fundamental social rights with regard to legal proceedings between private parties. Achim Seifert, Professor at the University of Jena, pointed out that the CFREU was drafted primarily to govern vertical relationships rather than horizontal ones. The vertical effect of fundamental rights refers to the applicability of fundamental rights in protecting individuals against the EU or Member States. Horizontal effect refers to the ability of fundamental rights to affect legal relations between private parties. He stated that the horizontal effect of fundamental social rights at EU level has to be seen in relation to the right to non-discrimination and equal treatment. In the case-law of the ECJ (Mangold 3 and Kücükdeveci 4 ) only the right to non-discrimination and equal treatment has been given horizontal effect by construing it as a general principle of primary EU law. General principles of law belonging to the EU’s ‘old method’ of protecting fundamental rights have to be distinguished from the classification of provisions made in the CFREU on rights and freedoms, on one hand, and principles, on the other. Accordingly, subjective rights must be respected, whereas principles must be observed. Principles may be implemented by the legislator and they become significant for courts only when the implemented acts needed to be interpreted or reviewed. They do not give rise to direct claims for positive action. In some cases, however, it is fairly difficult to make a distinction between rights and principles, since some provisions of the CFREU may contain elements of both a right and a principle, for example, Articles 23, 33 and 34 CFREU. The task of identifying whether a provision is a principle rather than a right is left to the interpretation of the CJEU, which has not yet addressed the issue.
Stein Evju, Professor at the University of Oslo, focused on the situation brought about by the decisions in the so-called ‘Viking quartet’, 5 in which the CJEU gave fundamental freedoms precedence over fundamental social rights. He stated that with the approach established by the CJEU the foundation of collective labour law – including the right to strike, the right to organize and the right to collective bargaining – is under threat. If this foundation is shaken it will entail shifts in societal power relations and have implications for society’s basic structures. Against the background that these judgments were handed down before the coming into force of the Lisbon Treaty he expressed his hope that the CJEU will re-establish the legal situation, taking into account the innovations in the field of fundamental social rights protection introduced by the Lisbon Treaty.
To conclude, the conference offered up-to-date information on the state of fundamental social rights protection in the European multi-level governance system. Two potential developments seem to be very promising: the possible invocation of the general principles of non-discrimination and equal treatment to overcome shortcomings of fundamental social rights protection within the framework of the CFREU, on one hand, and judicial dialogue between Courts to minimize the risk of gaps in fundamental social rights protection, on the other. The latter aspect will gain even more significance when the foreseen accession of the EU to the ECHR becomes reality. It will open up procedural opportunities to challenge EU law directly before the ECHR. Coming back to the initial question it can be concluded that it is too early to give a final assessment of whether and to what extent fundamental social rights have been valorized. There is no doubt that the Lisbon Treaty has enhanced the protection of fundamental social rights, particularly in comparison to the pre-Lisbon period, but the scale and scope of this protection remain unclear, due to the lack of relevant CJEU case-law.