Effective labour rights in the EU: towards a fair enforcement ecosystem

1. Introduction

Professor Bob Hepple used to say that social rights can be ‘like paper tigers, fierce in appearance but missing in tooth and claw.’ ¹ This is often true of national social rights, but it can more often than not also apply to supranational standards, as typically – and with the notable, if qualified, exception of the EU – most supranational legal systems, international or regional, do not benefit from dedicated, effective and well-resourced enforcement mechanisms. Enforcement, it would seem, is a prerogative of statehood, that nations and governments are disinclined to share or casually devolve to supranational organisations, bureaucracies, and courts, especially in the domain of social rights, a domain that continues to engender in the general population a unique degree of allegiance to one's (welfare) state.

European integration experts recognise that the story is a rather different one when it comes to the EU. Right from the outset, the Treaty of Rome provided for a series of supranational mechanisms ensuring the monitoring, uniform interpretation, implementation and the enforcement of European standards. The Commission, as the ‘Guardian of the Treaties’, played a key role in this respect and it is fair to say that the CJEU has, through its own hard graft, managed to consolidate its position as central to both the systems of centralised and decentralised enforcement currently in place. From the ‘incomplete contract theory’ to ‘solving collective action problems’, there is no shortage of political science theories explaining the sui generis enforcement framework applying to EU law. ²

Of course, to begin with, there were few if any social and labour rights to enforce, the main focus being the creation of a common market. But when Europe's social profile started to emerge, it benefitted from that sophisticated apparatus developed for that purpose. In turn, the enforcement of the social acquis also contributed to the development of EU law. I will have not escaped anyone's attention that some of the key CJEU-made legal doctrines that have made EU law uniquely effective, from Van Duyn ³ to Defrenne, ⁴ from Francovich ⁵ to Kobler, ⁶ Mangold ⁷ and the more recent K.L., ⁸ were developed in disputes and references that dealt with workers’ rights. Undoubtedly, the allegiance-building qualities of social rights and policies were well known to EU institutions, including the Court, as much as to national ones.

While this article explores possible future trajectories for the effective enforcement of EU social and labour rights, it is important to highlight some aspects pertaining to the (recent) past and present of the EU and national enforcement architecture of this policy area.

As discussed in the following section of this article, more recent trends regarding the enforcement of the EU social acquis suggest, on the one hand, a small but noticeable decline in the number of infringement procedures in the social policy field and, on the other hand (but no doubt partly in connection with the previous point), a noticeable diversification in the palette of soft-enforcement and nudging-oriented activities promoted, in particular by the Commission, for instance in the guise of Guidelines or EU Pilots, ‘peer-exchange’ (and peer pressure) and, perhaps, the occasional behind the scene ‘honest exchange’ between EU and national bureaucracies.

Section 2 of this article elaborates a bit more on these more recent developments and places them in the context of the more general system of enforcement (centralised and decentralised) of the EU, with some reference, in particular, to the enforcement of the social acquis.

Section 3, however, suggests some caution against too eagerly or prematurely embracing an enforcement narrative that seeks to squeeze the re-regulatory efforts in this social policy domain into any pre-existing enforcement matrix, perhaps one borrowed from other EU law and policy domains, such as environmental, consumer, or competition law. There are some important peculiarities to EU social law that, the article suggests, require caution and should suggest that merely transplanting ‘alien’ enforcement parts into the (sophisticated) body of Social Europe could lead to a ‘rejection’ or at least to strong reactions.

The reasons for that, the article argues, are twofold. Firstly, social policy is an area where national law remains of a fundamental importance, in spite of the visible emergence of a growing list of transnational areas of common interest that, admittedly, can be better addressed by supranational action or through supranational coordination. The bulk of EU labour and social law is contained in Directives. Directives are of course EU instruments but, ultimately, they are implemented through domestic implementation, domestic law, and the provisions they contain become and are domestic provisions, therefore requiring domestic enforcement. Other EU policy areas characterised by a greater presence of regulations or primary legislation, for instance the functioning of the single market, but also increasingly environmental law, may well rely on very different methods of enforcement.

Secondly, we are currently at a very crucial juncture in respect of one of the most transformative initiatives ever to materialise in the trajectory of Social Europe: the Pillar. The Pillar has delivered and is continuing to deliver in terms of regulatory instruments fleshing out its 20 Principles.

This has resulted in almost two dozen new instruments – hard and soft – and initiatives being adopted. In a relatively short time span, the social acquis has almost doubled in size, but what matters most is that it has also taken a dramatic qualitative leap in terms of the content and characteristics of some of the measures and initiatives adopted.

The success of the Pillar will not be judged on it delivering new instruments alone; it will also be judged on these instruments being properly delivered upon. That is to say, properly implemented and also – and crucially – properly supported – in terms of ‘policy delivery’– by national authorities. By that, I mean that some instruments contain important provisions that are not, by their nature, clear, precise, and unconditional legal rights amenable to traditional forms of judicial (courts, national and CJEU) or administrative (national labour inspectorates, with some role for ELA for transnational issues) action. They require a different form of administrative and political delivery, with national bureaucracies performing a crucial supporting and auxiliary role (think about the objective of reaching 80% collective bargaining coverage set out in Article 4 of the Adequate Minimum Wages Directive (AMWD). ⁹

Section 4 attempts to pull together the arguments developed in the earlier parts of the article, by suggesting a possible way of streamlining enforcement mechanisms that are diverse and getting sparser than ever, in a way that would both address the specificities of EU/national social law and the increasingly diverse EU/national enforcement ‘ecosystem’. Section 5 concludes.

2. The (evolving) enforcement architecture of social Europe

The present section briefly recaps how the traditional EU enforcement architecture operates, and how it has developed and changed in more recent years.

In the first few decades of European integration, we used to see this architecture as primarily based on a two-pronged system of ‘centralised’ and ‘decentralised’ enforcement. ¹⁰

Briefly, the centralised mechanism was the one currently found in Article 258 TFEU and following, with the traditional administrative side of the process initiated by the Commission (Member States have never been too keen on pointing fingers at other Member States – for the obvious reason that you do not throw stones in glass houses), sometimes as alerted by individual complainants, eventually – but not necessarily, as we know that the striking majority of national authorities made adjustments following the exchanges with the Commission - developing into a judicial process managed by the CJEU. This is the classic and orthodox enforcement mechanism as designed by the Treaty drafters, where the Commission acts as the Guardian of the Treaties.

The decentralised mechanism is the one that, one individual reference at a time, developed through the strategic use of the preliminary reference procedure, under what is now Article 267 TFEU, a procedure that is exhaustively and painstakingly explored by Professor Koukiadaki in an article published in this special issue of the ELLJ.

Thanks to three important factors, namely, (i) the development of an ‘ECJ-national courts axis’; (ii) the eagerness of junior courts in particular to send references in order to bypass established precedents ossified by more senior jurisdictions (the so-called ‘dual parent theory’) and, conversely, the eagerness of senior courts to use the ‘acte clair and acte éclairé’ doctrines ¹¹ and decide things autonomously and in a decentralised fashion; (iii) and thirdly, the strategic use of the Court's procedure by individual litigants in certain Member States, by companies, consumers, and workers in particular, the preliminary reference procedure became an essential part of the traditional, decentralised enforcement architecture of the EU. In a way it became almost a route to circumvent the strictures of the ‘action for annulment’ procedure and the Plaumann test under Article 263 TFEU. Following the creation of EU doctrines such as supremacy, direct and indirect effect and state liability ¹² etc., references sky-rocketed and have kept increasing more or less steadily since. ¹³

This is particularly the case in the social policy area. In 1997 there were 16 preliminary references in the field. ¹⁴ A decade later, in 2007, this number had doubled, to 32. ¹⁵ By 2017 the number of references had risen to 43, ¹⁶ oscillating in that region since then, but declining to 26 in 2023. ¹⁷

However, it should be noted that declarations of infringement before the CJEU against Member States have actually more visibly declined from 30 in 2018 to 17 in 2022, ¹⁸ nearly halving in the last five years. New direct actions (which include both infringement procedures and actions for annulment) before the Court have also declined from 63 in 2018 (there were 210 in 2008) ¹⁹ to 37 in 2022 (there were even fewer in 2021 - a meagre 29). ²⁰ The Court does not publish fine grained, disaggregated data, about infringement decisions in the social domain, but we know that in 2022 there was no new direct action in the area. ²¹

These data require some additional explanation.

Firstly, it is possible to presume that the adoption and subsequent implementation of genuinely new social policy and labour law Directives in the early nineties, following the Social Policy Protocol in 1991, may partly explain this rise in preliminary references, and possibly direct actions, around and immediately following that period, as does enlargement in the early years of the 20th century. But the rise can be explained only to a limited extent, as the courts of the ‘new’ Central and Eastern European Member States, especially the junior ones, were not as keen on making references as those of older Member States.

Secondly, on the administrative enforcement side of things, a further statistical pattern is of great importance: the Commission progressively reduced the number of infringement proceedings it initiated, with Hartlapp and Falkner reporting that the Commission did not initiate infringements in 51% of the cases in which they identified non-compliance in the area of social policy. ²² Fewer infringement proceedings meant that, in the longer term, fewer of them would progress to the judicial stage, especially considering the historically high level of compliance of national authorities with this part of the process.

Political scientists have explored the causes for this decline. Kelemen and Pavone argued in 2021 that the Commission's strategic behaviour reflects a deliberate prioritisation of ‘conciliatory political dialogue over rigorous law enforcement’, ²³ with the Commission having to balance the pressure it exerts on the two levers it has been assigned by the Treaties: their Guardian, but also Engine of Integration – turning a blind eye can sometimes go a long way towards cajoling recalcitrant Member States in the Council. Other scholars have also linked such trends to diminishing Commission resources in the area of enforcement. ²⁴

But, to be clear, percentages on their own are not in and of themselves all-explaining. Absolute numbers matter too. In 2021, Unterschütz noted that ‘[s]ince 2012 nearly 800 cases in the area of employment, social affairs and inclusion have been taken up by the Commission, and about 10 per cent of them concern OSH Directives, working time, equal treatment or the coordination of social security systems’. ²⁵ The Commission statistics from last year point out that 48 new infringements were opened in this area in 2021 (receiving 544 complaints), some 17 of them dealing with late transposition of new instruments, and overall nearly 90 infringements were still open at the end of the year. ²⁶

Other scholars have also recognised that, since ‘the early 2000s the Commission established specialised platforms to address societal complaints (e.g., EU Pilot) and resolve internal market disputes between businesses and citizens (SOLVIT) through structured dialogue with national bureaucratic institutions’. ²⁷ A 2021 study by Cheruvu & Fjelstul ²⁸ showed that EU Pilot has improved the efficiency of the infringement procedure by reducing accidental non-compliance, while allowing the Commission to focus more of its resources on intentional law violations. In 2021 there were 20 pilots open in the social policy field, with average resolution rates being around 70%–80% depending on years.

But, in the social sphere, another significant development since the late 1990s - and more markedly since 2000 - has been the establishment of the Open Method of Coordination, and the launch of what Csilla Kollonay recently referred to as ‘Soft Methods of Enforcement of European Labour Law Standards’, ²⁹ under various guises, the EES, the Lisbon Agenda, the Agenda Europe 2020, and more recently, as discussed in the next section, the Social Pillar monitoring process. However, it is important to address the elephant in the room: these methods (especially during the ‘Austerity years’) and their association with the European Semester and the development of largely deregulatory Country Specific Recommendations in the employment policy, but also the social policy, field have received a lot of (deserved) bad press. But one of its innovative, and overall positive, traits of the OMC in this domain is that it has created a vertical forum of exchange between national bureaucracies and the EU bureaucracies involved in these processes, as well as a horizontal process of mutual exchange and mutual learning and peer pressure between national bureaucracies themselves. Outward looking devices, such as scoreboards, and very private meetings between officials complete that picture. Now in its third decade, the OMC can and should be delivering some social dividends.

Finally, and just for the sake of completeness before moving to the next section, it is important to mention the creation in 2019 of the European Labour Authority (ELA), admittedly with a very specific and perhaps even narrow mandate, and the adoption in 2014 of the Posted Workers Enforcement Directive 2014/67/EU (PW Enforcement Directive). ³⁰ Arguably, neither of these have yet had a noticeable impact on the ‘general enforcement’ of EU social policy, but then they are not horizontal or general instruments, but specialist and sectoral ones.

The ELA has yet to reach its full operational capacity, has limited resources, and its competencies are limited to essentially cross-border labour matters and social security rules. But two things need to be pointed out. The ELA has already made inroads in improving capacity-building within national level administrations and it has already started interpreting its mandates broadly, as noted by IWS researchers Blauberger and Hendelmeier ³¹ by reference to its recent ‘report on the implications of telework for social security’ in the aftermath of Covid-19 and its increasing interest in ‘the employment conditions of third-country nationals on the European labour market’. ³² A review of its competencies is due in 2024. While we could hope for, and even expect, a progressive expansion of its remit and resources, it is important to remind ourselves that EU Social policy is primarily contained in Directives – i.e., instruments containing rights, duties, and regulatory objectives that are ultimately destined to become ‘national law’, and whose enforcement ultimately lie with national authorities. The ELA's remit is therefore constitutionally constrained to genuinely cross-national and supranational (‘federal’) matters.

As for the PW Enforcement Directive, it represents an important precedent – in the sense of being a first dedicated enforcement instrument in the social policy sphere (even though, strictly speaking, its legal bases are Articles 53 and 62 TFEU). It is worth noting that last year the Commission launched infringement procedures against 24 Member States to bring various national provisions into line with the Enforcement Directive on Posting of Workers. ³³ Therefore, the ‘enforcement of enforcement’ is both important and possible.

So overall, and to recapitulate, we have seen some significant changes in the enforcement of EU law and EU social regulation in the last few years. The role of the Court remains important, and there are still signs of both decentralised and centralised enforcement. Efforts have been made to rein in preliminary reference procedures, but the reality is that pressure in that domain continues, and in a way this is also quite liberating for the EU Commission enforcement officials – national courts and national litigants are also Guardians of the Treaties.

There are some signs that the rise of Article 267 TFEU references in the social field is slowing down, but we are still talking about 45-ish references/year (excluding the far less impressive data of 2023).

Greater efforts have been made on infringement procedures, by boosting the pre-judicial phase in a number of ways (including possibly through the use of discretion by the Commission) and numbers here have been tapering down more visibly, in-spite of the EU expanding to 28 (now 27) Member States, with clear indications that more is being done in the pre-judicial and pre-pre-judicial stages.

Political scientists like Pircher and Loxbo, looking at compliance and non-compliance data on single market rules between 1997 and 2016, have highlighted the positive development that the different regional/national attitudes towards non-compliance (e.g., between the ‘compliant Scandinavians’ and the ‘negligent’ Greek, Portuguese, and French) are also beginning to attenuate, that overall EU Member States are becoming more compliant, and this also because of the rise of dialogue based mechanisms such as EU Pilots and SOLVIT, and the expansion of enforcement powers of EU bodies, judicial and specialist. ³⁴

Much of this is also visible in the 2023 Commission Stocktaking Report ³⁵ on the Commission's Working methods for monitoring the application of EU law – a comprehensive and innovative document in its own right offering a novel narrative around the idea of enforcement as an emerging ecosystem of processes. Within that palette of measures, strategies and actions, one of the most innovative developments (and arguably, one of the most promising ones) comes from a new dynamic that joins together these developments with the rise of OMC, the establishment of the ELA and the adoption of the PW Enforcement Directive: administrative cooperation. The following section explains why this is particularly important in the current juncture of Social Europe.

3. Delivering on the European Pillar of Social Rights and effective ‘policy delivery’

This section seeks to highlight that these positive trends leave no room for complacency (effective enforcement remains a priority), but also demand a sophisticated approach that acknowledges the peculiarities and complexities of the EU/national social acquis. The EU and EU Social policy, in particular, are at a delicate juncture. Having delivered on the adoption of most of the Social Pillar's measures, they now have to implement them. There is no doubt that the bulk of this implementation effort will lie with national parliaments tasked with transposing EU provisions into domestic law. All of the new Directives contain provisions that are perfectly amenable to this type of traditional implementation exercise, and some confer rights that could be understood as sufficiently precise and unconditional as to be amenable to the specific legal effects (and judicial enforcement under the CJEU-national court axis, or simply through domestic judicial action) discussed by Aristea Koukiadaki in her article in this journal.

But many of these instruments are, it could be argued, game-changers compared to previous Directives that were adopted mainly in the 1980s and 1990s and that have been at best updated (which may also explain the better compliance rates of recent years, as it is easier for domestic legal systems to adjust to revised instruments with which they are already somewhat familiar, rather than to properly implement entirely new ones).

Transposition and implementation will be crucial to the success of the Pillar. But, even more so that in the past, and due to the innovative and transformative nature of these instruments that do much more than merely providing directly effective legal norms, a distinct effort will have to be made in an area we are not used to in making such an effort in EU labour law: policy delivery. This is a point worth elaborating further.

In 2014 at the EP, President-Elect Juncker suggested that Europe should achieve a ‘triple-A on social issues’, ³⁶ and not just in terms of the financial rating of its economy or bonds. The rhetoric aside, it was clear that a decade of adverse CJEU decisions (from Cases C-438/05, Viking and Case C-341/05, Laval to C-201/15, AGET Iraklis), austerity policies, and labour market deregulation had tested the loyalty of millions of European citizens (and voters) to the European project. ³⁷ The rise of populism, anti-EU sentiment and Brexit were clear manifestations of this disenchantment - a disenchantment that was not just threatening the ‘Death of Social Europe’, but also the death of Europe as such.

To cut a long story short, one could say that the main response to Social Europe flatlining came in 2017, with the adoption of the EU Pillar of Social Rights, a seemingly underwhelming ‘soft law’ declaration, part-Charter part-White paper, setting out 20 key principles but also, in effect, a regulatory agenda on which the EU, and the Commission, were called to deliver.

Fast forward to 2024, and it is possible to argue that the Pillar has delivered on many of its promises. In terms of legislative or regulatory instruments, the Pillar has hitherto produced no less than two dozen instruments (including some soft instruments such as Recommendations and a few guidelines). These include new Directives on transparent and predictable working conditions, on work-life balance, on adequate minimum wages, gender pay transparency and more. These are new instruments, not updates or recasts. And they do not just set out new rights; they also set out new processes in the pursuit of those rights.

Take, for instance - and this is probably the best example, but not the only one - Article 5 of the AMWD (EU) 2022/2041, aptly entitled ‘Procedure for setting adequate statutory minimum wages’. Its ultimate objective is to ensure that all minimum wages meet a double decency threshold but, as the heading suggests, it will require the adoption of a minimum wage-setting machinery, with a great deal of public and administrative resources being dedicated to the task. And what about Article 4 of the same Directive, seeking to ‘promote collective bargaining and wage setting’ with the aim, ultimately, of achieving 80% coverage? Delivering on this Article will require a phenomenal amount of expert resources, administrative facilitation, and bureaucratic support. At the time of writing a significant number of the Member States (and many social partners) are not ready to deliver on this front, and, at the very least, some are way behind others.

Another example is the Pay Transparency Directive (EU) 2023/970. ³⁸ Surely enough, it contains some new rights and updates some pre-existing definitions. But if one looks at the role that equality bodies and public authorities have in delivering on these rights, the role for public procurement, the horizontal provisions in Chapter IV, then this instrument reveals itself as the genuine novelty that it really is, along with the challenges that it will pose in terms of policy delivery and administrative effort. This is arguably even more obvious in the case of the new Equality Bodies Draft Directive 2024/1499.

It would be possible to continue with other examples from other recently adopted EU instruments, but the general point here is that there is something new in terms of the burden these instruments place not just on Courts (in terms of new rights) but also on ‘policy delivery’, and especially on public administrations – on Member States and on branches of the executive. This is all new, and it is all crucial to the success of the Pillar and to the new social contract it underpins in European politics.

This is a point worth elaborating further. Paragraph 17 of the Pillar states that ‘Delivering on the European Pillar of Social Rights is a shared political commitment and responsibility’. These are not anodyne terms and, so far, they have been taken seriously by all the main political families and traditions present at the EU level, certainly by the Socialists, the Christian Democrats, most Liberals and (as one would imagine) by the European Left and the Greens.

One could go as far as to say that between 2017 and 2024, delivering on the Pillar at the EU level – more broadly delivering on Social Europe – has reached a degree of bipartisan consensus that is unprecedented and certainly not present in national politics, where social and labour rights are still contested policy areas, where left and right take very different approaches.

This new European consensus, and the stark contrast with national politics, could not be more visible than in the previous term of the European Parliament as well as the previous cycle of the EU institutions. Some of the most socially ambitious and transformative Directives (such as the AMWD, or the Pay Transparency Directive) were supported and endorsed by the likes of Messrs. Macron and Sanchez, Ms Von der Leyen and Mr. Nicholas Schmit, Bavarian Christian Democrat MEPs and Portuguese Communists. All these very diverse political figures walked the line with a surprising degree of discipline and even enthusiasm. Well into 2024, the EU Commission's EPSR site included statements by Mario Draghi saying ‘We have to enshrine the Pillar's targets and milestones in the European Semester’, and Emmanuel Macron going on record by stating ‘As Europeans, we are shaping the answer to the crisis we are facing: a social response, in line with our values’. This is, of course, the same President Macron whose pensions reforms brought scores of trade unionists and common citizens (almost?) out rioting in France in the spring of 2023.

It is arguable that around 2016, EU political leaders realised that what is often referred to as neoliberalism and austerity had not just brought about what Keith Ewing termed the ‘Death of Social Europe’, ³⁹ but had generated new populist pressures that risked derailing the European project as a whole (best exemplified by Brexit). The Pillar openly (perhaps timidly) acknowledged that by noting that ‘the social consequences of that crisis have been far reaching’ (para 10, Preamble). The big political families of European politics saw a revamped social Europe as an answer to these tectonic pressures – through the Pillar.

But the instruments adopted under the Pillar need to be delivered upon for the new Social Contract to be executed and fulfilled, as opposed to it being perceived as pure theatrics.

And delivery, for most of these instruments, will mean both legal implementation at a national level (and here Courts will need to revive their axis with the CJEU as there are plenty of new instruments and new rights to work on) but also, and apologies for using these two words a bit too much, it will mean ‘policy delivery’ at a national level.

This will happen primarily in the current political cycle of the EU, following the June 2024 European Elections. Politicians have talked the talk in Brussels, but will they walk the walk in Athens, Rome, Paris, and Prague when it comes to properly delivering on these instruments in the coming years?

Delivering on a new Social Europe will require an unprecedented degree of both judicial and administrative cooperation. We are at a crossroads.

4. An enforcement ecosystem for Social Europe

The 2024 Commission Work Programme entitled ‘Delivering Today and Preparing for Tomorrow’ ⁴⁰ offered important reassurances that enforcement remained a priority for the EU. The very first substantive section of the Work Programme referred to ‘Better Regulation, implementation and enforcement of EU law’, expressly stating:

‘For people and businesses in the EU to enjoy the full benefits of our commonly agreed rules, EU law must be implemented and applied in a full, timely and correct manner across the Union. That is why the enforcement of EU law is a priority for this Commission.’

Following the June 2024 elections, and the constitution of a new Commission, it is unclear whether these commitments will be maintained.

Should that be the case, there are three key areas for potential development and coordination, as well as a political acceptance that an effective enforcement of the social acquis will require an ad hoc regulatory effort, and one that goes beyond mimicking or recycling other (perhaps effective) enforcement architectures serving other EU policy areas such as consumer law or even competition law. It will require the development of a genuine ‘enforcement ecosystem’, in the sense of a dynamic complex of a range of enforcement tools, instruments and strategies, both national and supranational, interacting as a functional and coordinated enforcement unit.

Firstly, it can be argued that delivering on the Pillar, and on Social Europe more broadly, will require facilitating the emergence of the administrative equivalent of what lawyers and political scientists have called ‘the CJEU-national court axis’. Europe needs a new axis to emerge alongside the judicial one. It needs and ‘EU-National administration axis’ and that axis, which already exists but is too patchy, fragmented, and under-resourced, needs to be much more coherent, consistent, and coordinated. ⁴¹ It is worth noting that there are areas of EU law, such as single market regulation ⁴² or competition law, ⁴³ where such discrete forms of enhanced administrative cooperation between the EU and national bureaucracies and authorities already exist and also encompass the identification of barriers to policy implementation, as well as legal enforcement. We have entered a new phase of Social Europe, where processes are more essential than ever before, in order to ensure the fulfilment of rights. The EU and Member States, if they are seriously committed on delivering on the Pillar, need to acknowledge this change and perform accordingly.

The Pillar already has its own Action Plan that places a key role on open method of coordination administrative processes to deliver on its promises, with a social scoreboard, etc. Some questions, and some anxiety, remain over whether Country-Specific Recommendations will remain the positive force for social change they have been in the last couple of years, once the new EU Economic Governance rules adopted early in 2024 are formally enacted. But this is clearly an area that the EU needs to look at closely and develop strategically and into something bigger.

Secondly, the ELA has to be seen by the EU and by those Member States that are serious about social Europe as the other main strategic player in the EU-National Labour Administration Axis. Just as the Pillar Action Plan provides the bureaucratic context and forum for the exchange of guidelines, the ELA needs to provide the administrative enforcement arm for those processes and the rights they deal with, especially – though not exclusively – in an axis with national inspectorates (in unison with the Commission performing its more traditional role and dealing with the relevant ministries). ⁴⁴ But it will be crucial not to overburden the ELA with expectations and responsibilities that can only be dealt with by national authorities (for the constitutional reasons explored above).

Unlike consumer protection, whose overall legal framework was effectively designed, developed, and delivered by the EU some three decades ago (to a certain extent on the model provided by a couple of more ‘virtuous’ Member States), social and labour law have a long national history, national institutions, and national social structures involved as crucial parts of the implementation and enforcement equation.

So, what can be replicated from other policy areas needs to be taken with a pinch of salt, acknowledging the specificities and sensitivities involved in the EU and national social acquis. It would be best to empower national institutions, and where necessary coordinate their action, and most importantly ensure (including through EU level obligations) that they are granted ‘a sufficient number of qualified staff and sufficient financial, technical and technological resources’, as in the domain of competition law (see Dir 2019/1, Article 5). It is worth noting that while according to the ILO technical services benchmark, the number of labour inspectors in relation to workers should approach 1/10,000 in industrial market economies, ⁴⁵ a substantial number of EU and OECD countries falls below that standard. ⁴⁶

This brings us to the third issue, namely, enforcement narrowly understood. The Posted Workers Enforcement Directive has opened our eyes to the fact that the EU both can and should do more than setting substantial rights. It should also set enforcement procedures. This is an important precedent, and should be expanded upon. More recent EU Directives adopted under the classic Article 153 TFEU legal basis (e.g., the recently agreed Platform Work Directive) do not shy away from introducing bold and innovative ‘remedies and enforcement’ provisions. The recent draft 'Traineeship Directive (COM(2024) 132 final/2) is perhaps the high watermarak of this regulatory approach emphasizing the importance of remedies and enforcement procedures.

While ‘national procedural autonomy’ ⁴⁷ remains a general principle of EU Law, subject to the principles of ‘equivalence’ and of ‘effectiveness’, ⁴⁸ from the Burden of Proof Directive 97/80 to the Employers’ Sanctions Directive 2009/52, and of course the Posted Workers Enforcement Directive 2014/67, the EU has successfully relied on a range of different legal bases, beyond Article 153 TFEU, to carve a broad competence for the minimum harmonisation of procedural remedies in the social and labour sphere. This competence includes but goes beyond the original ‘market distortion and market functioning’ rationales set out in Rewe, ⁴⁹ and currently embodied by Article 114 TFEU. As noted by Arnull, the EU legislature has often relied on Article 114 TFEU to adopt fairly detailed procedural and remedy focused Directives, including in the domain of consumer protection with a view ‘to compensate for inequality of bargaining power between sellers and consumers’. ⁵⁰ Article 114 TFEU would certainly be an option in terms of competence for an EU instrument for the effective enforcement of EU labour rights.

It is worth stressing that the general competence of the EU to regulate the area of remedies and procedures has only been strengthened by the adoption of the Charter and of Article 47 in particular, establishing that ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal’. The fundamental rights status of this provision renders the right to an effective remedy ‘hierarchically superior to the principle of national procedural autonomy and potentially more muscular’. ⁵¹ Prassl correctly suggests that ‘Article 47 CFR may, finally, also come to play a central role in developing alternatives to the individual enforcement of employment rights – whether through collective redress mechanisms, the empowerment of social partners, or domestic labour inspectorates’, ⁵² and that its potential is not limited to judicial enforcement alone, with ‘all organs of the State — including administrative authorities — [being] called upon, within the exercise of their respective powers, to apply EU law’. ⁵³

But here it is worth referring to the proposal for a new Horizontal Enforcement Directive developed by Zane Rasnaca, Aristea Koukiadaki, Niklas Bruun, and Klaus Lörcher in the 2022 edited publication Effective Enforcement of EU Labour Law. It is a proposal that the authors firmly base on Article 153(2)(b) TFEU, since – they argue - its centre of gravity would revolve around the protection of working conditions, ⁵⁴ a base that would have the added benefit of allowing for the European social partners to engage with the process under Articles 154 and 155 TFEU. Without entering into the details of their proposal, its three key sections focus on ‘Judicial Enforcement’, ‘Non-Judicial Enforcement’ (including a role for the social partners, and of course for administrations) and ADR mechanisms, streamlining various existing EU (and national) enforcement mechanisms and providing a coherent framework for adapting EU enforcement in the social sphere to the realities of Social Europe in the 21st century.

5. Conclusions: possible regulatory options

As this article is being submitted for publication, the Commission President-Elect, Ms Ursula Von Der Leyen, has assigned the social policy portfolio to former MEP Ms Roxana Mînzatu, with a specific request to ‘steer work to reach our 2030 social headline targets. You should frame this work in a new Action Plan on the implementation of the European Pillar of Social Rights to be presented in 2025’. ⁵⁵ Only time will tell whether this (admittedly modest) instruction will provide a peg for eventually developing a comprehensive implementation strategy for the Pillar.

Should that be the case, the EU institutions would be confronted with a series of (possibly alternative, but certainly incremental) enforcement options, especially as far as the judicial and non-judicial enforcement limbs of a possible instrument are concerned.

Firstly, a minimalist option could consist of reviewing and identifying all the supervision, enforcement, and remedial elements contained in existing EU labour law Directives, and produce a recast enforcement instrument, with a palette of remedies and measures drawn from existing instruments and practices. There is no shortage of interesting and innovative materials that could be usefully collated together.

Secondly, as an add on, this instrument could include a distinct cross-border coordination and enforcement element, based on the Posted Workers Enforcement Directive, which – in a way that would expand its regulatory ambitions – could also contain provisions aimed at coordinating such activities, including with the ELA.

Thirdly, while some of the powers and sanctions contained in the Enforcement and Modernisation Consumer Directive (EU) 2019/2161 ⁵⁶ could inspire such a recast instrument, it is important to point out that several Member State labour inspectorates may already be endowed with powers and penalties that are superior to those available to consumer protection agencies, including powers underpinned by public and criminal law. What they typically lack are the resources to enforce these powers, but here EU Law could usefully contribute by guaranteeing that EU countries’ national labour authorities have the necessary independence, resources and enforcement and fining powers that are necessary to effectively enforce labour and social standards (or at least those stemming from EU law – which would assist in terms of competence but would create an undesirable and impractical two tier system). It has done so for competition authorities with Article 5 of Directive (EU) 2019/1, ⁵⁷ in a way that many see as satisfactory, and I would suggest that this is an approach also worth exploring. To note that in Italy, the same national authority in charge of competition enforcement and market surveillance is also responsible for consumer protection, the latter benefitting indirectly from the resources granted to competition and market enforcement. Clearly, such an instrument should also be tasked with genuinely harmonising the remedies and their effective enforcement, including the competences and powers conferred to the various labour and health and safety inspection bodies. It is important to note, as mentioned previously, that the bulk of EU labour law is contained in Directives, which once properly implemented, produce labour standards that are national in character and enforceable at a domestic (rather than translational or cross-national) level by domestic actors.

Fourthly, the question of resources is of central importance for those national administrations and central bureaucracies that will be tasked with the policy delivery of some of the key provisions of the ‘children’ of the Pillar, including by means of auxiliary regulation/legislation and supporting practices. This should also become a central preoccupation in the effective implementation and delivery of Social Europe, alongside with a more streamlined and consistent cooperation, both between the different national bureaucracies involved and between them and the EU Commission (a cooperation that could best be achieved by streamlining and focusing further the Pillar Action Plan mechanisms and strengthening further the ESF+ remit). Whether this can be achieved in a climate of macroeconomic and fiscal rigour remains to be seen.

Fifthly, and finally, none of this should affect the energy and resources devoted to the more traditional (but also increasingly complex and nuanced) centralised and decentralised enforcement mechanisms described in the second section of this article.

In reality, an effective delivery of Social Europe requires a new approach to its enforcement, and not just a new instrument. It requires an enforcement ecosystem capable of ensuring that – paraphrasing Article 47 of the Charter – everyone whose labour and social rights guaranteed by the law of the Union are violated has the right to an effective remedy.