by Mr Giuseppe Antonio Maria Iuliano, EESC (Employees Group, IT)
1.Economic and social rights as fundamental rights
1.1Economic and social rights are paramount among the fundamental principles of the European Union. They define its identity and are among the prerequisites underlying its legitimacy. The principle of economic and social cohesion is one of the EU's strongest defining features in the framework of international economic and social models. It refers to fundamental human rights, which fully incorporate economic and social rights.
1.2The European Union has assimilated the outcome of a debate that has unfolded over the last fifty years and that recognises the significance of economic and social rights not as collective rights, a defining aspect of ideological view points and political systems from history, but as individual rights, recognised as fundamental human rights under the Universal Declaration of Human Rights, adopted on 10 December 1948 by the General Assembly of the United Nations. More than sixty years after the drafting of this Declaration, an essential reference point for all the nations of the world, the recent financial crisis has highlighted substantial global economic and social inequalities. This is why fundamental individual rights can no longer be restricted exclusively to civil and political rights, but should unconditionally include each human being's economic and social rights. The trends and consequences of economic globalisation, with its potential as well as grave problems for the social systems that it determines across the globe, confirm the considerable validity and efficiency of the principles underpinning the EU's identity.
2.The Charter of Fundamental Rights of the European Union
2.1Economic and social rights now have their legal basis in the Charter of Fundamental Rights of the European Union, drawn up on 26 September 2000 by the 62-member Convention, which included 15 representatives of the Member States, 16 MEPs, and 30 members of national parliaments and the European Commissioner for Freedom, Security and Justice. The Court of Justice of the European Union had observer status, via its representatives, throughout the process leading up to the adoption of the Charter, and the European Economic and Social Committee, the Committee of the Regions and the expert representatives of social groups were asked to set out their assessments in opinions. The Charter of Fundamental Rights was signed and proclaimed by the Presidents of the European Parliament, the Council and the Commission on 7 December 2000 in Nice.. The Treaty of Lisbon recognises its binding legal force on the Union and on all Member States as of 1 December 2009.
2.2The Charter of Fundamental Rights consolidates in a single document civil, political, economic and social rights previously set out in a number of different international, European and national sources. The main legal references for economic and social rights in particular are the UN Universal Declaration of Human Rights of 1948, the European Social Charter of 1961, the Community Charter of the Fundamental Social Rights of Workers of 1989, the statement on the protection of minorities of the Conference on the Human Dimension of the Commission on Security and Cooperation in Europe (CSCE) of June 1990, the European Convention on Human Rights of 1950, the European treaties, the case-law of the Court of Justice of the European Union, and the Conventions of the Council of Europe. The Charter of Fundamental Rights consolidates and develops the "legal corpus" previously drawn up on human rights, and therefore, also on economic and social rights.
2.3Structurally, the Charter of Fundamental Rights of the European Union includes a preamble and 54 articles covering the body of political, social, civil and economic rights that the European Union guarantees its citizens. The preamble states that "the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity". It also recalls the spiritual and moral heritage that drives the European Union's action to share a peaceful future based on common values. The Fundamental rights are then presented by sections such as Dignity, Freedoms, Equality, Solidarity and Citizens' Rights. In addition to the abovementioned universal human principles, the Charter affirms the principles of democracy and the rule of law. It also affirms that the European Union "places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice".
2.4Economic and social rights in fact permeate the whole spirit of the Charter and are explicitly mentioned in all its titles. For instance, in Title I on the principles of respect for human dignity, the first of which states that "human dignity is inviolable", Articles 4 and 5 prohibit slavery, forced labour and trafficking in human beings. Title II, the most substantial, includes fourteen articles on freedoms, including the freedom of assembly and of association. Article 14 on the right to education introduces the right to vocational and continuing training and to free compulsory education. It confers the freedom to choose an occupation and to work and exercise the right of establishment anywhere in the European Union. This right is also extended to third-country nationals authorised to work in the territories of the Member States (Article 15). These rights are followed by recognition of the freedom to conduct a business and the right to property. Equality is the principle underlying Title III of the Charter, which comprises seven articles affirming respect for cultural, religious and linguistic diversity and the right to equal treatment and opportunities in all areas of life and work. Any discrimination is also explicitly prohibited on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientations. A significant part is devoted to the rights of the child (Article 24). Two articles devoted to the rights of the elderly and persons with disabilities seek to promote their social integration and participation in the life of the community. Title IV, comprising twelve articles, concerns solidarity, which it recognises alongside work as a fundamental right of the Union. It recognises the workers' right to information and consultation within the undertaking, the right of collective bargaining and action, the right to strike, the right to protection against unjustified dismissal, the right to working conditions which respect their health and safety, the right to regulate their working hours and to adequate rest periods and leave. It prohibits child labour, defining children as being below the minimum school-leaving age. It recognises the family's right to legal, economic and social protection and protection in cases of maternity, the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave following the birth or adoption of a child. It establishes the right to social and housing assistance and social protection and healthcare for all those who lack sufficient resources, in accordance with the rules laid down by national and Community laws (Article 34). It guarantees the right to public healthcare to ensure a high level of human health protection. Consumers are entitled to access to services of general economic interest and a high level of environmental protection. The eight articles under Title V concern citizens' rights. The rights that constitute economic and social rights include freedom of information, and freedom of movement and residence within the territory of the EU. Title VI, which comprises four articles, concerns justice. The four articles under Title VII first define the field of application of the Charter, specifying that its provisions are applicable to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. With regard to the scope of guaranteed rights, Article 52 provides that any limitation on the exercise of the rights recognised by the Charter must be provided for by law and respect the essence of those rights. Any limitations may be made only if they are necessary and meet objectives of general interest or the need to protect the rights and freedoms of others. Lastly, an article stipulates that nothing in the Charter may be interpreted as restricting human rights and fundamental freedoms as recognised by the Member States' constitutions and international agreements drawn up by the Union.
3.Limitations and potential of the Charter of Fundamental Rights
3.1A wide-ranging debate has evolved regarding the legal value of the Charter of Fundamental Rights. Indeed, despite the fact that when the Charter was adopted the intention of the Commission, European Parliament and some Member States was to include the Charter in the body of EU treaties, the 2000 Nice European Council proclaimed the Charter of Fundamental Rights without incorporating it in the Treaties. The scope of the Charter's provisions was restricted to the acts of the institutions and bodies of the Union and Member States when implementing Union law. Moreover, no provision gave legally binding force to the Charter.
3.2The "codification" of the principles of the Charter of Fundamental Rights of the European Union, with all the limitations attaching to this codification, at least until the recent adoption of the Treaty of Lisbon, presented the need for a precise enunciation and official proclamation of the rights it contained, not to mention exceeding the deadlines concerning the question of the interpretation of social rights (perceived as second generation human rights) and collective rights (third generation) also with respect to the framing of these rights in the context of principles common to all Member States, mentioned in Article 6(1) Treaty on European Union or the rights derived from the common constitutional traditions mentioned in Article 6(3) of the Treaty.
3.3More specifically it should be remembered that the problem of whether or not to consider social rights as fundamental rights has always been solved in different ways in various European constitutional traditions. In Italy's constitutional experience, and to some extent in Germany's, social rights are considered to be inviolable, their value tending towards that of civil and human rights. Common law countries, on the other hand, see social rights in a different light, viewing them as political goals to be met rather than as fully-fledged citizen rights. In such systems, citizens would not be able to seek a legal remedy on the grounds, for example, that they did not have sufficient means to lead a life of dignity. In other traditions (Italy and Germany) there is no clear-cut distinction between "rights" that can be upheld in law and mere stated "principles". Their argument is based on the fact that most social principles (e.g. trade union freedom) constitute the application of "classical" civil rights to working life (e.g. freedom of association) and, as such, they can be fully protected in law. Furthermore, "principles" could be found in other parts of the legal system (e.g. the principle of equality) and courts had often applied them to concrete situations and specific cases. The listing and specific enunciation of the freedoms and rights set out in Title 4 of the Charter, where economic and social rights are specifically concentrated, permit the application of case-law without the need for "extensive" interpretations of the general principles.
3.4The entry into force of the Treaty of Lisbon on 1 December 2009 marked significant progress towards fundamental rights protection and has opened the way for the EU to sign the European Convention for the Protection of Human Rights and Fundamental Freedoms. Above all, the Treaty of Lisbon guarantees the concrete application of the Charter of Fundamental Rights. The European Union has thus acquired a set of legally binding civil, political, economic and social rights not only on the Union and its institutions but also on the Member States in their implementation of EU law. In practice, the Court of Justice of the European Union will henceforth be able to stabilise a process which has so far been based mainly on developing interpretations in order to compensate for the former Treaties' limitations.
4.Economic and social rights in EU external policy
4.1Economic and social rights, as affirmed and upheld in the EU, are key and defining references for all EU relations with other countries. First of all, consistency is required from candidate countries for accession to the EU with respect to economic and social rights protection. Rights protection is also being encouraged in all neighbourhood policy programmes (e.g. Mediterranean or Eastern partnership countries). The concentric circles that define the EU's relations with third countries show that economic and social rights are present in all association and strategic partnership agreements (e.g. Central America and Brazil) and, generally, in all cooperation policies with all continents (Africa, Asia, Latin America).
5.Economic and social rights in EESC documents
5.1The European Economic and Social Committee has been engaged in the entire process leading up to the adoption of the Charter of Fundamental Rights of the European Union. In specific opinions, it has pointed out the innovations and the role of economic, social and cultural rights in the Charter and the possibility of fully protecting these rights in law. In 2000, the Committee joined many others in supporting the full integration of the Charter in the Treaties (SOC/013). It drew up recommendations to follow the guidelines set out by the Comité des Sages as early as 1996 in its report entitled "For a Europe of civic and social rights", where it stressed that bringing Europe close to its citizens required a "wide spectrum" of expertise that was not just political but also economic and social. The EESC opinion of 2000, Towards an EU Charter of Fundamental Rights1 stressed the importance of the reference to the European Convention for the Protection of Human Rights and Fundamental Freedoms, not to mention the social charters adopted by the Community and the Council of Europe. It defined the importance of the EESC's "institutional" advisory role - insofar as it was made up of representatives from all economic and social sectors of organised civil society - in all aspects of the integration and revision process, in the interests of developing a "European model of democracy".
5.2In a 2006 opinion on the EU Agency for Fundamental Rights2, the EESC recommends broadening the agency's scope of action (originally only a monitoring centre for racism and xenophobia) to include all areas covered by the Charter of Fundamental Rights. The opinion welcomes paragraph 2 of the Preamble of the proposed Council Regulation, which recognises the scope of existing rights to protect citizens and non-citizens within the Union when it states that "The Charter of Fundamental Rights of the European Union reaffirms the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedom, the social charters adopted by the Community and by the Council of Europe and the case law of the Court of Justice of the European Communities and of the European Court of Human Rights". It specifically advocates inter alia that the Agency be entitled to call for assessments on the compatibility between the Charter of Fundamental Rights and any proposed new EU legislation and policy (including external policies such as trade with developing countries).
5.3In a 2009 opinion on The European Instrument for Democracy and Human Rights (EIDHR), the EESC calls for economic, social and cultural rights to be given greater importance in the European Union’s policies, even through the use of available geographical and thematic instruments. The EESC asks for the EU to call for the universal ratification and implementation of the UN Covenant on Economic, Social and Cultural Rights, which states in Article 3 that "The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant." Articles 6 to 15 of the Covenant recognise the right to work, to the enjoyment of just and favourable conditions of work, to form and join trade unions, the right to social security, the widest possible protection and assistance to the family, mothers, children and young persons, the right to an adequate standard of living, to the enjoyment of the highest attainable standard of physical and mental health, to an education and to take part in cultural life. This opinion also stresses the importance of protecting every aspect of work (as a crucial element of each individual's social identity and right of citizenship). It points to the link between protecting work and all the associated rights set out by the International Labour Organisation core conventions (right to work, right to organise and right to collective bargaining, non-discrimination at work, outlawing of child and forced labour) and recognises them as fundamental human rights. The opinion was very favourably received by the Commission, and the dignity of work (as defined by the ILO) and social dialogue, a prerequisite for labour rights protection, have found adequate recognition and have been included among the EIDHR's priorities.
6.Economic and social rights in the Western Balkan Region - the EESC's initiatives
6.1Economic and social rights are a priority issue in the EESC's current strategy in the Western Balkans. During the course of the first two meetings of the Western Balkans Civil Society Forum, held in 2006 and 2008, set up at the EESC's initiative , a number of recommendations were drawn up, stressing the commitment of the region's civil society organisations to the EU's economic and social cohesion principles and calling on the region's institutions to respect economic and social rights. The Forum called on the region's governments to respect fully the activities of legitimate, independent organisations that represented civil society and to encourage the development of civil dialogue by establishing an appropriate legal framework. With regard to social dialogue, the Forum called for the proper functioning of national tripartite bodies for industrial relations so that the social partners and governments could contribute to the region's economic and social development.
6.2As one the two main items on the agenda of the 3rd Western Balkans Civil Society Forum will be economic and social rights, a number of civil society "hearings" have been or are being held with representatives of civil society organisations from each State in the region in preparation for this Forum. So far, the main issue that was raised as regards the institutional framework during these meetings concerns the weakness of social dialogue, both at bipartite and tripartite levels. Such a weakness in this dialogue is often reinforced in the region by a general tendency for lack of trust between employers and employees and a fragile culture of consensus. Weakness of trade union representation in the private sector prevents also the voice of workers in this sector to be properly heard and may thus prevent their rights to be properly defended.
6.3Further to this framework aspect, matters of concerns are the implementations of laws on the protection of minorities, children's rights, and gender issue. Anti-discrimination policies remain in most of the countries quite weak and not comprehensive. In this respect, Roma minority is still being particularly discriminated against and their integration is a serious matter of concern. Domestic violences against women and children are also a subject that should be tackled in a stronger way by national authorities of the region.
1 Official Journal of the EU 2000/C 367/08 of 20/12/200 p.26-31
2 Official Journal of the EU 2006/C 88/10 of 11/04/2006, p:37-41