How to Be Fundamental with Soft Procedures? The Open Method of Coordination and Fundamental Social Rights

Abstract

Soft law is certainly not a new invention in European policy-making. Yet, the use of nonbinding instruments to provide policy guidance in European governance has increased particularly over the last decade. A central role in this evolution is played by the Open Method of Coordination (OMC), a cyclical benchmarking procedure coordinating national policies by providing guidance and assessment at the European level. OMC-procedures have been introduced for such different areas as macro-economic policy, employment policy, social inclusion and enterprise policy, and the Lisbon Summit of the European Council in 2000 placed the OMCs within a broader strategy aiming at providing a framework for competitiveness and social cohesion. These coordination procedures of national policies are called ‘open’ both because of their assumed openness to the participation of stakeholders, and because of their openness in terms of objectives and instruments, which can more easily be adjusted to changing needs than traditional regulatory policy based on legislative standards. Yet, while the participatory nature of the OMC is contested, also its openness in terms of capability to adjust to changing needs has raised criticism. In contrast to common legislative standards, the flexible benchmarks set by the OMC could arguably lead to regulatory competition resulting in a race to the bottom in terms of social standards. However, given the lack of legislative competence and/or political will, the adoption of social standards through European regulation is not a realistic alternative, and might given the diversity of welfare systems not even be desirable. Therefore, recourse to fundamental social rights may appear as an attractive solution, in the sense that in the absence of social legislation at European level, fundamental social rights may appear as a hard standard which OMC processes would have to respect, thereby avoiding deregulatory tendencies. However, the relation between the ‘soft’ OMC procedure and the (assumed) ‘hard’ fundamental social rights may be more complex than appears at first sight. To assess this relationship, the second section of this paper will briefly clarify the nature of both the OMC and fundamental social rights. It recalls that on the one hand, the OMC – while being a soft law procedure – may have ‘hard effects’, and that, on the other hand, fundamental social rights are less ‘hard’ than their fundamental nature may lead us to expect. The relation between OMC and fundamental social rights is thus not an automatic one in which the soft OMC procedure would be backed by the hard guarantees of fundamental social rights. There is, though, a common ground where the OMC and fundamental social rights may meet. The third section of this chapter will analyse this meeting place, using the example of the European Employment Strategy (EES). The role of fundamental social rights in terms of justiciable rights ex post is likely to remain very limited in the context of the OMC