Social Rights in Europe

The European Social Charter as a Means of Protecting Fundamental Economic and Social Rights in Europe: Relevant or Redundant?

Social Rights in Refugee Law and Human Rights Law: The Non-discrimination Principle as a Harmonization Tool

This article is devoted to the legal analysis of provisions of the European Social Charter, as the main international normative act regulating legal relations in the field of social and labor rights of workers, as well as identifying the features of the system of international cooperation in this area. The article touches upon the problem of institutional and conventional interaction of subjects of international law. The issues of the structure and content of both the European Social Charter and its basic norms governing the sphere of social and labor rights are considered. Attention is drawn to the fact that 60 years have passed since the adoption of this international legal act, which was opened for signature on October 18, 1961 in Turin. In the jubilee year, there is every reason to recall the history of the adoption and entry into force of the European Social Charter, its revision in 1996 and the ratification of this international legal act by the Russian Federation after a long period after the official signature. The article also concerns certain problems of reforming domestic legislation in the field of social rights and guarantees in accordance with European standards. The problems of the implementation of the norms of the European Social Charter governing legal relations related to social rights and guarantees of workers into the modern legislation of the Russian Federation are touched upon. On this basis, it is concluded that it is necessary and advisable to include in Russian legislation the provisions of the European Social Charter on additional guarantees for the protection of social, labour and economic rights. It was found that certain norms of the European Social Charter, which provide guarantees of rights to migrant workers, are not fully included in domestic legislation. Comparative legal analysis of the compliance of the legislation of the Russian Federation with the provisions of the European Social Charter shows that the legal foundations of social and economic guarantees of the rights of Russian citizens are basically consistent with the provisions of the Charter. At the same time, it is stated that the level of guarantees actually provided is determined by the capabilities of the state. Further development of the social and labor sphere in the country makes it possible to approach the standards proclaimed in the Charter, which makes it possible to fulfill the obligations assumed upon its ratification. Russias accession to the European Social Charter and its ratification undoubtedly strengthened the position of our state in relations with other countries, increased the level of protection of social, labour and economic rights in the country. It is advisable to discuss issues of ensuring the implementation of the provisions of the European Social Charter in the Russian legal system in order to further improve national legislation, improve the level and quality of life in our country.

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

List of contributors Acknowledgements List of abbreviations Table of cases Introduction Bob Hepple Part I. Responses to Globalisation: 1. Common law, labour law, global law Lord Wedderburn 2. The interaction of the ILO, the Council of Europe and European Union labour standards Paul O'Higgins Part II. The Potential of Fundamental Social Rights in the European Union: 3. The Politics of the EU Charter of Fundamental Rights Manfred Weiss 4. Market freedom and fundamental social rights Silvana Sciarra 5. Corporate governance, European governance and social rights Catherine Barnard and Simon Deakin Part III. Constitutionalisation and Enforcement of Social Rights: Some Comparisons: 6. Social rights as fundamental human rights Ivan Hare 7. The legal efficacy and significance of fundamental social rights: lessons from the European experience Antoine Lyon-Caen 8. An American perspective on fundamental labour rights Cynthia L. Estlund 9. The impact of fundamental social rights on Japanese law Takashi Araki 10. Enforcement: the law and politics of cooperation and compliance Bob Hepple Index.

The focus of this book is on the protection of social rights in Europe — ‘social rights’ being used broadly to refer to the category of rights which concern economic and social well-being, and ‘Europe’ referring primarily to the overlapping systems of the European Union (EU) and the Council of Europe. The profile of social rights has been raised in recent years by the debates during the drafting of the EU's Charter of Fundamental Rights and during the Convention leading to the drafting of an EU Constitution about the status of social rights within the European economic and social model. The term ‘social rights’ is used here in a broad sense to include many kinds of economic and social rights, and the choice of case studies — while necessarily selective and inevitably vulnerable to the criticism of under-inclusiveness or specific emphasis — has deliberately been made with this broader category in mind.

collection addresses the potential of the European Social Charter to promote and safeguard social rights in Europe. Drawing on the expertise of the ETUI Transnational Trade Union Rights expert network from across Europe, it provides a comprehensive commentary on these fundamental rights. Taking a two part approach, it offers an in-depth legal analysis of the European Social Charter as a new social constitution for Europe, investigating first the potential of the general legal frame in which the Charter is embedded. In the second phase a series of social rights which are related to the employment relation are examined in particular in light of the jurisprudence of the European Committee of Social Rights (ECSR), to demonstrate the crucial but difficult role of the Charter's supervisory bodies to secure the respect and promotion of social rights and national level, bearing in mind the reciprocal influence of other international social rights instruments. This examination is timely, given the pressure exerted on those rights during the recent period of economic crisis. Furthermore, in the light of the predominantly economic vision of Europe, such analysis is crucial. The collection is aimed at stimulating academic scrutiny and raising awareness amongst practitioners and trade unions about this important and equally necessary anchor of the social dimension of Europe in legal and political practice.

This chapter offers a comparative study of social rights in the European and Indian Union. After making an attempt to outline the concept of social rights in Europe that could be compared with the Indian case, the chapter looks at the state of social rights within the European Union, specially the European Social Model and the ways of Europeanization of social policies and their interaction with changing European welfare state systems. It then compares the European Social Charter with the SAARC Social Charter and explores the further opportunities of social rights protection. The chapter suggests that both the regions have something to learn from each other with regard to protection of social rights.

The recent debt crisis in Europe has resulted in a significant number of structural reforms implemented in EU Member States across various fields, including the labour market, either in the context of the bailout mechanisms or the EU Economic Governance framework. This development has provoked fundamental rights concerns and has consequently given rise to litigation strategies that put austerity reforms under the test of legality before supranational and national competent bodies and courts. However, the jurisprudence that has developed in that regard seems incoherent and shows real differences in approach. This study analyses the paths of judicial reasoning that supranational and Greek bodies have adopted in fundamental rights cases challenging austerity-based labour market reforms implemented in Greece during the European Debt Crisis. It concludes that different paths of reasoning have been adopted, which could even be regarded as conflicting at several instances. They are thus reflecting the well-known particularities and discrepancies of fundamental rights protection in Europe as well as the conflicting relationship of social rights with economic and fiscal considerations imposed by austerity in times of crisis and beyond. Austerity, Greece, labour market reforms, fundamental rights, European Debt Crisis, social rights, labour law, ECHR, European Social Charter, Court of Justice of the European Union

This paper is devoted to the analysis of the right to equality and protection against discrimination in employment in the light of the European Social Charter. The said rights are fundamental human rights of key importance recognized in the constitutions of all but three EU and EEA Member States and in most international human rights instruments. The aim of the article is to comprehensively present the relationship between the standards of the European Social Charter in the light of the interpretation of its provisions made by the European Committee of Social Rights and the implementation practice in the member states, including Poland. In the law of the Council of Europe, the European Social Charter (revised) directly establishes the right to equality and protection against discrimination, especially in point 20, and specifies the corresponding duties of states parties to respect, protect, and fulfil this right in Article 20. However, the principle of equality and non-discrimination lies at the heart of each right guaranteed by the Charter, which is expressed in Article E. The Charter is unique in being the only legally binding European instrument that contains provisions specifically and exclusively addressing many social and employment rights, including e.g. the right to housing. Therefore, its role in establishing high standards of enjoyment of the rights to equality and non-discrimination and strengthening the mechanisms of their protection in Europe is crucial. Unfortunately, conclusions of the European Committee of Social Rights concerning the right to equality and non-discrimination reflect a relatively low degree of compliance with the Charter’s standards. Therefore, incentivizing states to improve their standards of protection of this right is an important challenge for all European countries in the future.

As a complement to the European Convention on Human Rights (ECHR) that protects civil and political rights, the European Social Charter (ESC) protects the fundamental social and economic rights of the Parties citizens. The Charter is a human rights treaty which proclaims a number of rights and provides for a monitoring mechanism to ensure their proper implementation. The rights guaranteed by the Charter concern individuals in their daily lives and cover wide range of issues not only linked to work or professional life. The Revised Charter updated and enlarged these rights in the following areas: housing, health, education, legal and social protection, and non-discrimination. The Council of Europe Parliamentary Assembly has made two different proposals for future reform: firstly, the European Committee of Social Rights (ECSR) could be transformed into a European Court of Social Rights; secondly, the rights embodied in the Social Charter could be inserted into the ECHR. Keywords: European committee of social rights (ECSR); European Convention on Human Rights (ECHR); European Social Charter (ESC); monitoring mechanism

This new book edited by Julia Iliopoulos-Strangas continues and, for the time being, concludes her examination of fundamental social rights as an integral part of the constitutional frameworks of the EU’s Member States, which she has conducted for many years. Her first anthology in French entitled ‘La protection des droits sociaux fondamentaux dans les Etats membres de l’Union européenne – Étude de droit comparé’ was followed in 2010 by her first book in German entitled ‘Soziale Grundrechte in Europa nach Lissabon – Eine rechtsvergleichende Untersuchung der nationalen Rechtsordnungen und des europäischen Rechts’ (Fundamental Social Rights in Europe after the Treaty of Lisbon—A legal comparative examination of national legal systems and EU law). According to Klaus Stern in the book’s foreword, through this study Iliopoulos-Strangas had enriched the academic world and political and legal practice with an unrivalled work. This new book contains contributions by renowned legal experts from all the ‘new’ EU Member States, namely from the former Eastern bloc, Malta and Cyprus. In part 1, reports on each country reveal the extent to which the individual constitutions of the ‘new’ EU Member States have upheld basic social rights. Part 2 is comprised of a critical legal comparison and survey by the editor, which collates important findings on the protection of fundamental social rights in the aforementioned 13 new EU Member States that have as yet been unavailable in such a form. As the European Court of Justice has taken recourse to the constitutional traditions of the EU’s Member States, the legal comparison the book conducts in this respect appears to be essential for the development of EU law.

Social protection issues of employees is connected with laws to make in European Social Charter (1961) and Community Charter of the Fundamental Social Rights of Workers (1989). Some of the these rights are regulated in the Directives EC, which in the period of Polish assoiation with European Communities were implemented in the Polish labour law. After Polish accession to the European Community, three aspects of the social protection of employees are especially important and in these cases it is necessary to pay attention to them in this paper

In light of a number of serious economic and social crises, particularly noteworthy being the worldwide coronavirus pandemic and, even more recently, the Ukrainian refugee crisis in 2022, the importance of the protection of the enjoyment of social rights in Europe has increased significantly. These crises have caused major impacts on the most essential social rights, including the beyond going ‘societal issues’ , such as the ‘right to protection of health, the protection and education of children and young persons and the right of persons with disabilities to social integration and participation in the life of the community’, provided for in the European Social Charter.

The objective of this article is to describe the development of the perception of human rights’ issues pertaining to the field of labour law under the new jurisdiction and legal order created by the European Communities. The progress in the human rights area shall be illustrated by changing approaches of the European Court of Justice and Member States and of course by the greater awareness of the citizens of the “ever closer Union” of their fundamental rights. The gist of the work tackles the most interesting labour law cases which the European Court of Justice was deciding and which are sometimes of trailblazer character. This article commences by a necessary introduction of human rights protection in the context of labour law. It further briefly tackles the development of the European Court of Justice’ case law regarding human rights’ aspects generally. It also describes various instruments of the other EC institutions tackling the controversial subject of human rights, up to the most recent document, The Charter of Fundamental Rights of the European Union and the Europe’s Constitution. The principal part of this article concentrates on social human rights case law and outlines some of the basic general principles that the European Court of Justice employed when deciding such cases. However, it was never the aim of this paper to provide a complete list of Community fundamental social rights in the field of labour law as the author is well aware of the fact that such task would require much more elaborate analysis of this topic. Quite contrarily, the purpose of this article is to highlight labour law aspects connected with the judicial protection of fundamental rights of employees within the framework of the European Union and to enable a more clearer insight into some of the key judgments in this area. The final part reflects protection of fundamental social rights of employees provided by the Community in the Czech legal order. The article was written with the ultimate purpose of illustrating that fundamental social rights of employees are bound to enjoy more and more respect and the values comprised in some of the cases of the European Court of Justice and certain key Community instruments such as the Charter, are to become a necessary part of the foundations of the future European integration.