Topic

Visions of Social Europe in EU law and policy

Social protection, integration and harmony

Using recent reform proposals as case studies, I will explore the tensions between the goal of offering continuous social protection to migrants, the idea that social protection should hinge on social integration, and the wish to avoid the disharmonies that flow from the involvement of several, maladjusted legal orders.

The construction of and response to vulnerability under Union social law

The Impact of the Charter on the social dimension of Union law

This paper analyses whether and how the Charter has been used by the Court of Justice in the area of social policy (broadly conceived). It looks at the main patterns of how the CJEU has approached the ‘social rights’ provisions in the Charter. When discussed in the broader context of access to the CJEU in the area of social rights, this reveals a very limited impact of the Charter on the EU social dimension. The discussion also proposes some ways in which the Charter could be instrumentalised in order to strengthen the EU’s social dimension.

The Reform of Posted Workers Directive

Posting workers has always been a perplexing area of economic activity in the European Union. Most often workers were posted because their employer intended to provide services. As a result, posting workers exposed similar problems to these which had given rise to Gebhard and had been identified in Rush Portuguesa CJ’s judgments: i. e. the problem of delineation between the situations where workers became fully-fledged participants of the hosting country’s economy are the situations where their relationship with that economy could be considered  ephemeral and thus incapable of rendering a strong enough bond with the economy of the hosting country. Directive on Posted Workers (96/71/EC) failed to delineate these situations, too. The result of this failure resulted in highly imperfect balance struck between market efficiencies was intended to produce and the protection of workers. The quite essential reform (implemented by virtue of Directive 2014/67/EU) increased the level of social protection (thus more extensively reflecting on the CJ’s jurisprudence which has accrued since the adoption of Directive 96/71/EC). Yet, it did so at the expense of market efficiencies as evidently it produced a great deal of fragmentarisation of the EU internal market. Nevertheless, these drawbacks were accepted by the majority of EU Member States for two reasons: firstly, the Posted Workers Directive pertains to only a small fraction of the EU labour force; secondly, because its negative effects can be expected to accumulate unevenly – they would be much more exposed in Member States which source their competitive advantage in lower costs of labour. Expanding the same regulatory approach onto other areas of economic activity in the EU internal market would, however, expose the more intensive and more broadly represented in the EU decision-making process tensions between market efficiencies and social protection. Thus, they would produce more conflict as they are bound to reduce global competitiveness of the EU economy, at least in labour-intensive industries.

Direct effect of fundamental freedoms – is there a new task for social partners?

Social partners cooperate with the EU institutions in relation to the shape of the legislation in the field of social policy implemented within the EU. They can however also be active in the area of internal market freedoms. It is generally possible due to the CJEU interpretation of the rules on the freedom of establishment and free movement of services with regard to their direct effect. Social partners are thus obliged not to restrict implementation of those freedoms, otherwise they may become liable for violation of its provisions. The question is, if this meets the autonomy of social partners and international law regulations, such as the relevant ILO conventions.

‘Agreements of European Social Partners as a Tool to Implement the EU Social Policy’

This paper presents an analysis of agreements which may be concluded by European trade unions and employers’ organizations on the basis of the procedure set up in Articles 154-155 TFEU. The above-mentioned procedure has a unique nature on a global scale. Its peculiarity consists in the fact that in case the European Social Partners reach an agreement, the EU institutions may under certain conditions refrain from adopting a legal act covering the same subject matter. In other words, such agreements may replace the EU directives which would otherwise be adopted in the area of the social policy.

Thanks to agreements of the European Social Partners, the EU minimum standards were achieved in such controversial issues as fixed-term contracts, part-time work or parental leave. However, the role of the agreements has recently been diminished. The paper examines the legal nature of such agreements, methods of incorporating them into national legal systems and reasons for their weaker role in the implementation of the EU social policy objectives. Finally, it focuses on development prospects for this important autonomous source of labour law.

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