Enforcing the European Pillar of Social Rights: Finding the Right Mix and Balance

Introduction

Against the backdrop of the recent multidimensional crisis, significant changes have been introduced to the legal and political frameworks in which the EU and its Member States design, implement, monitor and evaluate policies and practices. Since the start of its term, the Juncker Commission has placed great emphasis on social priorities. The European Pillar of Social Rights (EPSR) is one of the most emblematic initiatives. Adopted as a Commission Recommendation on 26 April 2017 and solemnly proclaimed by the European Parliament, the Council and the Commission on 17 November 2017 at the Gothenburg Social Summit, the EPSR should be implemented at both Union and Member State level as a ‘first step’ that should be taken forward ‘to put people first, to further develop the social dimension of the Union’ and ‘to promote convergence through efforts at all levels’, in line with the European Council conclusions of 14 December 2017. Meanwhile, the EPSR has already entered the realm of the Court of Justice. Both the nature and the content of Pillar raise issues regarding effective enforcement of EU law and policy in the post-crisis context. From this perspective, this contribution addresses the main challenges facing the EPRS and explores possible ways forward.

The legal status of the Pillar

The legal form and the precise nature and content of the EPSR determine enforcement and need to be examined in connection with the Pillar’s ambitious aim, namely ‘to serve as a guide towards efficient employment and social outcomes’, and ‘towards ensuring better enactment and implementation of social rights’ (Recital 12).

The EPSR is both a Commission Recommendation and an Interinstitutional Proclamation. The choice of these legal forms of a non-binding nature was a political decision that has an impact on the effective enjoyment of the social principles and rights it enshrines. The Charter of Fundamental Rights of the European Union (CFREU) was also solemnly proclaimed by the European Parliament, the Council and the Commission on two occasions in 2000 and 2007 before having the same legal value as the EU Treaties. Nevertheless, the Charter and the Pillar differ in terms of thei

r rationale, drafting, nature, content and scope. Unlike the Charter, the Pillar was not launched with the option of being incorporated in the Treaties and the Pillar’s legal status is not likely to be upgraded in the foreseeable future.

The high expectations raised by a pillar of ‘social rights’ could not be met by a mere proclamation of ‘principles and rights’ that are not directly enforceable (Recital 14). In its current form, the Pillar does not create legally binding rights, which makes enforcement particularly challenging. Yet this does not mean that the Pillar is entirely devoid of legal effect, nor is its political value irrelevant when it comes to implementation.

A dynamic, multilayered enforcement regime for the Pillar

The enforcement regime for the Pillar reflects the rationale of a soft law instrument. The Pillar was devised as a dynamic instrument that provides flexibility and room for manoeuvre for a number of players at all levels to act according to their competence and update their implementation instruments in the light of a variety of situations and socio-economic environments.

The Commission proposed ‘appropriate monitoring’ of the Pillar’s implementation in its Communication of 13 March 2018. It involves both EU law and soft governance mechanisms, with a focus on the European Semester, financial tools and social dialogue as part of a complex, non-linear and evolving regime. Since principles and rights are not directly enforceable, they require separate legislation and/or specific action within a multi-level system, which reflects the highly diverse nature of the EU. The Pillar’s enforcement regime inevitably relies on other legal and policy enforcement mechanisms for each principle or right in the various areas covered by the Pillar. It thus involves a wide range of players and stakeholders — public or private, at EU, national, regional and local levels — which are not necessarily interconnected either in time or purpose. This flexible and adaptive approach also entails the risk of a sort of multiphase, deferred enforcement that varies depending on diverse political agendas and the multiple means used. It is also true that while some may see a weak patchwork of mechanisms, others may acknowledge the benefits of a pragmatic ‘mix and match’ approach to enforcement. In any case, this complexity requires strong governance, enhanced coordination and monitoring if the full potential of the Pillar is to be effectively realised.

As regards the various instruments deployed, their outcomes and effectiveness are uneven. There are significant examples of new and updated legislation in the social field. The Pillar’s priorities have been mainstreamed in a number of EU policies and activities. Since the 2018 cycle, the European Semester has been providing more socially-balanced economic policy coordination; it is also the main tool for monitoring the Pillar’s implementation. Nevertheless, from the perspective of enforcement and compliance, implementation of (social) country-specific recommendations by Member States has deteriorated and remains disparate, casting serious doubt on the effectiveness of this soft governance mechanism to translate the Pillar’s principles into policies. Furthermore, the European Semester raises issues of democratic legitimacy, accountability and transparency that need to be addressed.

Further prospects: judicial enforcement?

The prospects for judicial enforcement of the Pillar’s principles and rights appear to be a distant hope. Unsurprisingly, the Court of Justice was silent on the first reference to specific provisions of the Pillar made by a national court in a request for a preliminary ruling (Joined Cases C-789/18 and C-790/18 AQ and ZQ v Corte dei Conti and Others). Despite the precedent of the CFREU, there are substantial differences between the two instruments. The Pillar is not an additional charter of fundamental social rights and it is not intended to replace existing instruments for the protection of these rights. Building on its substantive innovations that go beyond the existing acquis, it may be argued that the Pillar has the potential to become not only a tool for the promotion of social rights but also a guiding source for the legislature and judiciary as regards the protection of these rights at EU and national level. As a non-binding act, however, the evolving Pillar may only prove its worth as a driver for change towards more binding standards if there is genuine political commitment in the years to come.

Concluding remarks

Efforts to implement the Pillar thus far highlight the need to harness its full potential through a more appropriate balance of enforcement mechanisms. The Pillar itself shares the strengths and weaknesses of the various instruments used to apply its principles. Admittedly, the Pillar alone cannot resolve the issues underlying the European Semester’s performance, nor is it able to introduce a new institutional and constitutional balance. Moreover, the Pillar is not intended to overcome shortcomings in systems for the protection of social rights at national or European level. What it does seek is to play a part in delivering ‘more effective rights to citizens’ in relevant fields and through all available means. While this action-oriented approach reflects a step forward, the results of implementation have proven mixed. Therefore, in the absence of a clear, integrated roadmap and stronger coordination at all levels, the Pillar’s effectiveness runs the risk of being diluted and failing to fully deliver not only on expectations but also on commitments made. The new institutional and policy cycle should particularly address the lack of democratic legitimacy and national ownership with regard to the Pillar, aspects that can only be achieved through greater parliamentary involvement at EU and national level in the implementation of the Pillar’s principles. Effective enforcement will largely depend on the right mix and balance between hard and soft mechanisms. And an all-encompassing regime should be embedded in the overarching framework of EU constitutional values and objectives.

The Pillar’s very raison d’être is to bring about change in the long-term process of building a more social Europe, one that is better prepared to tackle crises and face future challenges. Looking ahead, the economic recovery and employment and social improvements thus far stand in stark contrast with the increasing divergence, persistent unemployment, growing income inequality and in-work poverty in evidence in several EU Member States. Against this backdrop, the foundational dimension embodied by the EPSR should continue to bear further fruit through the action plan announced by President-elect of the next European Commission to implement the Social Pillar and ‘bring’ it fully ‘to life’.

* Dr Susana Muñoz is Maître-assistant in European Law at the University of Luxembourg.