The respect of economic and social rights under the European Social Charter and in the European Union – What future for social rights in Europe?
Kevin Brown[1]
The first European Social Charter was opened for signature in Turin in 1961, and was the culmination of negotiations between European states which began after the Second World War and also gave rise to the European Convention on Human Rights. The original idea, to have one all-encompassing treaty which dealt with both civil and political and social and economic rights, raised problems among those states which saw social and economic concerns as political ends rather than fundamental rights. The Social Charter was nevertheless adopted in the spirit of the interconnectedness and interdependence of fundamental rights, a principle reiterated by the Vienna Declaration of 1993.[2] The concerns about its political impact led to the adoption of an alternative mechanism for its monitoring and enforcement. The resulting instrument allows States to select which articles it chooses to be bound by; provided it accepts a minimum number across a spread of the rights enshrined therein. The piecemeal nature of the protection highlights the political nature of States’ interaction with the Social Charter document – although it should be noted that it is not only the most ‘socially advanced’ States which have accepted high numbers of specific obligations – new democracies such as Estonia have also ratified the majority of paragraphs. For the control mechanism, a Committee of Experts was constituted which studies reports submitted by States and civil society organisations with a view to determining the conformity of situations over 4 year periods. The Social Charter was updated during the 1990s with an Additional Protocol; a Revised version which includes further rights such as protection against harassment, against social exclusion, and the right to adequate housing; and the collective complaints procedure, which allows the Committee of Social Rights to consider specific allegations of violations of rights submitted by international and national organisations. So far the number of states having ratified the Collective Complaints Protocol remains low, despite its positive consequences for the states concerned (problems are dealt with in greater detail and can identify weaknesses in social protection more clearly; the reporting obligation is reduced every two years to updates on the follow-up to complaints). The United Kingdom has been especially slow in the uptake of these reforms, having ratified neither the Revised Charter nor the Collective Complaints Protocol. Furthermore, it is one of two states who currently block the entry into force of the selection procedure for the expert Committee taking place through the Parliamentary Assembly of the Council of Europe; instead it continues to be carried out by representatives of the governments in the Committee of Ministers.[3]
The nature of the obligations contained within the Social Charter is a disputed issue. Many of the paragraphs require signatory States to “take measures to improve”, and therefore cannot be considered self-executing. Others, however, are more clearly defined, and may be considered directly applicable upon ratification. In yet more, the Committee has elaborated specific requirements based on other international instruments through its interpretations in the conclusions adopted under the reporting procedure, and in its decisions on collective complaints. Through the development of standards in its jurisprudence, the Committee has reinforced the utility of the Social Charter as a living instrument to guide states in the achievement of fundamental social and economic rights. No longer a merely aspirational document, the treaty now symbolises a clear body of protections on which the international community broadly agrees and states are obliged under international law to achieve.
In the recent past, however, the European Union has also seen an increase in the scope of its competences, and furthermore the adoption of the Charter of Fundamental Rights and Freedoms clearly symbolises a desire to refocus the European project on the achievement of the direct interests of the citizen. The extended competence of the EU has created a situation of co-competency in the field of social rights with which the Committee rarely previously had to grapple. Consequently, a number of Directives and decisions of the CJEU have indirectly been found to fall foul of the Social Charter[4], and while generally Directives concerning social rights allow for states to provide higher levels of protection and thereby comply with both EU and Social Charter obligations, in some instances the ability of states to comply with both legal orders is inhibited by the strict nature of certain EU laws[5]. It is necessary now more than everto consider the divergences in approach of the EU and the Council of Europe, to assess critically the work of the two organisations in the field of social rights, and to put forward and agree on good working practices, including legally binding methods for ensuring that in the future these institutions cooperate to create harmony in their relevant protections, rather than allowing divergences to develop and hinder the safeguarding of these fundamental rights. The launch of the Turin Process by the Council of Europe in October 2014 has provided new impetus to the recognition and reconciliation of economic and social standards, and numerous reports for the Council of Europe and the EU have led to greater understanding of the relationship between EU law and the Social Charter. Moreover, on 8 March 2016, the European Union announced a public consultation on its outline for a new “Social Pillar” of the EU.[6] This article will therefore consider some of these issues, and discuss the proposal, repeatedly called for by the European Parliament[7], of EU accession to the European Social Charter.
The Case-law of the European Committee of Social Rights
In contrast to the application of the Bosphorous principle by the ECtHR[8], the European Committee of Social Rights has made clear that it will not accept a rebuttable presumption of conformity with regard to EU law.[9] It is therefore not enough for states to demonstrate that they have properly implemented a Directive or other EU instrument for the Committee to find them to be in conformity with the Social Charter. This has thus resulted in a number of decisions and conclusions which find violations of the Social Charter on the basis of EU law applied at the national level.
The case-law of the Committee demonstrates, however, that there are two areas for potential conflict in the EU context. The first is where the EU adopts minimal standards, and allows States to provide greater protection, which enables them a margin of appreciation to comply with other international norms. The second is the case of full harmonisation, where the EU legislation, or its interpretation by the CJEU, provides maximal standards, which restrict the capacity for Member States to provide protection in line with other treaties.[10]
An example of the former is the revised Parental Leave Directive[11], which entitles men and women workers to a minimum of four months' leave after the birth or adoption of a child. Under Article 27§2 of the Social Charter, men and women must be individually entitled to parental leave, part of which must be non-transferable, and they must be adequately compensated for this time in order to encourage the taking of leave by both parents. The Directive contains the same standard of non-transferability, however it does not provide for a binding system of remuneration to ensure that workers do not lose out when they opt to take longer periods of leave. Nonetheless, as the Directive sets only minima, and Clause 8 of the agreement expressly provides that States may provide greater protection, there remains the possibility for the Member States to comply with their obligations under the Social Charter as well. When they fail to do so, it is clearly the will of the national legislature to contravene the Social Charter.
The second case, where States are limited in their capacity to comply with the Social Charter due to strict harmonisation requirements, has been demonstrated in the context of posted workers. These workers, temporarily undertaking the provision of services in another EU member state, are availed of the freedom to provide services laid down in Article 49 TFEU, and enjoy the protection of Directive 96/71/EC (Posted Workers Directive), which lays down a “nucleus” of standards which must be undertaken by the employer and guaranteed by the legal framework of the host state. Also of particular relevance to the protection of these workers is Article 19§4 of the Social Charter, under which States Parties guarantee to afford migrant workers the same rights to remuneration and working conditions, as well as the same rights to trade union affiliation and protection, as citizens and permanent residents of the state. In its decision in the Collective Complaint No. 85/2012[12], the European Committee of Social Rights found that this right, as well as the right to collective action under Articles 6§2 and 6§4, was contravened by the EU law as implemented by Sweden.[13]
The Posted Workers Directive was introduced in 1996 with the intention of protecting workers who were posted abroad by their employers from abuse, and to guard effectively against social dumping. To address the first desire, the minimum “nucleus” was enshrined to cover, inter alia, working hours, holidays, remuneration and health and safety conditions. To address the second impetus, the possibility of a wider set of rights was enabled through Art 3.10, provided that equality of treatment is guaranteed. Furthermore, enhanced provision for social conditions was expressly envisaged under Art 3.7, which stipulates that member states are free to apply “terms and conditions of employment which are more favourable to workers”. In this framework, the Directive must be read as a floor of provisions, rather than a ceiling. Thus, to make provision for “more favourable” conditions, the state can most simply allow for further collective bargaining and the conclusion of separate agreements containing conditions which at least respect the universally applicable ‘floor’. This was considered to be the position by Sweden when it passed the Lex Britannia, to regulate the situation of posted workers.
However, the famous ‘Laval quartet’ of ECJ rulings significantly changed the nature of the Directive. With Laval[14] and Luxembourg[15], the court made evident that it would treat the “core” of labour rights as an exhaustive list of maximal protections to be respected by posting employers. In other words, it would be illegitimate for states to force employers to accept higher conditions than the minimum guaranteed, for example by creating sectorial requirements above the general minimum wage. Furthermore, by ruling that collective action against foreign employers and attempts to bargain collectively were illegal as affronts to the freedom to provide services, the Court made the assumption that the voluntary acceptance of higher rates of pay and other conditions, following negotiation on an equal footing, automatically fell foul of the foreign company’s EU rights.
The decision introduced discriminatory divisions between workers employed within their own country, and posted workers who cannot benefit from collective bargaining on their behalf. Sweden’s response to Laval was to effectively outlaw industrial action and collective bargaining with foreign companies except to ensure the application of the minimum standards outlined within the Directive.
The European Committee on Social Rights (the Committee) subsequently received a collective complaint from two large Swedish trade unions, the abovementioned Complaint No. 85/2012. In considering the effects of the ‘Lex Laval’, the Committee found that the restriction on collective bargaining was both contrary to Article 6 and Article 19§4, insofar as it restricted the right of Trade Unions to regulate their own actions, and discriminated between migrants and nationals on the conditions of remuneration, working conditions, and effective freedom of association via trade unions, which has also been recognised as a civil right by the ECtHR in Demir and Baykara v Turkey [2008] ECHR 1345.[16] In its most recent Conclusions[17], the Committee took a slightly more nuanced approach to the question under Article 19§4 in response to criticisms that the “posted workers” were not susceptible to be treated as “migrant workers” under international law. The Committee has moved towards a definition of migrant workers which takes into account their extent of incorporation in the country, which acknowledges that posted workers may perform their duties over highly variable periods of time.
The decision of the Committee in Complaint No. 85/2012 highlights the tension between economic freedoms as enacted and interpreted by EU institutions, and the fundamental rights enshrined in international law by the Social Charter. It creates difficulties for Member States signatory to both instruments, who are asked to find a middle ground between two sometimes directly contradictory obligations. Unsurprisingly, due to its relative visibility and directly applicable nature, EU law usually wins out.
The Charter of Fundamental Rights of the European Union
The Charter of Fundamental Rights of the European Union can only be invoked when challenging acts of the European Union or their implementation by member states – and despite efforts to increase the effectiveness of pre-emptive review, social concerns have not historically been a strong guide for policy creation by the Commission.
Despite the preamble to the EU Charter of Fundamental Rights acknowledging its basis upon existing human rights standards, including the Social Charter, during its drafting it is clear that the approach to be taken in EU law would be to divide certain “rights” from more general “principles”.[18] These principles would only become potentially justiciable when they are implemented through further legislation of the EU. Article 52(5) of the EU Chart of Fundamental Rights and thus states:
“The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.”[19]
In the context of social rights, this limitation has been implemented in a narrow manner by the CJEU, allowing only a limited interpretative role for social rights, such as in the case of Kamberaj[20], where the court included housing benefits in the notion of “core benefits” for the purposes of the possible restriction in Article 11(4) of Directive 2003/109. These interpretative functions are beneficial certainly, but they operate in only limited cases.
As noted in the study for the AFCO Committee, “the list of social rights, freedoms and principles of the EU Charter of Fundamental Rights pales in comparison with the full list of the 1961 and 1996 versions of the European Social Charter.”[21] Moreover, certain guarantees which were contained in secondary EU legislation and then recognised at the level of fundamental social rights in the Revised Social Charter (1996), such as in Article 8 of the revised treaty (which drew upon Council Directive 92/85/EEC) are not reproduced in the same manner in the EU Charter of Fundamental Rights.[22] The level of protection offered by the EU Charter is therefore not concomitant with the full respect of Member States’ obligations under the Social Charter.
Furthermore, in applying the EU Charter of Fundamental Rights, the CJEU has tended towards a procedural review of the actions of the legislator. This approach is demonstrated in Schecke and Eifert.[23] The Court in those cases based its decision of disproportionality on the argument that “[t]here is nothing to show that, when adopting Article 44a of Regulation No 1290/2005 and Regulation No 259/2008, the Council and the Commission took into consideration methods of publishing information… while at the same time causing less interference with those beneficiaries’ right to respect for their private life” (para 81.). Accordingly, the substance of the right to private life was given less importance than the potential considerations taken into account in the preparation of the laws. It is evidently important, therefore, to ensure that the Commission and other legislative bodies will perform their tasks with appropriate regard for the substance of fundamental rights. For these reasons, it would be a progressive step for the EU to accede to the Charter, as this could extend the scope and depth of economic and social protection provided within the EU, without requiring the grant of any increased competencies by the Member States.
The “Social Pillar”
The announcement of the “Social Pillar” by Juncker in his speech on the State of the Union in September 2015 was an important turning point in the approach of the EU to social and economic questions. It has often been said that even despite the EU Charter of Fundamental Rights, the EU and in particular the CJEU ensure that fundamental rights must play second chair to the immutable internal market freedoms.[24] Many commentators doubt that the free market solution is the best approach. Professor Jean-Paul Fitoussi stated in a recent intervention in Turin[25] that he clearly preferred an attitude which favours social rights, and outlined how his work with Joseph Stiglitz and Amartya Sen demonstrates the link between greater social rights and higher well-being – suggesting that we are measuring the wrong indicators when we focus only on GDP and not on other factors such as inequality, health and the environment.[26]
Such problems have become more pressing throughout the duration of the financial crisis, as demonstrated by the handling of the economic situation in Greece by the ‘Troika’[27], along with ever escalating difficulties concerning migrants and refugees’ living conditions. The FRA Annual Report 2012 acknowledged that: “Charter‑related case law indicates that the EU Charter of Fundamental Rights does not offer judicial tools across the board to guarantee that austerity measures and other public interventions are ‘social rights compliant’”.[28]
Recent developments demonstrate a more rights-oriented approach, although social concerns remain marginalised in many areas. Therefore, a different approach which mobilises political solutions is perhaps the most promising avenue currently available. The “Social Pillar” programme currently in development is therefore a welcome addition to the discussion.[29] Nevertheless, it remains to be seen whether the “Social Pillar” will provide a successful basis for mainstreaming economic and social rights.
As part of the Social Pillar, a working document[30] has been drafted which outlines some of the areas in which the EU has acted using its competences to implement social rights. It highlights, for example, the Parental Leave Directive discussed above. As may be expected given that the framework provides only for minimum criteria, a European Parliament report in December 2014 shows wildly divergent standards for both grants of leave and payment, particularly for fathers.[31]
The “Social Pillar” may thus only realistically have a greater influence on economic, social and cultural rights if more concrete standards begin to be adopted in areas which are still currently subject to controversy over the role of rights/principles, in particular in the domain of social assistance. In this capacity, however, the competences of the EU become restraining, as the principle of subsidiarity and the limited scope of the Treaties in social matters may inhibit the Commission from taking active convergence measures.
The European Parliament, for its part, has played a strong role in maintaining a focus upon social rights in the EU. It instigated, for example, annual reports on fundamental rights in 2004, and one of its first actions was to call into question the Family Reunification Directive, which it claimed contained derogation clauses which allowed States to infringe fundamental rights. This is a topic which the Committee of Social Rights has returned to numerous times, in particular in the context of language tests.[32] While the Committee of Social Rights has adopted conclusions of non-conformity on this issue, the CJEU stated that the margin of appreciation afforded to member states allowed them to adopt measures which conform with fundamental rights, and accordingly the EU legislation was not at fault.[33]
Accession to the Charter
The call for accession of the EU to the Social Charter has come numerous times from the European Parliament, which wanted to see the process based upon that which is taking place for the ECHR. Such a result could be achieved under Article 216 TFEU.[34] In his study of the possible accession process, De Schutter provides an exemplar of the amendment clause which would guarantee that the Social Charter was only engaged in the context of existing competences of the EU, based on the one drafted for the ECHR.[35] However, given the dramatic conclusion of the CJEU in its Opinion 2/2013 on the accession of the European Union to the European Convention on Human Rights[36], it is perhaps wiser to emphasise the differences between the two instruments and their consequences for the EU.
Firstly, the control mechanisms of the ECHR and the Social Charter have important differences. Under the Social Charter, reports and collective complaints are examined by the expert Committee, which pronounces its opinion on the conformity of the situation with the Social Charter. Its jurisprudence is binding in terms of international law, as it has the sole competence to interpret the Social Charter. However, there is no system of enforcement equivalent to the ECtHR. The Committee cannot strictly require states to change laws and has no power to impose fines or other penalties for non-compliance. Nor is there independent control of the execution of judgments. The Conclusions are transferred to the Governmental Committee (made up of state delegates) which creates its own report, and both opinions are then transmitted to the Committee of Ministers. Resolutions or Recommendations can then be made by the Committee of Ministers calling on states to take action. Should the EU be subject to this type of scrutiny, there is of course no question that the CJEU would be challenged in its autonomy as ultimate arbiter of EU law. Rather, it would interact with the Committee of Ministers much as Member States do. Nevertheless, the process would provide independent analysis of EU legislation, bind the Commission to pursue a greater range of international standards, and encourage the CJEU to consider more carefully the social rights implications of its decisions with reference to the jurisprudence of the Social Charter, rather than paying mere lip service to its principles.
In its current application of the EU Charter of Fundamental Rights, the CJEU has shown itself slow to examine standards of international law other than the ECHR.[37] This is surprising, since the Charter on Fundamental Rights and freedoms is explicitly based upon a much broader range of treaties, including the Social Charter. The jurisprudence of the Committee and other international bodies such as the UNCESCR and ILO have built up over many years more detailed protective standards, often thoroughly researched, which could act as important guidelines for the interpretation of the EU Charter where it overlaps in terms of substance.
Upon accession, the CJEU could be required to apply the Social Charter directly via the law of the EU, in the case where the EU took steps to implement the treaty, as acknowledged for example in Kupferberg.[38] Individuals might therefore be able to invoke the Social Charter before national courts and before the CJEU in matters of EU law. However, the CJEU has been clear that before an international treaty could be directly invoked in the context of EU law, it would have to have been envisaged by the treaty that this effect should be created. The Social Charter contains no guarantee of an effective remedy such as found in Article 53 of the ECHR. Furthermore, many of its provisions are progressive in nature. It is therefore natural to conclude that the treaty is not intended to invest individuals with directly justiciable rights.[39] Indeed, the quasi-judicial nature of the Committee of Social Rights has seldom been taken by states to provide a directly justiciable right within national courts.
However, if the EU were to accede to the Social Charter, the Court would be obliged to respect the opinions of the Social Committee and take them into account when interpreting the Charter of Fundamental Rights and Freedoms, which would lead towards the convergence of social rights standards in Europe.
Furthermore, the accession of the EU to the Social Charter could remove the potential for EU Member states’ to be bound by conflicting legal requirements, and the problems which can follow therefrom. As has already been underlined by the CJEU, the EU may comply with fundamental rights by simply refraining from requiring States to act contrary to them, as was unfortunately the case for posted workers and during the Troika management Greek crisis.[40] The conflict of standards could have potentially serious consequences. As De Schutter has pointed out[41], paragraph 2 of Article 351 TFEU may lead states to denounce other treaties due to their inconformity with EU law. This has already happened, when France denounced Convention No. 89 of the International Labour Organisation following the Stoeckel judgment.[42] Given its status as the treaty completing the Council of Europe’s implementation of the UN Declaration of Human Rights, the disavowal of the Social Charter by one of the EU Member States would be an unmistakeably damaging step.
The process of accession is therefore a highly desirable development, and could provide a legal route to accompany the political impetus of the “Social Pillar” in protecting social rights. Giving competence to the Committee of Social Rights to directly assess the conformity of EU law with the Social Charter would clearly provide further guidance to the Commission and other institutions in conceiving of new legislation and improving previous rules, while lightening the burden of Member States which derives from the current indirect assessment process.
The future of the Social Charter in the EU context
Going back to the purposes of the European Social Charter’s drafting, the problem on the widest scale is how to ensure that fundamental social and economic rights are given full expression themselves in the international and domestic legal orders of the states which have undertaken to promote and progress towards the social wellbeing of all European citizens. It is often acknowledged that social rights are key to fully realising many civil and political rights, in particular the rights to freedom of expression, the right to education, and to private property.[43] The financial crisis has highlighted the potential harm that an over-reliance on financial considerations to the exclusion of social concerns can have, on access to justice, on access to welfare, and as pointed out by Jean-Paul Fitoussi, on the health of the economy itself. The Social Charter was ‘relaunched’ at the High-level Conference in Turin in October 2014. The aim of the ‘Turin Process’ is to investigate and implement ways to increase respect for the fundamental economic and social rights of everyone in society on the international and national levels, in the context of the recovery from economic crisis and in coordination with the European Union. The EU has since taken steps towards creating the “Social Pillar”, and various reports have been presented to the Parliamentary Assembly of the Council of Europe and the European Parliament on the subject. At the Turin Conference, Cleopatra Doumbia-Henry, Director of the Labour Standards Department of the International Labour Organization, highlighted the importance of Europe’s standing as an example for developing economies around the world. In a rapidly globalising economic environment, it seems imperative that the fundamental rights of the European Convention on Human Rights and the Social Charter be held out as standards applicable in every area, to protect the enormous progress achieved in the last half century. Such a development requires the input of all levels, from the EU and Council of Europe down to national and local governments and civil society.
The accession of the EU to the Social Charter would not have immediate effects upon EU law, as the Social Committee has no powers to invalidate legal acts of the institutions, and the rights are not in themselves capable of founding individual claims without its transposition into EU law by the CJEU. Nevertheless, it may entrench a stronger culture of pre-emptive consideration of the social impact of proposed legislation, which would significantly reinforce the momentum created by the newly proposed “Social Pillar”, and can only be a positive development. However, given the stalling of the accession process for the ECHR, it may seem strange if the EU were to take on the obligations of the Social Charter prior to becoming party to the treaty protecting what are widely seen as the most fundamental of rights. Therefore, while accession to the Social Charter would be relatively simpler than to the ECHR, it seems that politically this option may be even further away. For the meantime, it is important that the Social Charter and EU find methods to cooperate and co-exist, which can be achieved through a simultaneous strengthening of the Charter System within the Council of Europe, including the engagement of civil society to engage national governments with their obligations, and a greater appreciation of the influence of the Social Charter by the Commission and the CJEU in the creation and interpretation of European Union law.
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[1] Masters’ student, Institute of European Studies, Universite Paris 3 - Sorbonne Nouvelle. Assistant Lawyer in the Department of the Social Charter, Council of Europe, January – October 2015. Any views expressed are the author’s own.
[2] Vienna Declaration and Plan of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993, http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx
[3] Brussels’ Document on the Future of the Protection of Social Rights in Europe, p.8. Available at: https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168045ad98
[4] The Committee is not competent to rule upon the conformity of EU law with the Charter, but may assess the national laws which transpose Directives or apply Regulations, Confédération générale du Travail (CGT) v. France (paras. 31-42).
[5] See for example, the Laval case, judgment of 18 December 2007, Case C-341/05, Laval un Partneri Ltd., [2007] ECR I-11767, discussed below.
[6] http://europa.eu/rapid/press-release_IP-16-544_en.htm
[7] European Parliament resolution of 27 February 2014 on the situation of fundamental rights in the European Union (2012),
[8] “Bosphorus Airways” v. Ireland (application no. 45036/98)
[9] Confédération générale du travail (CGT) v. France, op. cit., para. 31 et seq.
[10] I am indebted for this analytical schema to Prof. Dr. Monika Schlachter, Vice-President of the Committee of Social Rights, who provided me with her contribution to the 1st Conference on International Labour Law, Frankfurt , 25 November 2015, ‘Stärkung sozialer Rechte durch Grundrechtsschutz im europäischen
Mehr-Ebenen-System?’ (publication forthcoming in the journal Europarecht).
[11] Directive 2010/18/EU
[12] Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v Sweden, Complaint No. 85/2012, available at: http://www.european-law-school.eu/media/CC85AdmissMerits_en.pdf
[13] For another discussion of the case, see: Olivier de Schutter, The European Social Charter in the context of implementation of the EU Charter of Fundamental Rights, Study for the AFCO Committee, p. 26-32. Available at: http://www.europarl.europa.eu/RegData/etudes/STUD/2016/536488/IPOL_STU(2016)536488_EN.pdf
[14] Laval, op. cit.
[15] European Commission v Luxembourg - Case C-319/06, judgment of 19 June 2008.
[16] Demir and Baykara v Turkey [2008] ECHR 1345, http://www.bailii.org/eu/cases/ECHR/2008/1345.html
[17] Conclusions 2015, Sweden, Article 19§4, https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680593904.
[18] O. De Schutter, 'Les droits fondamentaux dans le projet européen. Des limites à l’action des institutions à une politique des droits fondamentaux', in O. De Schutter and P. Nihoul (eds.), Une Constitution pour l’Europe. Réflexions sur les transformations du droit de l’Union européenne, Bruxelles, Larcier, 2004, pp. 110-114
[19] Charter of Fundamental Rights of the European Union, http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012P/TXT&from=EN
[20] Case C-571/10, Kamberaj, judgment of 24 April 2012, para. 92.
[21] Olivier de Schutter, The European Social Charter in the context of implementation of the EU Charter of Fundamental Rights, Study for the AFCO Committee, p.14
[22] Olivier de Schutter, The European Social Charter in the context of implementation of the EU Charter of Fundamental Rights, Study for the AFCO Committee, p.15-16
[23] Joined Cases C-92/09 and C-93/09, Volker und Markus Schecke GbR (C-92/09) and Hartmut Eifert (C-93/09) v Land Hessen, judgment of the Court (Grand Chamber) of 9 November 2010.
[24] See, for example, Marcin Kiełbasa, “The Internal Market Freedoms vs. Social Rights in the European Union law – a fragile balance or a weakness of the latter’s protection?”, Proceedings of the 1st Electronic International Interdisciplinary Conference, September 2012, pp. 317-318, available at: http://www.eiic.cz/archive/?vid=1&aid=2&kid=20101-19 ; Monika Schlachter, “Reconciliation between fundamental social rights and economic freedoms”, Contribution to the Conference on Fundamental Social Rights and the Posting of Workers in the Framework of the Single Market, 27-28 June 2011, pdf available at : http://ec.europa.eu/social/BlobServlet?docId=6923&langId=en
[25] Recording of the Conference available at: http://www.coe.int/en/web/turin-european-social-charter/turin-forum-on-social-rights-in-europe
[26] The “Stiglitz Report” (Report of the Commission on the Measurement of Economic Performance and Social Progress): http://www.insee.fr/fr/publications-et-services/dossiers_web/stiglitz/doc-commission/RAPPORT_anglais.pdf
[27] For the opinion of the Committee of Social Rights concerning violations of the Social Charter in Greece, see General Federation of employees of the national electric power corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v. Greece, Complaint No. 65/2011, Decision on the Merits of 23 May 2012; General Federation of employees of the national electric power corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v. Greece, Complaint No. 66/2011, Decision on the Merits of 23 May 2012
[28] The European Union as a Community of values: safeguarding fundamental rights in times of crisis, p.15, http://fra.europa.eu/sites/default/files/fra-2013-safeguarding-fundamental-rights-in-crisis_en.pdf
[29] Professor Olivier De Schutter has previously encouraged a mainstreaming approach, which he argues would be preventive, promote institutional learning and external consultation (expert and civil society) and increase transparency. cf. Olivier De Schutter, The Implementation of the Charter by the Institutions of the European Union, CRIDHO Working Paper 2013/1, p.17 http://cridho.uclouvain.be/documents/Working.Papers/CRIDHO%20WP-2013-1-ODeShutterCommentaryEUCharter.pdf
[30] http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1458294283747&uri=CELEX:52016SC0050
[31] ‘At a glance - Maternity and paternity leave in the EU’ http://www.europarl.europa.eu/RegData/etudes/ATAG/2014/545695/EPRS_ATA(2014)545695_REV1_EN.pdf
[32] cf. Conclusions 2015, Statement of Interpretation on Article 19§6 – language and integration tests, https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680593904
[33] Case C-540/03, European Parliament v. Council of the European Union, judgment of 27 June 2006
[34] De Schutter, L'adhésion de l'Union européenne à la Charte sociale européenne, EUI Working Paper LAW No. 2004/11, updated 8 July 2014, pp.21-27. Available at : http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2475754
[35] De Schutter, L'adhésion de l'Union européenne à la Charte sociale européenne, op. cit. pp.37-38
[36] CJEU, Opinion 2/2013, 18 December 2014, http://curia.europa.eu/juris/document/document.jsf?docid=160882&doclang=EN
[37] Olivier De Schutter, The European Social Charter in the context of implementation of the EU Charter of Fundamental Rights, Study for the AFCO Committee, p.19.
[38] C.J., 26 October 1982, Kupferberg, 104/81, Rec., p. 3641, point 14
[39] See further, De Schutter, L'adhésion de l'Union européenne à la Charte sociale européenne, op. cit. pp. 28-29
[40] European Committee of Social Rights, General Federation of employees of the national electric power corporation (GENOP-DEI) and Confederation of Greek Civil Servants' Trade Unions (ADEDY) v. Greece, Complaint No. 65/2011, decision on the merits of 23 May 2012
[41] Olivier De Schutter, L'adhésion de l'Union européenne à la Charte sociale européenne, op. cit. p.19
[42] CJ, 25 July 1991, Stoeckel, Case. C-345/89, Rec., p. I-4047
[43] See, for example, Michele Nicoletti, General Report of the High Level Conference on the European Social Charter, paras 129-134. Available at: https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168048acf8