THE EU DIMENSION OF SOCIAL RIGHTS

1. Summer School, Cagliari 13-27 July 2013Workshop: 16th July 2013Tutor: Roberta DESSIroberta.dessi@europarl.europa.eu THE EU DIMENSION OF SOCIAL RIGHTS

2. THE EU DIMENSION OF SOCIAL RIGHTS TO WHAT EXTENT SOCIAL RIGHTS DO/CAN BE PROTECTED AT THE EU LEVEL? ARE SOCIAL RIGHTS GARANTEED AT THE EU LEVEL? SHOULD THEY BE PROTECTED BY EUROPEAN LAW?

3. Issue n. 1 SOCIAL RIGHTS AS ‘NATIONAL’ RIGHTS There are differentmodelsof ‘Welfare State’ whichreflectdifferentsocieties and constitutionalsystems. Social rightsas ‘POSITIVE’ rights Whichrequire a direct or indirect action by the State

4. Issue n. 1 (a) HOW IS THEIR PROTECTION GARANTEED AT THE EU LEVEL? • EU Charter offundamentalrights (Nice, 2000): • Article 14. Right to education: 1. Everyone has the right to education and to have access to vocational and continuing training. 2. This right includes the possibility to receive free compulsory education. 3. The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right.

5. Issue n. 1 (b) • Article 15. Freedom to choose an occupation and right to engage in work: 1. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation. 2. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State. • Article 34. Social security and social assistance: 1. The Union recognizes and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Community law and national laws and practices. 2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices. 3. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Community law and national laws and practices.

6. Issue n. 1 (c) • Art. 35. Health care: • Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. • A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities. 2. EU primary and secondaryLaw; 3. EU projects. Europe 2020/the European social fund:  project by the EU Commission which is funding tens of thousands of local, regional and national employment-related projects throughout Europe: from small projects run by neighbourhood charities to help local disabled people find suitable work, to nationwide projects that promote vocational training among the whole population.

7. Issue n. 1 - Highlights Shared competences (Article 4 of the TFEU): the EU and Member States are authorised to adopt binding acts in these fields. Member States may exercise their competence only in so far as the EU has not exercised, or has decided not to exercise, its own competence. However, due to the principle of subsidiarity: for shared competences, the EU may intervene only if it is capable of acting more effectively than the Member States. VS Free movementofpersons, services and capitals seeViking and Lavallcase-law ECJ: “even if the protection of fundamental rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law […] the exercise such rights does not fall outside the scope of the provisions of the Treaty and must be reconciled with the requirements relating to rights protected under the Treaty and in accordance with the principle of proportionality. VS Possibilitytoopt-out → UK’s opt-outCharter ofFundamentalRights

8. QUESTIONS Isthere a preferablelevelofprotectionof social rights? Is the EU levelofprotectionnecessary or not? How can you combine the free movementofworkers in the EU with the differentlevelsofprotectionofworkers’ rights in the MemberStates? Is the opt-out system admissible in a always more integratedEuropean system?

9. Issue n. 2 SOCIAL RIGHTS IN TIME OF ECONOMIC CRISIS As a consequence to the economic and financial crisis that Europe is facing from 2009, social rights are even in major peril of not being protected/being violated.

10. Issue n. 2 (a) Two possible positions: Social Rights as ‘rights which have a COST’. If we are facing a deep economic crisis and budgetary reduction it is not possible to ‘pay for them’ and they must be reduced. Social Rights as a ‘SOLUTION’ for the economic crisis. “In times of economic crisis it is particularly essential to ensure the protection of social rights” (Council of Europe). Increased unemployment will place a further burden on state budgets and there will be less space for social assistance at a time when needs will inevitably grow. This is likely to cause tensions there is a risk that xenophobia and other intolerance will spread further and that minorities may become targets. Italian Constitutional Court (2010): there is a ‘minimus core’ of social rights that need to be guaranteed even in a period of crisis and recession.

11. Issue n. 3 HUMAN DIGNITY relatedtoSOCIAL RIGHTS and SOCIAL CARE ▪ The case ofdisabled people McDonald Case: woman who could not safely go to toilet at night required to use incontinence pads –reference to ‘deep antipathy to using pads’. Article 1 EU Convention on HRs. Human dignity ‘Human dignity is inviolable. It must be respected and protected’

12. QUESTIONS Is it acceptable that due to economic crisis and budget restriction these rights are not guaranteed? Are there any other possible approaches? Which is the relationship between social right and economic crisis, mostly related to ‘weaker’ people?

13. Issuen. 3 • THE EU PROTECTION OF SOCIAL RIGHTS: IS SOLIDARITY AN EUROPEAN VALUE? HOW TO GARANTEE THE SAME EUROPEAN LEVEL OF RIGHTS IN DIFFERENT NATIONAL SYSTEMS? IS IT RIGHT THAT A MEMBER STATE ‘PAYS’ FOR THE PROTECTIONOF SOCIAL RIGHTS IN OTHER MEMBER STATES?

14. The ‘Europeandream’ Robert Schumandeclaration, 9th May 1950: “Europewillnotbemadeall at once or accordingto a single plan. Itwillbebuiltthrough concrete achievements, which first create a de facto solidarity. […] AllEuropeanswithoutdistinction, whetherfromeast or west, and all the overseasterritorieswillgainbenefitsfromtheirlabourofpeace”. Jose Manuel Barroso, Presidentof the EU Commission, 2008: “Peace, justice and freedom: threepillarsof the community ofsharedvalues, under the ruleoflaw, whichtodayconstitutes the EuropeanUnion. Butthereisalso a fourth pillar: solidarity.”

15. ‘The Europeandream’ (II) KeesSchuyt, Dutchsociologist and jurist, 1998: Solidarityis the head of the threemainprincipleof a welfare State and itisconstitutedas a normthatrequiresthat: “Nobodyshoulddropbelowthe levelnecessaryfor a decentexistence in a free society”. VS UNITED STATES MODEL

16. ‘The Europeandream’ (III) Martin Schultz, Presidentof the EuropeanParliament, 22nd May 2013: “Public support for the European integration process has never been as weak as it is today. For one reason or another, people in all the EU Member States currently have the impression that they are being treated unfairly. It is still the case, however, that we have to act together if we want to win back trust in the EU and support for the idea that the EU is a community of States established in a spirit of solidarity, to be demonstrated both within those States and among their peoples. Robert Schuman coined the term ‘de facto solidarity’ to describe the principle which underpinned the foundation of the European Community. We can win back trust if we produce quick, tangible results in two areas: in the fight against youth unemployment, and in the fight against tax fraud and financial crime. In Germany you often hear people say that ‘the Member States need to do their homework’. Together, here today, we must do our homework if we want to win back people’s trust. We can do that if we are prepared to demonstrate ‘de facto solidarity’ with young Europeans.

17. ‘The Europeandream’ (IV) I say this because the situation at the moment is disastrous. In many parts of Europe, young people quite simply have no hope of finding a job. In Spain, more than one young person in two is unemployed, and the figures for the Greek labour market are just as alarming: in that country, almost two-thirds of young people have no job. Throughout Europe, unemployment stands at record high levels. Young people are paying with their life chances for a crisis for which they are in no way responsible. It is scandalous that we may soon be forced to watch as a lost generation grows up in our midst, on the richest continent in the world. These young people are being cheated of their futures, and the impact on the fabric of our societies is potentially catastrophic. We must at long last recognise the fact that young people are at least as systemically relevant as the banks. Putting off a concerted effort to address the problem of youth unemployment will merely make the situation worse. Wemust act now”.

18. Issue n. 3 (a) The principle of EU solidarity: Is solidarity between States or citizens? Aren’t we all ‘European’ citizens? Which is the difference with the ‘national’ citizenship? EU as a system that provides a high economic integration but also a growing legal regulation and human rights protection; Concept of EU identity and EU demos;

19. CONCLUSIONS Humanrightsas ‘Universal Rights’: an ‘Europeandimension’ sholdn’t beincluded? Comparisonwithotherfederalsystems: which are the consequencesof a ‘federalprotection’ ofhumanrights? Solidarityclause: can the EuropeanUnion, now or in the future, befounded on the social protection and on the principleofsolidaritybetweenEuropeancitizens?