Professor Catherine Barnard, Trinity College Cambridge
Contrary to critics, the EU social model (ESM) is not dead, argues Professor Barnard. Although facing significant challenges, the ESM has historically demonstrated a capacity for renewal. This post explores potential future directions for the model.
While some believe a Social Union is necessary for Europe, this post focuses on a potentially more agreeable agenda for the EU-28, particularly in the area of employment law. It acknowledges the current political climate and proposes realistic solutions.
Social compact
Professor Barnard proposes a European Social Compact mirroring the Fiscal Compact. This would emphasize the significance of social policy within the EU, addressing the concern that economic interests often supersede social ones.
This compact would include: a statement affirming the EU’s commitment to improving citizens’ living and working conditions; recognition of other social rights documents, like the European Social Charter of 1961; and a requirement for the Broad Economic Policy Guidelines to consider social factors. More significantly, it would expand the European Central Bank’s mandate to encompass economic growth, employment, and social cohesion, not just price stability.
While ideally applicable to all 28 member states through a Treaty amendment, the present political situation makes this improbable. Alternatives include a separate treaty like the Fiscal Compact or a less formal agreement like the Euro Plus Pact.
Medium-term measures
Recognizing the Social Compact as ambitious, Professor Barnard proposes additional measures focusing on areas where EU action is justified and relevant to the European Semester: aging populations, enforcement, and privatization consequences.
First, the EU should address the impact of aging populations on public finances. This aligns with the EU’s existing expertise in discrimination by tackling age discrimination, extending working lives, and promoting flexible working. Additionally, developing family-friendly policies, including childcare and eldercare, could be explored, potentially through EU legislation on issues like the right to request reduced working hours.
Second, the EU should address the mistreatment of migrant workers in certain sectors. While the new Directive 2014/54 on free movement of workers is a positive step, proactive enforcement is crucial. Professor Barnard suggests exploring greater coordination of labor inspections at the EU level, potentially even a dedicated body.
Furthermore, the emergence of new types of employment contracts (zero-hour, internships, etc.) raises questions about the applicability of traditional employment protections. The EU should consider creating a new contract category, as proposed by Freedland, providing a gateway to employment rights.
Third, the EU should examine the employment law implications of privatizing publicly owned entities. Professor Barnard questions whether the Transfer of Undertakings Directive 2001/23 needs revision to ensure adequate worker rights during and after transfers and how it interacts with public procurement processes.
Legal basis to act
The EU possesses legal grounds to act on these issues under various Treaty articles, though political will in some member states is lacking. Therefore, enhanced cooperation among willing member states, as permitted under EU law and potentially supported by the Unitary Patent case, could be considered.
Despite recent challenges, the EU and its social model remain standing. The current focus on economic governance should not overshadow the social dimension. There’s growing awareness of this imbalance, and the new European Parliament and Commission might prioritize social policy. The EU’s ability to revive its social policies needs to be demonstrated once again. There is no shortage of ideas for action.
A full version of these comments has appeared in (2014) 67 Current Legal Problems 1
Barnard & Peers: chapter 20
[1] Frank Vandenbroucke and Bart Vanhercke note, European Social Union: Ten Tough Nuts to Crack (Friends of Europe, 2014), 16. See also Commissioner Andor, ‘Social Dimension of the Economic and Monetary Union: what lessons to draw from the European Elections’, 13 June 2014 http://europa.eu/rapid/press-release_SPEECH-14-455_en.htm.