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SOCIAL RIGHTS AND POLICIES IN THE EUROPEAN UNION NEW CHALLENGES IN A CONTEXT OF ECONOMIC CRISIS

LUIS JIMENA QUESADA Professor of European and Contitutional Law (University of Valencia) Former President of the European Committee of Social Rights (Council of Europe)

Valencia, 2016

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© De esta edición, Tirant lo Blanch y Publicacions de la Universitat de València Edita: Tirant lo Blanch Publicacions de la Universitat de València Email:tlb@tirant.com www.tirant.com Librería virtual: www.tirant.es ISBN: 978-84-9119-637-2 MAQUETA: Tink Factoría de Color Si tiene alguna queja o sugerencia, envíenos un mail a: atencioncliente@tirant.com. En caso de no ser atendida su sugerencia, por favor, lea en www.tirant.net/index.php/empresa/politicas-de-empresa nuestro Procedimiento de quejas.

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ABBREVIATIONS Art. Article AMIF Asylum, Migration and Integration Fund CEEP European Centre of Employers and Enterprises providing public services Cf. Compare CFREU Charter of Fundamental Rights of the European Union EAEC European Atomic Energy Community (Euratom) ECB European Central Bank ECHR European Convention on Human Rights ECJ Court of Justice of the European Union ECSC European Coal and Steel Community ECtHR European Court of Human Rights ECSR European Committee of Social Rights EEC European Economic Community E.g. For example EP European Parliament ESC European Social Charter ESM European Stability Mechanism ETUC European Trade Union Confederation EU European Union FRA Fundamental Rights Agency FRP Fundamental Rights Platform Id. The same ILO International Labour Organisation IMF International Monetary Fund MoU Memorandum of Understanding OMC Open Method of Coordination Op. cit. In the work cited OSCE Organization for Security and Cooperation in Europe P. Page(s) Para. Paragraph

Abbreviations

SDC SEA TEEC TEU TFEU UNICE

Social Dialogue Committee Single European Act Treaty establishing the European Economic Community Treaty on European Union Treaty on the Functioning of the European Union Union of Industrial and Employersâ€™ Confederations of Europe (currently, BUSINESSEUROPE: Confederation of European Business)

Altiero Spinelli said: “The road forward is neither easy nor safe, but must be pursued and it will be”. And one Luis Jimena’s son added: “Continue to be Unitors of a Happy Europe”.

FOREWORD This book intends to be a useful tool for both students and researchers. As far as students are concerned, it presents social rights in the EU as a kind of pilot block not only to approach an essential set of fundamental rights, but also to better understand the complexity of the EU legal sources (primary and secondary law), the difficult distribution of competences between the EU and the Member States (through social policy) as well as the complicated functioning of the EU institutional system. Indeed, the main areas of EU Law are submitted to scrutiny in theory and in practice in order to show (through the study of social rights and policies in a context of economic crisis) the transversal importance of the community acquis in our daily lives both as citizens and legal operators. From this point of view, the discussions on European economic governance with Professor Antonio Bar Cendón (Jean Monnet Chair “ad personam” of EU Law and Politics at the University of Valencia) in these fields have been particularly helpful. At the same time, the exchanges on European social policy within the research group directed by Professors Hermann-Josef Blanke (University of Erfurt) and Stelio Mangiameli (University of Teramo) have also been extremely fruitful. In relation to the researchers, this monograph shares likewise a profound reflection (in terms of European Constitutional Law and multi-level constitutionalism) on the current challenges for the effectiveness of social rights under a critical economic and financial scenario. From this perspective, this book has been developed within the framework of the research project “Financial Constitution versus Welfare Constitution. Redifining Autonomous and Welfare State ac-

Foreword

cording to the principle of budgetary stability” (DER2013-48327C3-3-R) funded by the Ministry of Economy and Competitiveness (main researcher: Professor Manuel Terol Becerra, Pablo de Olavide University of Seville), as well as of the research group “Human Rights and European Social Charter” (GIUV2013-148, director: Professor Carmen Salcedo Beltrán, University of Valencia). Finally, the contents presented in this book are inspired by the most recent social rights developments having emerged in the so-called “Turin process” or “Turin movement”, which harmoniously focuses joint efforts of the Council of Europe and the EU to consolidate the European Social Charter as a veritable European pact for the social stability of the Council of Europe’s three pillars: social democracy, the welfare state and social rights. The main source of inspiration has been my unique experience within the European Committee of Social Rights and I am very grateful to my former friends and colleagues of the Committee and the Department of the European Social Charter. With such a spirit, in his last Report (2015) State of Democracy, Human Rights and the Rule of Law in Europe, the Secretary General of the Council of Europe, Thorbjørn Jagland, has highlighted that the Social Charter “represents the social constitution of Europe and is an essential component of the continent’s human rights architecture. (…) There is an urgent need to enhance existing synergies” between the law of the EU and the Charter. In the same line of action, in his last State of the Union address in September 2015, the President of the European Commission, Jean-Claude Juncker, announced the development of a “European Pillar of Social Rights” and, in connection, social and economic rights are a EU priority for cooperation with the Council of Europe in 2016-2017 by “reinforcing regular dialogue and cooperation with the CoE on the interaction between the European Social Charter and the laws and policies of the EU” (priorities adopted by the Council of the EU on 18 January 2016). Ultimately, such harmony should lead to synergies aiming at reaching the best attainable standard for social rights in the EU.

1. INTRODUCTION TO THE EUROPEAN SOCIAL MODEL IN THE FRAMEWORK OF THE GLOBAL ECONOMIC CRISIS 1. RELATIVIZATION OF THE IMPACT OF THE ECONOMIC CRISIS The adoption of austerity measures, as such, is neither positive nor negative. The problem lies in their conception in an unbalanced manner by forgetting that the goal of economics (like law) should be at the service of people. Unfortunately, the concept of austerity measures (in economic and legal terms), especially within the European Union (EU) in the context of the present crisis of the 2000s, appears to have asymmetrically transmitted a legacy of shared debt, instead of producing a common heritage of prosperity. However, when reading the texts of the two major European organizations (the Council of Europe —founded in 1949 and composed of 47 countries— and the EU created in 1951-1957 and integrated by 28 Member States), one may find this common idea of achieving greater unity through economic and social progress based on the observation of minimum standards in the field of human rights. Moreover, the objective set out in the EEC Treaty of 1957 according to which “the removal of existing obstacles calls for concerted action in order to guarantee a steady expansion a balanced trade and fair competition” is not necessarily contradictory to the dynamics of the international social concertation that (to avoid loss of external competitiveness of a country) guides the introduction of all social progress and, consequently, also inspired the adoption of the European Social Charter in 1961. Indeed, the adjective “social” was explicitly added to the definition of the European economic model late in the primary law of the EU, particularly in the Lisbon Treaty. Nevertheless, the European Social Charter of 1961 (ESC), which reflects to a large extent the European social model, has been ratified by all Member States of the EU (in

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most cases even before EU membership). For this reason, it is incomprehensible that some EU Member States did not accept at first a non-binding instrument such as the Community Charter of the Fundamental Social Rights of Workers of 1989 (which does not compete with the 1961 Social Charter, but is rather based on it)1, or they have also articulated a confusing opt-out clause from the Charter of Fundamental Rights of the European Union2 (CFREU, whose catalogue of social rights —especially those under the heading “Solidarity”3— has been based precisely on the 1996 Revised European Social Charter of the Council of Europe)4.

CLAPHAM, A.: “Is there any Competition between the two Social Charters?”, Affari sociali internazionali, No. 1, 1992, p. 189-198. See also, mutatis mutandis, LUKAS, K.: “The Fundamental Rights Charter of the European Union and the European Social Charter of the Council of Europe: Partners or Rivals?”, in PALMISANO, G. (Ed.): Making the Charter of Fundamenal Rights a Living Instrument, Ed. Nijhoff/Koninklijke Brill Nv, Leiden, 2015, p. 222-244. E.g. Protocol no. 30 appended to the treaties and concerning the application of the EU Charter to Poland and the United Kingdom, restricts its interpretation by the Court of Justice and the domestic courts of these two countries, in particular concerning the rights on “Solidarity”. ALEGRE MARTÍNEZ, M.A.: “Los derechos sociales en la Carta de derechos fundamentales de la Unión Europea”, in JIMENA QUESADA, L. (Coord.): Escritos sobre Derecho Europeo de los Derechos Sociales, Tirant lo Blanch, Valencia, 2004, p. 63-111, and TUR AUSINA, R.: “Luces y sombras de los derechos sociales en la Carta de los Derechos Fundamentales de la Unión Europea”, Revista Europea de Derechos Fundamentales, No. 13, 2009, p. 323-349. The Explanations of the following provisions of the EU Charter (established by the Praesidium of the Convention which drafted the EU Charter) mention the provisions of the European Social Charter (ESC) as a source of law: Explanations on Art. 14 (the right to education: Art. 10 ESC), on Art. 15 (freedom to choose an occupation and right to engage in work: Art. 1§2 ESC), on Art. 23 (equality between men and women: Art. 20 ESC), on Art. 25 (the rights of the elderly: Art. 23 ESC), on Art. 26 (integration of persons with disabilities: Art. 15 ESC), on Art. 27 (workers’ right to information and consultation within the undertaking: Art. 21 ESC), on Art. 28 (right of collective bargaining and action: Article 6 ESC), on Art. 29 (right of access to placement services: Art. 1§3 ESC), on Art. 30 (protection in the event of unjustified dismissal: Art. 24 ESC), on Art. 31 (fair and just working conditions: Art. 3 ESC concerning §1 of Art. 31 and Art. 2 ESC concerning §2 of this provision), on Art. 32 (prohibition of child labour and protection of young people at work: Art. 7 ESC), on Art. 33 (family and professional life: Arts. 8 and 27 ESC) on Art. 34 (social security and social assistance: Art. 12 ESC concerning §1 of Art. 34, Arts. 12§4 and 13§4 ESC con-

Introduction to the European Social Model in the framework…

It is obvious that assessing the impact of a global economic crisis is not a novelty for Europe and the rest of the world. Indeed, after the entry into force of the 1961 Social Charter (in February 1965), the energy crisis of the early seventies of the last century also raised problematic questions which unfortunately are not currently unknown, i.e. housing crisis5 or high rate of unemployment6, which were approached by the monitoring body of the Social Charter (the European Committee of Social Rights, ECSR). In any case, the ECSR has proceeded to a balanced assessment between the possible restrictions and the necessity of respecting the positives obligations imposed by the Social Charter.

2. FOUNDATIONS OF THE SOCIAL DIMENSION OF EUROPE In the context of the current economic crisis, the European Social Charter of the Council of Europe can be seen as an alternative European Pact for Stability, also in the EU. First of all, it is worthwhile recalling that, like the 1950 European Convention on Human Rights (ECHR), the 1961 European Social Charter derives from the Universal Declaration of Human Rights.

cerning §2 of this provision and Art. 13 ESC concerning §3 of this provision) and on Art. 35 (health care: Arts. 11 and 13 ESC). ECSR, Conclusions IV, 1975, United Kingdom: “The Committee fully appreciated the difficulties arising from the housing crisis, but it could not retain this fact as valid argument for not taking appropriate steps in accordance with the Charter”. ECSR, Conclusions IV, 1975, Germany: the Committee welcomes “the fact that the ban on the recruitment of foreign workers issued by the Federal Republic following the petrol crisis did not apply to nationals of the Contracting Parties to the Charter”. See also Conclusions IV, 1975, Italy: “the effects of the oil crisis seemed to have affected the employment situation in Italy in 1974 much less than in other Western European countries. (…) It seemed at least to prove that Italy had made a considerable effort to honour the undertaking arising out of the Social Charter. The report admittedly remained rather vague as to specific measures —both short and medium-term— which are claimed to have been taken in order to maintain, and indeed improve the employment situation in the different categories of the working population, especially among young people, women, and elderly workers, and to remove certain cases of regional imbalance”.

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Both the Convention and the Charter were adopted within the Council of Europe in order to effectively guarantee both civil and political as well as social rights. Both the ECHR and the ESC are international treaties and, obviously, they are legally binding. They both also established specific monitoring bodies (the European Court of Human Rights —ECtHR— and the ECSR) to ensure the compulsory character and effectiveness of the rights. The Social Charter of 1961 recognized a first list of social rights related to work and non-discrimination, social protection and vulnerable people, as well as the so-called reporting system as a mandatory monitoring mechanism. The Social Charter tough evolved and was improved: in 1988, a first Protocol extended the range of protected social rights; in 1995, another Protocol provided for a judicial procedure of collective complaints; and, in 1996, the revised Charter added other important rights7 and it also established a consolidated version of the Charter, including the whole catalogue of rights and the clauses incorporating the two mechanisms (national reports and collective complaints)8. In spite of the diversity of commitments made by each EU Member State under the Social Charter “system” on the basis of its sovereign will9, normative interactions between the Social Charter and EU law are explicit. Firstly, the references to the Social Charter have been confirmed by the current sources of EU primary law after the entry

In some cases as a result of the positive influence of International NGOs, for example in the elaboration of Arts. 30 and 31 on the protection against poverty and social exclusion as well as the right to housing. At present, among the 47 Member States of the Council of Europe, 43 (with the exception of Liechtenstein, Monaco, San Marino and Switzerland) have ratified the Social Charter, 14 are bound by the 1961 original Charter and 29 by the 1996 revised Charter. And 15 have accepted the collective complaints procedure. Indeed, the current 28 EU Member States are part of the Charter “system” (Charter of 1961, Additional Protocol of 1988, Additional Protocol of 1995, Revised Charter of 1996), with differences as to the commitments made: 8 states are bound by the 1961 Charter (5 of which are also bound by the 1988 Protocol) and 20 by the Revised Charter. The 14 EU Member States that have accepted the 1995 Protocol providing for a collective complaints system comprise the great majority of Contracting Parties that have accepted this Protocol (the remaining Party is Norway).

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into force of the Treaty of Lisbon10, including the CFREU11. Secondly, the links between the Social Charter and the sources of EU secondary law are also important in both directions as well12. Finally, the Social Charter is also presented in significant non-binding instruments of the EU, precisely related to legal synergies between the Council of Europe and the EU and the debate on austerity measures13. However, these normative links appear to be more complex in practice. On the one hand, in contrast with the “Bosphorus doctrine” (presumption of compatibility between the ECHR and EU law)14, the ECSR has not accepted a general presumption of compatibility between social standards of EU law and the Social Charter. Such issue has been held by the ECSR in controversial areas such as organisation of working time15 or delocalisation of undertakings and social dumping16, without forgetting anti-crisis legislation and austerity measures (see Chapter 9). This lack of presumption is very significant “in view of the overlapping membership of the European Union and the Council of Europe, and the far-reaching impact of EU law on domestic law”17, which

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Both the TEU (Preamble, §5) and the TFEU (Art. 151). Preamble and Explanations appended to the CFREU. As it is well known, the Community Charter of the Fundamental Social Rights of Workers (a declaration adopted in 1989 by eleven Heads of State and Government of the European Economic Community) was explicitly inspired by the Charter of 1961. On the basis of this declaration, the community institutions then adopted a series of directives on labour law. On the other hand, the Explanatory Report of the Revised Social Charter makes clear that some of its provisions were inspired by those directives. E.g. European Parliament Resolution of 27 February 2014 on the situation of fundamental rights in the European Union (2012): “The European Parliament, (…) – having regard to the European Social Charter, as revised in 1996, and the case law of the European Committee of Social Rights, (…)”. ECtHR, Bosphorus Hava Yollari Tutizim ve Ticaret Anoniom Sirketi v. Ireland, Application no. 45036/98, Judgment of 30 June 2005. E.g. Decision on the merits of 23 June 2010 on Complaint No. 55/2009, Confédération Générale du Travail v. France, §§31-42. E.g. Decision on admissibility and the merits on Complaint No. 85/2012, Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v. Sweden, §§72-74. RYNGAERT, C.: “Oscillating between Embracing and Avoiding Bosphorus: The European Court of Human Rights on Member State Responsibility for Acts of

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is admittedly notorious in the field of social legislation18. From this point of view, the complexities of the judicial dialogue are accentuated, since the ECSR is increasingly occupying a place next to the two European Courts (Court of Justice of the EU —ECJ— and the ECtHR) in this area19. On the other hand, the legal instruments and mechanisms for economic stability20 have paradoxically provoked a component of instability and illegitimacy within the EU21. In addition, the difficulties of the judicial dialogue at European horizontal level have become even more complex in terms of stability and legitimacy when classic misgivings are promoted by constitutional courts, due to the classic reluctance concerning sovereignty22.

International Organisations and the case of the European Union”, European Law Review, No. 39, 2014, p. 191. STANGOS, P.: “Les rapports entre la Charte sociale européenne et le droit de l’Union européenne: le rôle singulier du Comité européen des Droits Sociaux et de sa jurisprudence”, Cahiers de droit européen, No. 49, 2013, p. 319-393. DOUGLAS-SCOTT, S.: “A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis”, Common Market Law Review, No. 43, 2006, p. 629. See more extensively GORDILLO PÉREZ, L.I. (Dir.): Constitutionalism of European Supranational Courts. Recent developments and challenges, Aranzadi, Cizur Menor, 2015. As well known, the European Stability Mechanism (ESM) is the permanent crisis resolution mechanism for the countries of the euro area. The ESM issues debt instruments in order to finance loans and other forms of financial assistance to euro area Members States. The decision leading to the creation of the ESM was taken by the European Council in December 2010. The euro area Member States signed the intergovernmental treaty establishing the ESM on 2 February 2012. It is therefore reasonable to denounce that attempts to get Europe back on track rely too heavily on technocratic governance and abandon some of the EU’s core values. In this sense, SCHWARZ, M.: “Memorandum of Misunderstanding - The doomed road of the European Stability Mechanism and a possible way out: Enhanced cooperation”, Common Market Law Review, No. 51, 2014, p. 389-424. E.g., the request for a preliminary ruling from the Bundesverfassungsgericht (Germany) lodged on 10 February 2014 - Peter Gauweiler and Others, Case C-62/14, Judgment of 16 June 2015. On this point, see PANZERA, C.: “Il bello dell’essere diversi. Corte costituzionale e Corti europee ad una svolta”, Rivista Trimetrale di Diritto Pubblico, Anno LIX, Fasc. 1, 2009, p. 1-43, VIDAL PRADO, C.: El impacto del nuevo Derecho europeo en los Tribunales constitucionales, Colex, Madrid, 2004, and TAJADURA TEJADA, J. & DE MIGUEL BÁRCENA, J. (Coords.): Justicia Constitucional y Unión Europea, Centro de Estudios Políticos y Constitucionales, Madrid, 2008.

2. GENESIS AND EVOLUTION OF SOCIAL RIGHTS AND POLICIES IN THE EU 1. THE SOCIAL POLICY AS A PART OF THE OBJECTIVES OF THE EUROPEAN CONSTRUCTION The current “social objectives” of the European construction are established in Art. 151 TFEU23. This provision, and in particular its last paragraph (harmonisation of social systems), has its precedent in the opening provision of Chapter 1 (“Social Provisions”) of Title III (“Social Policy”) of the Treaty establishing the European Economic Community (TEEC), that is, Art. 11724. Indeed, the 1957 TEEC contained few provisions on social policy, which was conceived closely related to two important goals: free

Art. 151 TFEU: “The Union and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion. To this end the Union and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Union economy. They believe that such a development will ensue not only from the functioning of the internal market, which will favour the harmonisation of social systems, but also from the procedures provided for in the Treaties and from the approximation of provisions laid down by law, regulation or administrative action”. Art. 117 TEEC: “Member States hereby agree upon the necessity to promote improvement of the living and working conditions of labour so as to permit the equalisation of such conditions in an upward direction. They consider that such a development will result not only from the functioning of the Common Market which will favour the harmonisation of social systems, but also from the procedures provided for under this Treaty and from the approximation of legislative and administrative provisions”.

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competition and worker mobility. In this regards, it has been noted that economic integration was the primary objective of the EEC and its predecessor, the European Coal and Steel Community (ECSC), and the founding treaties reflected this25. In this sense, even the treaties establishing the ECSC in 1951 and the European Atomic Energy Community (EAEC) in 1957 emphasized social policy more than the Treaty of Rome did. The reason of this: because they referred to specific industries (coal, steel, nuclear energy), the ECSC and EAEC had fairly strong social policy mandates in order to deal with the employment and health effects of these rapidly changing industries. The ECSC had funds to deal with redundant workers, and the EAEC was empowered to set health and safety standards. Then, the adoption of the Single European Act (SEA) in 1986 gave a new impetus to several areas of social policy, especially in the working environment (as regards the health and safety of workers) and in the social dialogue (new articles 118a and 118b TEEC). The SEA also introduced in its preamble the first reference to the 1961 European Social Charter in the founding treaties. According to the Preamble of the SEA, Member States were “determined to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice”. This reference to the main social rights treaty of the Council of Europe acquired binding value with the 1997 Amsterdam Treaty through its inclusion in the former Art. 117 TEEC, which became Art. 136 TEC, whose content has remained identical in Art. 151 TFEU with the exception of the updated notions of “Union” (instead of “Community”) and “internal market” (instead of “common market”)26. In real terms, like the Treaty of Rome (TEEC), a first approach to “social policy” in the Lisbon Treaty, shows that the provision serving as a basis or introduction to new Title X (“Social Policy”) of the Trea-

ANDERSON, K.M.: Social Policy in the European Union, Palgrave Macmillan, London, 2015, p. 52-54. See also Art. III-209 of the Treaty establishing a Constitution for Europe.

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ty on the Functioning of the European Union [Art. 151 TFEU (ex Art. 136 TCE)] introduces an apparent prevalence of commercial objectives over the Union’s social objectives. In particular, Art. 151, while it explicitly mentions “the European Social Charter signed at Turin on 18 October 1961” (together with the 1989 Community Charter of the Fundamental Social Rights of Workers), makes it clear that the social dimension must take into account “the need to maintain the competitiveness of the Union economy”. In parallel, in the Preamble of TEU Member States confirm “their attachment to fundamental social rights as defined in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers”, whereas Art. 3, paragraph 3 TEU declares that “the Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment”. From a formal point of view, the contribution of the Lisbon Treaty to the social policy seems merely terminological. Indeed, apart from including the area of “social policy” in the scope of “share competence between the Union and the Member States”, the Lisbon Treaty states that the heading of Title XI of “social policy, education, vocational training and youth” (old numbering of the Treaty establishing the European Community, TEC) shall be replaced by the heading “social policy” with new renumbering (Title X) in TFEU. In this context, the adjective “social” accompanies the principle of the “market economy” only once in the Lisbon Treaty (in the above mentioned Art. 3-3 TEU) and, therefore, it can also be maintained that the adjective “social” has less weight than the adjective “economic”. From this perspective, while in the economic sphere advances in the EU have been occurring evenly, social progress has been introduced “asymmetrically” (according to the dynamic of the “Europe of different speeds”). Thus, in 1989 the United Kingdom was the only one of the then twelve member countries of the Union that did not sign the Community Charter of the Fundamental Social Rights of Workers, even

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though this was conceived as a mere policy document with no compulsory value. In 1992 it was also necessary to include the nucleus of social policy as a Protocol attached to the Maastricht Treaty to make an opting out clause possible, once again for the United Kingdom. For their part, the 1997 Amsterdam Treaty improved the extent of the anti-discriminatory clause (new Art. 13 TEC), while the 2001 Nice Treaty created the new Social Protection Committee and tried to better implement the “open method of co-ordination”, compensating the achievement of the market with the protection of social rights. In truth, the adjective “social” as an element associated with the “market economy” is merely incidental. Ultimately, the idea of a “European social and economic constitution” does not project a balance between the social and the economic, but rather an imbalance clearly in favour of economic issues. Furthermore, the entry into force of the Lisbon Treaty took place in the context of the economic crisis27. By recalling the origins of this Title X TFEU and the weak status of social policy, it has been stated that debates about the relationship between social and economic policy in the Treaty of Rome negotiations presaged the debates that would shape EU social policy for the next 55 years. Indeed, the treaty left a partial vacuum in terms of social policy because goals were not matched with effective instruments28. The context of the economic and financial crisis since 2008 has even weakened those social policy instruments29, since the development of such policy has not been consolidated in accordance with “the procedures provided for in the Treaties”, but following new controversial procedures under the dynamics of the Troika (see chapter 9).

JIMENA QUESADA, L.: “The Social Policy in the light of the Lisbon Treaty”, in Studia z zakresu prawa pracy/Studies on Labour Law and Social Policy (in honour of Andrej M. Swiatkowski), Uniwersytetu Jagiellonskiego, Krakow, 2009, p. 455-456. ANDERSON, K.M.: Op. cit., p. 52-54. See GARCÍA NINET, J.I. (Dir.): El impacto de la gran crisis mundial sobre el Derecho del Trabajo y de la Seguridad Social. Su incidencia en España, Europa y Brasil, 2008-2014, Ariel, Barcelona, 2014.

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2. BALANCING EUROPEAN AND NATIONAL PARAMETERS TO ACHIEVE THE TRANSVERSAL SOCIAL POLICY Indeed, in spite of the explicit distribution of competences between the EU and Member States through the Lisbon Treaty, it is true that a certain degree of ambiguity still appears when facing the concrete delimitation between European and National parameters to achieve the transversal social policy, insofar as the distinction between objective, competence and other related notions remains complex. As an example of this complexity, in his Opinion delivered on 16 July 2015 (joined Cases C‑340/14, Trijber, and C‑341/14, Harmsen), Advocate General Szpunar considered that it is “otiose to establish a difference between the terms ‘coordination’, ‘approximation’ and ‘harmonisation’. As I understand it, these terms are used interchangeably. It should be borne in mind in this context that the term ‘harmonisation’ was used in the Treaty of Rome in one instance only [precisely, in Art. 117(2) EEC, now Art. 151 TFEU: ‘harmonisation of social systems’], before it was gradually resorted to across the whole FEU Treaty” (point 52). Another example of such complexity is provided by the Opinion of Advocate General Jääskinen delivered on 15 September 2011 (case C-313/10, Jansen) in the context of a preliminary ruling from the Landesarbeitsgericht Köln (Higher Labour Court, Cologne, Germany) concerning the interpretation of the framework agreement on fixed-term work concluded on 18 March 1999 (annexed to Council Directive 1999/70/EC of 28 June 1999). In particular, the German Government claimed, that, in matters of social policy, the Member States have retained a certain degree of legislative competence. From this perspective, Advocate General Jääskinen agreed that under Art. 151 TFEU and following the measures adopted by the EU and the Member States in that domain must take account of the varied national practices. Accordingly, Directive 1999/70 provides that the Member States have a wide discretion, with regard to the choice of form and methods, in adopting the measures to be taken in order to implement the framework agreement annexed thereto, and points out that that agreement lays down only minimum requirements and general principles in respect of fixed-term work.

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However, this Advocate General adds that it is not disputed that even in the spheres of competence which they have retained, the Member States must act in a way which respects the wording and objectives of EU law, as is apparent inter alia from the third paragraph of Art. 288 TFEU. In this sense, as regards the terms used in the framework agreement but not specifically defined therein, “Directive 1999/70 and the aforementioned agreement allow Member States to define such terms in conformity with national law or practice, provided that the definitions adopted at national level respect the content of the framework agreement and do not undermine its purpose, its aims or its effectiveness. In particular, clause 5(1)(a) of the framework agreement does not define what is meant by ‘objective reasons’ within the meaning of that provision. The lack of guidance from the authors of the framework agreement has created uncertainties as to the meaning and scope of that term. The Court has held that the term must be interpreted taking account of the objectives pursued by the framework agreement and of the context of that clause” (point 32)30. These requirements established by the ECJ (well-founded reasons based on budgetary rules) in the field of social policy when consolidating European parameters deriving from EU law (Directive 1999/70) have nonetheless been counterbalanced by the Court of Luxembourg by conferring a more important weight to national parameters (or, more exactly, to state margin of discretion) based on anti-crisis legislation incorporating austerity measures deriving from the operations of the Troika. A recent illustration of this approach is offered by Case C‑117/14 (Nisttahuz Poclava, Judgment of 5 February 2015), concerning the employment contract of indefinite duration to support entrepreneurs introduced by Law 3/2012 of 6 July 2012 on urgent

As a result, the opinion of the Advocate General was that “Clause 5(1) of the framework agreement is to be interpreted as precluding legislation such as that at issue in the main proceedings which is based on budgetary reasons that are too general to satisfy the requirements of the Court’s case-law concerning the objective reasons justifying the renewal of fixed-term contracts within the meaning of that provision”, in order to prevent the abusive use of successive fixed‑term contracts. This conclusion has not had any substantial follow-up before the ECJ, since by Order of the President of the Second Chamber of the ECJ of 25 October 2011 the case was removed from the Register of the Court.