¹ [2017] OJ C428/10.

² Plomien, A, ‘EU Social and Gender Policy beyond Brexit: Towards the European Pillar of Social Rights’ (2018) 17(2) Social Policy & Society 281, p 292CrossRefGoogle Scholar.

³ The Rome Declaration of 25 March 2017 outlined the importance of a strong social Europe, based on sustainable growth, which promotes economic and social progress as well as cohesion and convergence, for the EU27 going forward.

⁴ For extensive discussion, see the various contributions to the special issue of the Journal of European Public Policy entitled ‘EU Socio-Economic Governance since the Crisis: The European Semester in Theory and Practice’ (2018), p 25.

⁵ Garben, S, ‘The Constitutional (Im)balance between “the Market” and “the Social” in the European Union’ (2016) 13 European Constitutional Law Review 23CrossRefGoogle Scholar; Garben, S, ‘The European Pillar of Social Rights: Effectively Addressing Displacement?’ (2018) 14 European Constitutional Law Review 210CrossRefGoogle Scholar. See also Scharpf, F, ‘The Asymmetry of European Integration - or Why the EU Cannot Be a Social Market Economy’ (2010) 8 Socio-Economic Review 211CrossRefGoogle Scholar. For an analysis that nuances the claims of a socio-economic asymmetry in the case law of the Court of Justice of the European Union, see Armstrong, K, ‘Economic Constitutionalism and Social Policy Coordination’ in Armstrong, K, Governing Social Inclusion: Europeanization through Policy Coordination (Oxford University Press, 2010), p 188CrossRefGoogle Scholar. As regards a broader constitutional asymmetry resulting from the economic crisis (measures) see Dawson, M and Witte, F de, ‘Constitutional Balance in the EU after the Euro-Crisis’ (2013) 76 Modern Law Review 817CrossRefGoogle Scholar and Dawson, M and Witte, F de, ‘From Balance to Conflict: A New Constitution for the EU’ (2016) 22 European Law Journal 204CrossRefGoogle Scholar.

⁶ The most important social decisions continue to be taken not in the context of the Treaty's Social Title, but in the internal market and economic governance, and while these areas may accommodate certain social goals and objectives, in the event of a clash between social and economic values, the constitutional configuration of these policy areas—and the democratic deficit that this configuration entails—will still lead to precedence being given to the latter.

⁷ Rec 12.

⁸ Rec 17.

⁹ Rec 18.

¹⁰ The Pillar was first launched by means of a Commission Recommendation (Article 292 TFEU) and subsequently endorsed by the Inter-Institutional Proclamation of 17 November 2017. In both manifestations, it is non-binding, meaning that its legal value is limited to a source of interpretation of EU law, which the Court of Justice of the European Union may use in its case law. For recommendations, their non-binding nature follows from Article 288 TFEU. Proclamations are not mentioned in the Treaties and their legal status is therefore somewhat more ‘obscure’. See Z Rasnacă, ‘Bridging the Gaps or Falling Short? The European Pillar of Social Rights and What It Can Bring to EU-level Policymaking’ (5 ETUI Working Paper, 2017), p 14.

¹¹ The European Social Charter is a Council of Europe Treaty, adopted in 1961 (CETS No 035, ratified by 23 EU Member States, including the UK) and revised in 1996 (CETS No 163, ratified by 20 EU Member States). It guarantees a broad range of human rights related to employment and working conditions, housing, education, health, medical assistance and social protection. The Charter is based on a ratification system, which enables signatory states to choose the provisions they are willing to accept. While all EU Member States are party to either the 1961 Charter or the Revised Charter, not all of them have accepted both or all provisions contained in the Charters.

¹² SWD [2017] 200 final, p 2, European Commission, Staff Working Document accompanying the Commission Communication establishing a European Pillar of Social Rights.

¹³ COM [2017] 250 final, European Commission, Communication to the Parliament, Council, the EESC and the Committee of the Regions, establishing a European Pillar of Social Rights.

¹⁴ See generally on how fundamental rights are given (further) effect through legislation in the EU legal order: Muir, E, ‘The Fundamental Rights Implications of EU Legislation: Some Constitutional Challenges’ (2014) 51 Common Market Law Review 219Google Scholar.

¹⁵ S Garben, ‘The European Pillar of Social Rights: Effectively Addressing Displacement?’, note 5 above.

¹⁶ The Commission draws this comparison itself, stating that ‘[a]s it was done for the Charter of Fundamental Rights, the proposal for an interinstitutional proclamation will be discussed with the European Parliament and the Council’. See note 13 above.

¹⁷ For a discussion, see Watson, P, ‘The Community Social Charter’ (1991) 28 Common Market Law Review 37Google Scholar.

¹⁸ Eg International Transport Workers’ Federation, Finnish Seamen's Union v Viking Line ABP, OÜ Viking Line Eesti, C-438/05, EU:C:2007:772, paras 43–44; Opinion of Advocate General Trstenjak of 24 January 2008 in Gerhard Schultz-Hoff v Deutsche Rentenversicherung Bund, C-350/06, EU:C:2008:37, para 38.

¹⁹ COM [1989] 568.

²⁰ The comparison with the 1989 Community Charter carries a little further, in the sense that like the Pillar it initially also had a ‘differentiated’ scope of application, excluding the UK. On the issue of the Pillar's territorial scope, see the discussion below at II.C.

²¹ SWD [2018] 67 final.

²² COM [2017] 343.

²³ Adopted by the Council on 22 May 2018, OJ [2018] C195/1.

²⁴ COM [2018] 51 final.

²⁵ COM [2016] 864 final.

²⁶ COM [2017] 797 final.

²⁷ As Advocate General Bobek states in his Opinion of 5 September 2018 in Torsten Hein v Albert Holzkamm GmbH & Co., Case C-385/17, EU:C:2018:666, para 38, in relation to the Working Time Directive: ‘Pursuant to Article 31(2) of the Charter, every worker has the right to an annual period of paid leave: no further details are provided on that right. Article 7(1) of Directive 2003/88, which the Court has ruled has direct effect, gives specific expression to that right’. Note however that the Court has been cautious in its approach to conceptualize the rights laid down in the Working Time Directive as a ‘specific expression’ of Article 31(2) of the Charter. See note 14 above, p 231.

²⁸ COM [2017] 253 final.

²⁹ SWD [2017] 200 final.

³⁰ COM [2018] 131 final.

³¹ COM [2018] 132 final

³² See note 2 above, p 289.

³³ European Commission, ‘European Pillar of Social Rights in Detail,’ http://ec.europa.eu/social/main.jsp?catId=1310&langId=en.

³⁴ Interpretative Communication on Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organisation of working time, [2017] OJ C165/1.

³⁵ European Commission, ‘Employment, Social Affairs and Inclusion’, http://ec.europa.eu/social/main.jsp?langId=nl&catId=89&newsId=9163&furtherNews=yes&furtherNews=yes.

³⁶ European Commission, ‘Commission Adopts Proposals for a European Labour Authority and for Access to Social Protection’ (13 March 2018) http://europa.eu/rapid/press-release_IP-18-1624_en.htm.

³⁷ European Commission, ‘Commission Takes Further Action to Better Protect Workers Against Cancer-Causing Chemicals’ (5 April 2018) http://europa.eu/rapid/press-release_IP-18-2662_en.htm.

³⁸ SWD [2018] 67 final, p 30.

³⁹ Schultz-Hoff and Stringer and Others, C-350/06 and C-520/06, EU:C:2009:18.

⁴⁰ It does mention dignity in reference to old age (Principle 15), disability (Principle 17), and minimum income (Principle 14).

⁴¹ ‘Social Pillar and Directive on Posted Workers: The Two Sides of the EU Social Policy?’ (AEDH, 25 October 2017) http://www.aedh.eu/en/social-pillar-and-directive-on-posted-workers-the-two-sides-of-the-eu-social-policy; European Economic and Social Committee, Opinion on the Revision of the Posting of Workers Directive, [2017] OJ C75/81.

⁴² See European Council, ‘Posting of Workers: Council Reaches Agreement’ (24 October 2017) https://www.consilium.europa.eu/en/press/press-releases/2017/10/24/posting-of-workers-council-reaches-agreement; European Council, ‘Employment, Social Policy, Health and Consumer Affairs Council: Posting of Workers’ (23 October 2017) https://www.consilium.europa.eu/en/meetings/epsco/2017/10/23.

⁴³ Directive 2018/957 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services, [2018] OJ L173/16.

⁴⁴ S Garben, ‘The Constitutional (Im)balance between “the Market’ and ‘the Social’ in the European Union’, note 5 above.

⁴⁵ Ibid.

⁴⁶ COM [2017] 251 final, p 4, European Commission, Proposal for an Interinstitutional Proclamation on the European Pillar of Social Rights.

⁴⁷ See Miglio, A, ‘Differentiated Integration and the Principle of Loyalty’ (2018) 14 European Constitutional Law Review 475CrossRefGoogle Scholar; Wouters, J, ‘Constitutional Limits to Differentiation: The Principle of Equality’ in de Witte, B et al. (eds), The Many Faces of Differentiation in EU Law (Intersentia, 2001), p 301Google Scholar; Thym, D, Ungleichzeitigkeit und europäisches Verfassungsrecht (Nomos, 2004)Google Scholar.

⁴⁸ For the legal value of these instruments, see the discussion in Section II.A above.

⁴⁹ Rec 13 of the Commission Recommendation and the Inter-Institutional Proclamation.

⁵⁰ COM [2008] 426.

⁵¹ For discussion, see Waddington, L, ‘Future Prospects for EU Equality Law. Lessons to Be Learnt from the Proposed Equal Treatment Directive’ (2011) 36 European Law Review 177Google Scholar.

⁵² Within the labour market, this is covered by the Employment Equality Directive 2000/78/EC.

⁵³ Directive 2006/54/EC on gender equality directives in the areas of employment and occupation; Directive 2004/113/EC on gender equality in access to and supply of goods and services.

⁵⁴ Racial Equality Directive 2000/43/EC.

⁵⁵ See Bell, M, ‘The Principle of Equal Treatment: Widening and Deepening’, in Craig, P and de Búrca, G (eds), The Evolution of EU Law (Oxford University Press, 2011)Google Scholar.

⁵⁶ It would, then, leave gender as the least protected ground. See Lombardo, E and Verloo, M, ‘Institutionalizing Intersectionality in the European Union?’ (2009) 11(4) International Feminist Journal of Politics 478CrossRefGoogle Scholar.

⁵⁷ See note 51 above.

⁵⁸ Council of the European Union, Proposal for a Council Directive on Implementing the Principle of Equal Treatment between Persons Irrespective of Religion or Belief, Disability, Age of Sexual Orientation – Progress Report, 2008/0140 (24 November 2017) http://data.consilium.europa.eu/doc/document/ST-14867-2017-INIT/en/pdf.

⁵⁹ COM [2012] 614.

⁶⁰ See respectively European Parliament, ‘Gender Balance on Boards’, http://www.europarl.europa.eu/legislative-train/theme-area-of-justice-and-fundamental-rights/file-gender-balance-on-boards, and European Commission, ‘2018 Report on Equality between Men and Women in the EU’ (Publications Office of the European Union, 2018).

⁶¹ Including the national parliaments of Denmark, the Netherlands, Poland, Sweden, the UK, and the Czech Chamber of Deputies.

⁶² Szydlo, M, ‘Gender Equality on the Boards of EU Companies: Between Economic Efficiency, Fundamental Rights and Democratic Legitimisation of Economic Governance’ (2015) 21(1) European Law Journal 97CrossRefGoogle Scholar.

⁶³ Senden, L and Visser, M, ‘Balancing a Tightrope: The EU Directive on Improving the Gender Balance among Non-Executive Directors of Boards of Listed Companies’ (2013) 1 European Gender Equality Law Review 17Google Scholar.

⁶⁴ COM [2015] 615 final.

⁶⁵ See note 51 above, p 178.

⁶⁶ SWD [2017] 201 final, p 77.

⁶⁷ Ibid, p 77.

⁶⁸ Council of the European Union, ‘General Approach on the Proposal for a Directive of the European Parliament and of the Council on the Approximation of the Laws, Regulations and Administrative Provisions of the Member States as Regards the Accessibility Requirements for Products and Services (7 December 2017) http://data.consilium.europa.eu/doc/document/ST-15586-2017-INIT/en/pdf.

⁶⁹ N Milotay, ‘A New Directive on Work-Life Balance’ (European Parliamentary Research Service, 2018) http://www.europarl.europa.eu/RegData/etudes/BRIE/2018/614708/EPRS_BRI(2018)614708_EN.pdf.

⁷⁰ COM [2017] 797 final.

⁷¹ While it is unlikely that any sanctions would be issued for non-compliance with social standards, the fact remains that the European Semester and its CSRs are a particularly coercive form of soft law. For discussion, see S Garben, ‘The Constitutional (Im)balance between ‘the Market’ and ‘the Social’ in the European Union’, note 5 above.

⁷² SWD [2017] 200 final, accompanying the Communication COM [2017] 250 final of 26 April 2017.

⁷³ Share of early leavers; Gender gap in employment; Income inequality; At-risk-of-poverty or social exclusion; Young people neither in employment nor in education/training.

⁷⁴ Employment rate age; Unemployment rate; Gross disposable income.

⁷⁵ Impact of social transfers, other than pensions, on poverty reduction; Children under three in formal childcare; Unmet need for medical care; Share of population with basic overall digital skills.

⁷⁶ COM [2016] 710 final, pt 11, Commission Work Programme 2017.

⁷⁷ COM [2017] 2610 final.

⁷⁸ COM [2018] 132 final.

⁷⁹ Ibid, pp 7, 8 and 12 of the Explanatory Memorandum.

⁸⁰ Rec 2 of the proposed Recommendation. See ETUC, ‘Position: Proposal for a Council Recommendation on Access to Social Protection for Workers and the Self-Employed’, https://www.etuc.org/en/document/etuc-position-proposal-council-recommendation-access-social-protection-workers-and-self#_ftn2.

⁸¹ COM [2018] 131 final.

⁸² See COM [2015] 215 final, Better Regulation for Better Results: An EU Agenda; SWD (2015)111 final, Better Regulation Guidelines; COM [2012] 746 final, EU Regulatory Fitness.

⁸³ See earlier initiatives such as SEC [1998] 903/3, Making Single Market Rules More Effective, Quality in Implementation and Enforcement; COM [2002] 275 final, European Governance: Better Law-Making; and COM [2010] 543 final, Smart Regulation in the European Union.

⁸⁴ For a comprehensive discussion: S Garben and I Govaere (eds), The EU Better Regulation Agenda: A Critical Assessment (Hart Publishing, 2018). One high-profile example is the Commission's refusal, on the basis of the Better Regulation Agenda, to submit the successfully concluded Collective Agreement in the Hairdressing Sector for implementation in the form of an EU Directive to the Council. The Agreement, aimed at improving the health and safety of workers in the hairdressing sector concluded by workers and employers, was publicly denounced by the European Commission as an example of bad regulation. See European Commission, ‘REFIT - Fit for Growth: Examples How EU Law Is Becoming Lighter, Simpler and Cheaper (2 October 2013) http://europa.eu/rapid/press-release_MEMO-13-833_en.htm..

⁸⁵ See S Garben, ‘An “Impact Assessment” of EU Better Regulation’, in Garben and Govaere, note 84 above.

⁸⁶ B Smulders and J Paquet, ‘The European Commission and its Better Regulation Agenda’, in Garben and Govaere, note 84 above.

⁸⁷ For a thorough discussion, see Dawson, M, ‘Better Regulation and the Future of EU Regulatory Law and Politics’ (2016) 53 Common Market Law Review 1209Google Scholar.

⁸⁸ A Renda, ‘Cost-Benefit Analysis and EU Policy: Limits and Opportunities’, in Garben and Govaere, note 84 above.

⁸⁹ See https://www.betterregwatch.eu.

⁹⁰ R Zbíral, ‘The Better Regulation Agenda and the Deactivation of EU Competences’ in Garben and Govaere, note 84 above.

⁹¹ Barnard, C, ‘EU Employment Law and the European Social Model: The Past, the Present and the Future’ (2014) 67 Current Legal Problems 199Google Scholar.

⁹² See SWD [2017] 205 final, REFIT Evaluation of the ‘Written Statement Directive’.

⁹³ European Commission, ‘Commission Takes Further Action to Better Protect Workers Against Cancer-Causing Chemicals’ (5 April 2018) http://europa.eu/rapid/press-release_IP-18-2662_en.htm.

⁹⁴ SWD [2018] 67 final, p 30.

⁹⁵ See note 85 above.

⁹⁶ The discussion in this section draws on Garben, S, ‘The Problematic Interaction between EU and International Law in the Area of Social Rights’ (2018) 7(1) Cambridge International Law Journal 77CrossRefGoogle Scholar.

⁹⁷ Rocca, M, ‘Enemy at the (Flood) Gates: EU “Exceptionalism” in Recent Tensions with the International Protection of Social Rights’ (2017) 7 European Labour Law Journal 55Google Scholar.

⁹⁸ ILO, ‘Social Aspects of European Economic Co-operation: Report by a Group of Experts’ (1956) 74 International Labour Review 99Google Scholar.

⁹⁹ SWD [2016] 50 final.

¹⁰⁰ See note 13 above.

¹⁰¹ SWD [2018] 67 final, p 32.

¹⁰² Ibid, p 35.

¹⁰³ Ibid, p 50.

¹⁰⁴ The Member States confirm ‘their attachment to fundamental social rights as defined in the European Social Charter signed at Turin on 18 October 1961’.

¹⁰⁵ For the ESC see Istituto nazionale della previdenza sociale (INPS) v Tiziana Bruno and Massimo Pettini and Daniela Lotti and Clara Matteucci, C-395/08 and C-396/08, EU:C:2008:677, para 31; RX-II Réexamen European Commission v. Guido Strack, C-579/12, EU:C:2013:570. See also Opinion of Advocate General Wahl in Anonymi Geniki Etairia Tsimenton Iraklis (AGET Iraklis) v Ypourgos Ergasias, Koinonikis Asfalisis kai Koinonikis Allilengyis, C-201/15, EU:C:2016:429, para 60. For the Committee see recently Opinion of Advocate General Bobek in Werner Fries v Lufthansa CityLine GmbH, C-190/16, EU:C:2017:225.

¹⁰⁶ Eg Council Directive 2011/36/EU of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims and replacing Council Framework Decision 2002/629/JHA, [2011] OJ L101/1; Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, [2004] OJ L16/44; Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, [2003] OJ L251/12.

¹⁰⁷ See Council of Europe, The Relationship between European Union Law and the European Social Charter (European Committee of Social Rights Working Paper, 2014), p 22, https://rm.coe.int/16806544ec.

¹⁰⁸ Ibid. See also note 97 above, p 52.

¹⁰⁹ Kilpatrick, C, ‘Are the Bailouts Immune to EU Social Challenge Because They Are Not EU Law?’ (2014) 10 European Constitutional Law Review 393, p 406CrossRefGoogle Scholar.

¹¹⁰ General Federation of Employees of the National Electric Power Corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v. Greece, (Complaint) European Committee of Social Rights No 66/2011.

¹¹¹ General Federation of Employees of the National Electric Power Corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v. Greece, (Complaint) European Committee of Social Rights No 65/2011.

¹¹² Federation of Employed Pensioners of Greece (IKA-ETAM) v. Greece, (Complaint) European Committee of Social Rights No 76/2012.

¹¹³ Pensioners’ Union of the Athens-Piraeus Electric Railways (I.S.A.P.) v. Greece, (Complaint) European Committee of Social Rights No 78/2012, p 10.

¹¹⁴ International Labour Organization, ‘ILO Calls on Greece to Bring its Labour Relations System Back to Fundamental Rights’ (15 November 2012) http://www.ilo.org/brussels/press/press-releases/WCMS_193308/lang--en/index.htm.

¹¹⁵ Governing Body of the International Labour Office (316th Session) Reports of the Committee on Freedom of Association: 365th Report of the Committee on Freedom of Association (Geneva 1–6 November 2012), para 997.

¹¹⁶ International Transport Workers’ Federation and Finnish Seamen's Union v Viking Line ABP and OÜ Viking Line Eesti, C-438/05, EU:C:2007:772; Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avdelning 1, Byggettan and Svenska Elektrikerförbundet, C-341/05, EU:C:2007:809.

¹¹⁷ See note 97 above, p 64.

¹¹⁸ Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v Sweden, (Complaint) European Committee of Social Rights No 85/2012 (3 July 2013), para 122.

¹¹⁹ International Labour Office, ‘Report of the Committee of Experts on the Application of Conventions and Recommendations: Report III (Part 1A), General Report and Observations Concerning Particular Countries’ (2010), p 209.

¹²⁰ Opinion of the Secretary General of the council of Europe on the European Union Initiative to Establish a European Pillar of Human Rights (2 December 2016) https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016806dd0bc.

¹²¹ Para 42.

¹²² Para 21.

¹²³ Para 46.

¹²⁴ International Labour Organization, European Pillar of Social Rights Central to an Equitable Future of Work (17 November 2017) https://www.ilo.org/global/about-the-ilo/how-the-ilo-works/ilo-director-general/statements-and-speeches/WCMS_598680/lang--en/index.htm.

¹²⁵ Kilpatrick, C, ‘The Displacement of Social Europe: A Productive Lens of Inquiry’ (2018) 14(1) European Constitutional Law Review 62CrossRefGoogle Scholar.

¹²⁶ See Barnard, C, ‘EU Employment Law and the European Social Model: The Past, the Present and the Future’ (2014) 67 Current Legal Problems 199CrossRefGoogle Scholar; C Kilpatrick and B de Witte, Social Rights in Times of Crisis in the Eurozone: The Role of Fundamental Rights’ Challenges (EUI Working Paper LAW, 2014); Witte, F de, ‘EU Law, Politics and the Social Question’ (2013) 14 European Law Journal 581Google Scholar.

¹²⁷ European Parliament, ‘Report on a European Pillar of Social Rights’, 2016/2095(INI), p 25.

¹²⁸ Ibid, p 26.

¹²⁹ COM [2017] 251 final, Proposal for an Interinstitutional Proclamation on the European Pillar of Social Rights, p 3.

¹³⁰ Ibid, p 4.

¹³¹ Ibid.

¹³² Garben, ‘The European Pillar of Social Rights: Effectively Addressing Displacement?’, note 5 above.

¹³³ Sähköalojen ammattiliitto ry v Elektrobudowa Spółka Akcyjna, C-115/14, ECLI:EU:C:2015:86; RegioPost GmbH & Co KG v Stadt Landau, C-396/13, EU:C:2015:760.

¹³⁴ Commission v Spain, C-576/13, EU:C:2014:2430, AGET Iraklis, C-201/15, EU:C:2016:972.

¹³⁵ Such as the proposal for a European services e-card, COM/2016/0824 final, rejected by the Parliament. See European Parliament News, ‘Internal Market MEPs Reject Commissions “Services E-Card” Proposals’ (21 March 2018) http://www.europarl.europa.eu/news/en/press-room/20180319IPR00020/internal-market-meps-reject-commission-s-services-e-card-proposals.

¹³⁶ European Anti-Poverty Network, ‘Making Progress on Social Europe? Poverty Reduction, Social Rights and Standards’ (2017) https://www.eapn.eu/wp-content/uploads/2017/05/EAPN-2017-EAPN-CountryReports-Assessment-1133.pdf.

¹³⁷ J Zeitlin and B Vanhercke, ‘Socializing the European Semester? Economic Governance and Social Policy Coordination in Europe 2020’ (2014) SIEPS Report.

¹³⁸ Plomien, note 2 above.

¹³⁹ See for wide-ranging discussions on Social Europe and the crisis: Barnard, C and De Baere, G (eds), A European Social Union after the Crisis (Cambridge University Press 2017)Google Scholar.