Social law in the wake of the crisis. WP CSDLE “Massimo D’Antona”.INT – 108/2014

Sciarra, Silvana (2014) Social law in the wake of the crisis. WP CSDLE “Massimo D’Antona”.INT – 108/2014. [Working Paper]

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Abstract

Current discussions originated by the crisis place social law at the crossroad of other critical evaluations and proposals. This paper looks at how in the wake of the crisis EU legal methods related to employment and social policies are undergoing changes. Following a well-established tradition at the University of Copenhagen, EU legal methods are enriched in interdisciplinary approaches. For this reason, actions and policies in areas wrongly perceived as ancillary to the integration of the market, should not be marginalised in a coherent theoretical framework. In this paper I select two main areas of reflection, starting from the observation that the economic and financial crisis has shaken the order of legal sources, raising issues of democratic legitimacy and accountability for all institutional actors. In a first step I look at the current state of EU social dialogue, one of the most original features in the evolution of market integration, according to Jacques Delors’ early intuitions, and not extraneous to the construction of a monetary union, as indicated in the Werner Plan.2 I follow this route in order to show that the lack of political consensus, accentuated by the crisis, caused a decline in the law-making process (articles 154-155 TFEU) and limited the quasi-institutional role of the social partners. Other processes were expanded, among all the European Semester, in which the social partners were not involved, as they should have been. I then observe some changes taking place in employment policies, which confirm the decline of the Open Method of Coordination (OMC). In a second step I look at the impact of austerity measures on fundamental social rights. The European Semester deals with an ex ante examination of Member States performances and attempts to rationalise ex post consequences. Recommendations sent to national governments follow a path not comparable to the regulatory technique enshrined in Title IX TFEU, despite the fact that they often interact with employment policies. Furthermore, the European Stability Mechanism (ESM), agreed by Euro area Member States, gave rise to a complex procedure, to be initiated by the country experiencing serious economic instability. Memoranda of Understanding (MoUs), signed by the Troika and the Member States concerned to grant financial support (art. 13.3 ESM), reiterated controversial emergency measures. The effects caused by all these manoeuvres are now under the scrutiny of courts and international organizations and reveal a fragmented picture, both in the choice of litigation and in the results to be achieved. Decoupling economic governance from respect of individual and collective social rights can give rise to infringements of art. 2 TEU, art. 9 TFEU, and of relevant articles in the Charter of Fundamental Rights (CFR). New experiments in social law are in need of careful evaluation. The state of emergency cannot justify renouncing the rule of law.

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