The ECJ has ruled on a number of cases concerning the social policy arrangements of the Member States of the EU in relation to free movement. All EU Member States reimburse medical expenses that occur in another Member State as long as prior authorisation is given for foreign medical treatment or if the medical treatment is urgent. However, two cases, Decker[3] and Kohll[4], were considered exceptions to the rule by the Court. In the former, a Luxembourg national who purchased a pair of spectacles in Belgium was denied reimbursement for them on the grounds that he purchased them without prior authorisation from his sickness fund. The latter concerned another Luxembourg national whose daughter was refused treatment by a German orthodontist since the same could be provided in Luxembourg and the treatment was not considered to be urgent. Keeping in mind that barriers of this kind may be imposed in order not to harm the financial balance of the social security systems, the Court ruled that these two particular cases did not pose such a threat to national social security systems. Thus the principle of free movement prevailed.

The ECJ has also played a key role in defining the notion of EU citizenship before it was mentioned in the EC Treaty.[5] It has done this through extending the principle of non-discrimination based on nationality, which was originally intended for the protection of workers and freedom to provide services. The Court has extended this principle to include the benefits of social security in relation to free movement and also to include those who are not the providers of services, but recipients of services. This was done for the first time in the case of Ian William Cowan v. Tresor Public[6]. This case concerned a British citizen, Mr. Cowan, who had been attacked at the exit of a metro station in Paris. Mr. Cowan had not gone to France as a worker or as a provider of services and since his attackers were not identified he was not eligible to receive compensation for his physical injury. Nevertheless, the Court decided that even foreign recipients of services are entitled to the same treatment as the Member State’s nationals.

However, the ECJ has not only extended “circle of beneficiaries as to include other EC nationals but has also broadened the ambit of national social rights to non-EC nationals and thereby moved beyond European citizenship.”[7] This refers to migrant workers whose native countries have association agreements with the Community, but even here the ECJ has extended the scope of the agreements. In Henia Babahenini v. Belgium[8], the wife of a retired Algerian worker was denied a disability allowance in Belgium, as she was not a migrant worker herself. The Court rules that the agreement between the Community and Algeria did also include the members of the family of the migrant worker.

The above examples of the ECJ’s case law serve to depict its socially activist role. Moreover, it is clear that many of the socio-economic rights included in the Charter of Fundamental Rights of the EU have already been established in the case law of the ECJ. It is stipulated in Article 52 (2) of the Charter that rights based on EC Treaties or the TEU are subject to the conditions and limits outlined in those Treaties. Thus, the Charter cannot either widen or reduce the scope of those rights. Nevertheless, in fulfilling its primary duty of making rights more visible to EU citizens, the Charter undoubtedly signals an advance in the public awareness of those rights that have already been established in the case law of the ECJ.

Allan Rosas distinguishes between three elements in the external human rights policies of the EU: the normative, political and assistance and support elements.[1] The normative element refers to the inclusion of human rights clauses in agreements with third countries relating to assistance and trade. The political element surfaces when the EU takes measures to stop human rights violations, such as sanctions against third countries. The third elements of assistance and support consists of the EU’s efforts to directly promote human rights in third countries and provide assistance, including financial, to civil society, nongovernmental organizations, and public institutions.

In the Regulation adopted by the Council of the European Union in April 1999, it is stipulated in Article 3 (b) that one of the aims of the EU’s foreign policy is the promotion and protection of economic, social and cultural rights in third countries. The Human Rights Regulations adopted in April 1999 are meant to provide the legal basis for the technical and financial assistance activities of the EU and the appropriate procedures of this assistance. The document also stresses the indivisibility and interdependence of human rights and acknowledges that economic and social development is conducive for the protection of civil and political rights.[2] However, although the EU’s commitment to the universality, interdependence and indivisibility of human rights has been established, the practical side of this commitment shows much less attention directed to economic, social and cultural rights than civil and political rights in the Union’s external relations.

Economic, social and cultural rights are progressively being accorded more attention, but the fact remains that this attention is still very low. This is evident in a number of the EU’s policies. Very little attention is paid to the implementation of the specific economic, social and cultural rights by acceding countries, although the Commission has referred to the applicant countries’ implementation of the ESC and ICESCR in Agenda 2000.[3] The funding for projects relating to economic, social and cultural rights constitutes a small part of the overall budget for human rights in third countries. Moreover, “investment in social development has been accorded a low priority in most EU aid, even though increased is now being given to health and education.”[4]

There is a need to balance the funding allocated to civil and political rights and that allocated to economic social and cultural rights. This is evident in the fact that these rights are crucial for the priority target groups identified by the EU, namely women, children and minorities. Also, the Commission’s own emphasis on the necessity for the respect of these rights in order to ensure democracy and the implementation of civil and political rights is thus not practically supported. In many Eastern European, Asian and South American countries, the economic crises which they continue to endure present a major obstacle to the enforcement of civil and political rights, the rule of law and a stable democracy.[5]

In its Annual Report on Human Rights of 2002, the EU clearly states its commitment to the equal implementation of all human rights and acknowledges the impact of their unequal realization, especially in terms of its effect on the vulnerable sectors of society. Moreover, in the report, the EU expresses support for the idea of an Optional Protocol enabling individual complaints to the ICSECR.

One of the most important aspects of the EU’s external human rights policy is the human rights clause inserted into bilateral trade agreements with third countries. This clause makes reference to the UDHR and stipulates that respect for human rights is an integral part of the agreement. The clause acknowledges both parties’ dedication to the respect for human rights and provides for the possibility of suspension of the agreement in case one of the parties violates it. Although the human rights clause appeared in agreements in the early 1990s, it has been systematically inserted in all trade and cooperation agreements since 1995.[6] More than 20 agreements of this kind have been signed and there are more than 30 agreements signed before 1995 which contain a human rights clause usually different from the model adopted in 1995. Since the human rights clause specifically refers to the UDHR, it therefore also expresses the indivisibility and interdependence of human rights. This is a very important aspect of the EU’s external human rights policy. Simple financial and technical aid would not ensure adequately that human rights are protected in the recipient country. With the possibility of suspension of trade agreements the EU adds the ‘stick’ component to the ‘carrot’ approach.

Besides the human rights clause in trade agreements, the EU has also made the respect for democracy, human rights and the rule of law a condition for receiving financial assistance. Thus the development policy of the EU has been closely linked to human rights and democracy. It was only recently that that a general development policy connected to human rights was developed, as before human rights considerations were placed ad hoc in the development policies.[7] The development policy and its relation to economic, social and cultural rights is slightly ambiguous due to the fact that it is unclear whether the development policy of the EU utilizes the entitlements approach or the basic needs approach.[8] It seems that most development projects which aim at reducing poverty and famine adopt a basic needs approach. However, especially in relation to the candidate countries, the EU is slowly adopting an entitlements approach to these rights by examining whether there are violations of specific economic, social and cultural rights. The EU has also moved closer to a rights based approach in its focus on health and education. Yet it is the case that “these projects still receive only a small portion of the overall budget, and they neglect the ‘rights’ component which entails an entitlement to demand the satisfaction of these rights.”[9]

On the European continent itself, the EU has made the respect for human rights, democracy and rule of law a condition for membership. The introduction of the Copenhagen criteria for membership, which are political, is proof of the transformation of the EU from an economic organization to a more integrated European polity. Moreover, what is significant for our present purposes is that in examining the extent to which the candidate countries comply with these criteria, the European Commission has also focused on economic, social and cultural rights. Yet, the reports of the Commission still retain a clear overemphasis on civil and political rights, judging by the amount of space dedicated to economic, social and cultural rights.[10]

In my opinion, the external human rights policy of the EU clearly reflects its internal policy. Although there has been significant progress in the rising level of awareness of economic, social and cultural rights, these rights are still clearly subordinated to civil and political rights. The EU’s external social policy will depend first and foremost on how much Europe develops its own social self. The EU Charter of Fundamental Rights might also serve the function of sending a clearer message to candidate countries of exactly what rights the European family upholds. The importance of the novelties in the Charter rises with consideration of the European Union’s eastward expansion. The Charter, besides bringing forth to the citizens of the EU the importance of fundamental rights, also extends this visibility to applicant countries. This can be seen as a noteworthy step forward in the spreading of awareness of the various rights by listing them in one concise Charter, which may be used as a guiding text by potential members.

As we have already mentioned before, the development of the EC had as its main goal the market integration of Europe. Yet, over the years it became evident that the EU is not a purely market oriented organization, but one concerned with the protection of human rights, democracy and the rule of law. In its case law, concerning the rules of market integration, the ECJ has usually resorted to a neo-liberal approach, which often had undesirable implications for national social policy. However, the ECJ has also ruled on a number of cases in favour of a certain social policy and thus justified some forms of restriction on trade. This has occurred when the regulation, which imposes certain restrictions on trade, is to be found in the majority of Member States. In this light, the rulings of the ECJ can be said to have focused more on the harmonization of national laws than on deregulation.[3] Although the ECJ has stressed that Community law does not strip the Member States of power to maintain their own social security systems, those Member States who had more protective social policies, which the majority of Member States did not subscribe to, were found to have regulations which do not conform to Community law and rules of market integration. Yet, even if the aim is identified in the judicial harmonization of national legislation, there have often been negative implications for national social rights. While the protective national social regulations have been tackled in order to eliminate restrictions on trade, there has not been an equally effective promotion of common social rights.[4] A set of common regulations on the EU level, it is believed, would also imply the primacy of social rights over the market.[5]

Therefore, whether social rights or market integration seem to be of primary importance depends on whether the integration of the market is positive or negative. Judicial review of national regulation constitutes negative integration in so far as that regulation is found to be inconsistent with Community law. Positive integration would constitute the creation of a common European social model. The creation of such a model in the EU context seems difficult keeping in mind differing national interests and ideologies.[6] It is the method of negative integration that is conducive to negative implications for national social rights, even though both methods ultimately result in the harmonization of national regulations.

Miguel Poiares Maduro rightly argues that the model of European citizenship is incomplete without the inclusion of fundamental social rights. By identifying the free movement provisions as fundamental freedoms the ECJ has affirmed the evident fact that the EU is primarily an economic organization where the citizenship model corresponds to that of a “market citizen”. What is lacking in the notion of European citizenship, “the idea of European social rights as European social entitlements arising from a criterion of distributive justice agreed among all citizens of the EU is rarely, if ever, discussed.”[7] However, the inclusion of social rights is a necessary step that must be made if European integration is to be complete. As Maduro claims, European citizenship cannot only be available to wealthy, elitist citizens who have the privilege to enjoy the free movement provisions. The creation of a European social model is perhaps also necessary as a legitimizing factor for European market integration and the EU itself.

When speaking of a lack of a common European social model, we should acknowledge that many EU “policies already have broad redistributive effects and what appears to be lacking is an overall criterion of distributive justice to assess and coordinate those redistributive effects.”[8] That absence of that overall criterion constitutes the lack of the legitimizing factor in EU policies which have unpredictable redistributive effects. It also constitutes the lack of the European social self, a prerequisite for a complete European citizenship. The EU’s majoritarian character and its policies can only be legitimized in the existence of a social contract on which they are based.

One of the defenders of European integration, Jürgen Habermas, holds that European integration offers a better chance of achieving social justice than can ever be possible within the confines of the nation-state. Habermas argues that the justifications which once pushed the process of European integration, namely the preventing of another war and controlling German power, are no longer satisfactory. What is needed is a new set of justifications if the project is to continue successfully. During the process of integration it is necessary to preserve the achievements of the European nation-state, of which the most positive Habermas considers to be the welfare state. The welfare state provides the individual citizen “with a set of social rights and also ensures that the capitalist economy operates in accordance with the public interest.”[9] He believes that this positive achievement of the nation-state, which is today threatened by effects of globalization, can be preserved in a Federal Europe while simultaneously rejecting the nation-state’s negative aspect of nationalism.

The social-democratic rights once protected within the confines of the nation-state are today threatened by the negative effects of globalization. In this scenario, the nation-state is no longer an adequate protector of these rights, the result of which is the impotence of ordinary citizens to be the creators of their own laws. Citizens must be able to control economic forces and this can, according to Habermas, be done only on the European level. Europe has already an established commitment to social, political and cultural inclusion and therefore the basis for a common set of values is not hard to find; it rests in social justice. In this commitment Europe is unique and quite different from the United States.[10] A Federal Europe can retain the idea of solidarity as opposed to purely neo-liberal values.

The view of Habermas depicts a positive version of European integration. Nevertheless, it too stresses the need for social justice on the EU level as a legitimizing factor for the project. Whether in the process of European integration economic freedom will be supplemented by adequate social rights will depend on the model adhered to and whether to the ideal of efficiency will be attached the ideal of distributive justice.[11] It also depends on how far the economic integration of Europe moves in the direction of political integration. The fact remains that a common social rights model for the EU seems difficult to agree on due to the fact that Member States have different views on whether such rights constitute fundamental rights all. The EU Charter of Fundamental Rights, through its inclusion of socio-economic rights acknowledges that the respect for these rights constitutes part of the European identity. However, the difficulty on agreement is evident in the subjecting of some of those rights to national laws and policies. Therefore, the debate on the future of a social Europe still largely rests in the ideological notions of European integration.

The Charter had not been adopted unanimously, as opposition came from Great Britain and its then Prime Minister, Margaret Thatcher. Great Britain did, however, eventually sign the Charter in 1998 after the election of Tony Blair as Prime Minister. The nature of the Community Charter is non-binding and it is a political declaration. As such it has no legal effect and cannot be enforced legally. Although it still remains a political document with a programmatic nature, “it has given flesh and bones to Community social policies.”[2] It establishes the principles on which the European labour law model is based. The Charter specifically deals with freedom of movement; employment and remuneration; improvement of living and working conditions; social protection; freedom of association and collective bargaining; vocational training; equal treatment for men and women; information, consultation and participation of workers; health protection and safety at the workplace; protection of children and adolescents; elderly persons; and disabled persons. The supervision of the Charter consists of a reporting procedure in which an annual report on the implementation of the Charter is published by the Commission.

As has already been pointed out, the Community Charter is a non-binding declaration of intent by the Heads of State or Government of the Member States. Yet, its adoption marks a significant moment in the development of the social dimension in the EU. The former President of the Commission, Jacques Delors, who had made a commitment to addressing the social aspects of the single market, described the importance of the Community Charter in that it is a means of discovering the extent of agreement on common values by the Member States and how those commonly recognised values can be incorporated into the language of rights.[3] Moreover, its importance “is that it clearly spells out the whole range of the Community’s social policy objectives for the 1990s, and enunciates these in terms of a series of fundamental principles in a single EC-level text.”[4] All consequent instruments regarding social policy, such as the Maastricht Agreement on Social Policy, make reference to the Community Charter. The Treaty of Amsterdam explicitly bears reference to the Community Charter and “it is no longer unthinkable that the Court of Justice might have the power to interpret and enforce the Charter.”[5]

Apart from the innovations contained in the Charter which answer the needs arising from social development, certain other elements of originality can be highlighted. It is the aim of this essay to bring forth and examine those elements. The innovative aspects of the Charter can be divided into three categories, namely those pertaining to the drafting process itself, the form of the Charter and finally its substance.

The Convention, or the ‘body’ which drafted the Charter, has been praised for the way in which it operated. It “worked in an unusually open and transparent way, posting all of its documents and all of the materials submitted to it and the drafts discussed by it on a specially dedicated website, and holding its meetings openly.”[2] Furthermore, access to the debates in the Convention’s meeting rooms was given to all persons. “The process provides a striking contrast with the customary process of inter-governmental negotiations, which are characteristically conducted in secret….”[3] This method adopted in the drafting process of the Charter has already been pointed to as a model that will be applied at the next IGC. This signals an improvement in the process of constitution making in the EU, something to be view as a direct consequence of the drafting process of the Charter.[4]

In taking into consideration the criticism of various NGOs, the Convention allowed civil society to influence the drafting process directly. It should be noted that “more than 70 associations involved in the protection of all manner of interests were consulted at hearings or produced written contributions.”[5] Also consulted were the public institutions which were to be directly influenced by the Charter. Thus observers from the Council of Europe, the Economic and Social Committee, the Committee of the Regions and the Ombudsman participated in the drafting process and notably influenced the final outcome.

When examining the way in which the Charter is formulated one can discern a number of innovations. In answering to its primary objective of making more visible the importance of fundamental rights to the citizens of the European Union, the Charter was written in a clear and unambiguous manner. The members of the Convention “used short sentences and a style as simple as possible in order to promote the acceptance of such values by EU’s populations and the latter’s identification with those values.”[6] Furthermore, the Charter is divided in such a way, with titles that are at the same time easy to remember and that demonstrate a clear intention to stress the indivisibility of human rights. Namely, this is accomplished by avoiding a separation between the first, second and third generation rights and instead producing chapters entitled Dignity, Freedoms, Equality, Solidarity, Citizens’ Rights and Justice. Moreover, the Charter goes beyond the male oriented formulation of documents and acquires a gender-neutral character. In this way, like the indivisibility of human rights, the principles of non-discrimination and equality become evident in the very form and aesthetic aspect of the Charter.

After having outlined the innovative nature of the drafting process of the Charter and its form, I shall turn to the analysis of the elements of originality of its content. As we have already mentioned, the objective of the Charter was not one of creating new rights.[7] In fact, the European Convention on Human Rights (ECHR) is “the standard for interpretation of the Charter, [and] the interpreter will have to keep the Convention – and the case-law of the European Court – in mind when he or she is trying to find the meaning of a provision of the Charter.”[8] However, a key point to be noted here is that the various human rights instruments are combined in the Charter. Thus, the Council of Europe observers to the drafting of the Charter highlight the importance of the fact that certain provisions in the Charter are not to be found in the ECHR, but are to be found in the case law of the European Court of Human Rights.[9]

There are a number of provisions contained in the Charter which can be seen as an update to the ECHR. Article 5 of the Charter adds the prohibition of trafficking of human beings to the prohibition of slavery and forced labour. Article 10 adds to freedom of thought, conscience and religion the right to conscientious objection. Furthermore, there are two articles which are direct results of the need to make new provisions in light of technological and scientific advances and their potential threat to individuals. Namely, Article 3 proclaims the prohibition of the reproductive cloning of human beings and Article 8 deals with the protection of personal data. The last two articles may be said to be the most innovative features of the Charter and the need for their proclamation is, I believe, self-evident.[10]

The emphasis on the indivisibility of rights has already been mentioned in connection to the formulation of the Charter, but now we will proceed to examine the implications of this emphasis. In Annex IV of the Presidency Conclusions of the Cologne European Council, June 3 and 4, 1999, it is stated that in the drafting of the Charter “account should therefore be taken of economic and social rights as contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers (Article 136 TEC), insofar as they do not merely establish objectives for action by the Union.”[11]

Perhaps one may be tempted to discard this move of placing civil and political rights together with social and economic rights as insignificant given the fact that the Charter is not legally binding. However, one should take into account the fact that, when drafting the Charter, the members of the Convention “bound themselves in advance to formulating the Charter in such a way that it can at any time be incorporated into the treaties or can in some other way be made binding.”[12] Moreover, the Charter has already exerted its influence on European courts in the creation of new case law. Thus, it has already acquired the status of a text of reference. When viewed from this perspective the potential of the Charter for the advancement of the monitoring system to protect social and economic rights is encouraging, especially when we take into consideration that the “Charter may contribute to the development of a more rights-oriented system, both legally and more generally.”[13] This possibility creates the opinion that the Charter  “offers important constitutional change within the EU in favour of greater social solidarity and equality.”[14]

The importance of the novelties in the Charter rises with consideration of the European Union’s eastward expansion. The Charter, besides bringing forth to the citizens of the EU the importance of fundamental rights, also extends this visibility to applicant countries. The addition of the prohibition of human trafficking in Article 5 is thus significant in this respect, given the record of organized crime in some states that wish to join the EU eventually. This can be seen as a noteworthy step forward in the spreading of awareness of the various rights by listing them in one concise Charter, which may be used as a guiding text by applicant countries. The incorporation of the prohibition of human trafficking makes more visible also the EU’s external relations policy. This does not only apply to the EU’s policy towards applicant countries but even towards highly developed states with reference to the inclusion of the provision on the protection of personal data in Article 8.

We have thus shown that the Charter is not in any way a mere repetition of the ECHR. On the contrary, it goes beyond it in many respects. The elements of originality in the three aspects of the Charter, namely, the drafting process, the formulation and the content, awaken positive feelings from an optimistic perspective on the nature of European integration. If viewed from the stance that the Charter is useless because it is not legally binding, one considers only its short-term effects. With a projection into the future and optimism about the advancement towards an EU Constitution, the importance of the Charter in its present form as an example of a good and innovative drafting process gains ground. The model adopted for the drafting process of the Charter certainly reduces the fear of an ever-more powerful Union which makes secretive decisions on the behalf of the citizens of member states. The Charter itself contains the right to good administration in Article 41 and right of access to documents in Article 42.

What remains to be seen is whether the Charter will be incorporated into the Treaty and which of the two possible attitudes towards the Charter at present will prevail. Nevertheless, it must be acknowledged that Charter will undoubtedly influence the spread or perhaps even fashion the human rights culture in Europe. We can imagine the list of rights “in the Charter developing into a real European political conscience.”[15]