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.

The Charter lists 19 economic and social rights and employs a formula of obligations on State Parties to move towards their progressive realization. It is divided into 5 parts and also consists of a preamble and an appendix. The preamble of the Charter, as that of the ECHR, declares the objective of the Council of Europe of achieving greater unity between the member states through “the maintenance and further realization of human rights and fundamental freedoms.” It further states the State Parties “are resolved to make every effort to improve the standard of living and to promote the social well-being of their populations by means of appropriate institutions and actions.”

In Part I of the Charter is to be found the list of 19 principles accepted as policy goals by the State Parties. Part II elaborates provisions, in the following order, on the right to work; the right to just conditions of work; the right to safe and healthy working conditions; the right to fair remuneration; the right to organize; the right to bargain collectively; the right of children and young persons to protection; the right of employed women to protection; the right to vocational guidance and training; the right to protection of health; the right to social security; the right to social and medical assistance; the right to benefit from social welfare services; the right of physically or mentally disabled persons to vocational training, rehabilitation and social resettlement; the right of the family to social, legal and economic protection; the right to engage in a gainful occupation in the territory of other Parties; and the right of migrant workers and their families to protection and assistance.[2]

The undertakings of State Parties are elaborated in Part III of the Charter. The State Parties do not have to accept Part II of the Charter in its entirety upon ratification. However, they must accept ten or more articles, which must include the acceptance of five of the seven key articles, or 45 paragraphs of the Charter.

The supervision procedure of the implementation of the undertakings listed in the Charter is explained in Part IV. The Protocol of 1991 has modified some of the provisions of the Charter and has contributed to a notable improvement in the supervisory mechanism. The monitoring system consists of a reporting procedure, whereby the State Parties are under obligation to submit reports on a yearly basis on how they have implemented the provisions of the Charter both legally and in practice. The reports are examined by the European Committee of Social Rights (ECSR) which consists of thirteen independent and impartial members elected for a period of six years by the Committee of Ministers. The ECSR decides whether a State Party has implemented the provisions in law and practice and publishes its conclusions every year.

In case a State Party does not act upon the decision of the ECSR and amend the situation in order to comply with the Charter, a recommendation is given to the State by the Committee of Ministers. The work of the Committee of Ministers is prepared by governmental representatives of the State Parties, or Governmental Committee. It in turn receives assistance from observers from the European Trade Union Confederation (ETUC), the Union of Industrial and Employers’ Confederations of Europe (UNICE) and the International Organization of Employers (IOE).

Part V of the Charter is dedicated to the final provisions on derogations, territorial application and restrictions. In the Appendix are included clarifications of some provisions of the Charter which were requested by governments in order to clearly define what their obligations entail. Some provisions in the Appendix clearly show the difference between the ECHR and the Charter. “Unlike the European Convention, the rights of the Charter do not apply to every person within the territory of the Contracting Parties.”[3] The scope of the Charter applies only to foreigners who are nationals of other State Parties.