Transformation or Dilution: Fundamental Rights in the EU Social Space

• Date: 01 January 2006
• DOI: http://doi.org/10.1111/j.1468-0386.2006.00306.x
• Published date: 01 January 2006
• Author: Sandra Fredman

Transformation or Dilution: Fundamental

Rights in the EU Social Space

Sandra Fredman*

Abstract: This article argues that in developing social rights to counterbalance economic

freedoms, the EU has begun to reformulate traditional notions of rights. Instead of cre-

ating rights in their traditional individualised, negative, judicially enforceable, and fault-

based form, a new proactive model is emerging, which aims at institutional change, based

on the notion of the active citizen and the centrality of participation in both rule forma-

tion and enforcement. It is argued that while this model has important advantages, its

weakness lies in its dependence on political will. The challenge is therefore to ensure that

proactive strategies are firmly centred on fundamental rights rather than political discre-

tion. Part I briefly sketches the development of social rights in the EU; Part II examines

the applicability of Third Way ideology; Part III considers European employment strat-

egy and gender mainstreaming, asking whether they represent a dynamic new manifesta-

tion of fundamental rights at work, or a betrayal. Part IV applies a similar evaluation to

the EU Charter.

The EU’s genesis as a free trade zone has always threatened to privilege economic free-

doms over social rights, endangering social law in Member States. It is thus of crucial

significance that the EU has come to recognise its own role in the protection and pro-

motion of social rights. Because of the unique powers of the EU to bind its members,

this recognition gives the EU the potential to operate as a powerful engine buttressing

social rights against the ‘race to the bottom’ created by competitive forces. However,

the language used to assess national or international human rights law does not trans-

late easily into the EU social space. Instead, the sui generis nature of the EU desta-

bilises some of the basic assumptions behind social rights, exposing fault-lines and

opening spaces for new conceptions. Social rights are reconceptualised, not as burdens

on business, but as essential contributors to efficiency. Traditional conceptions of rights

as individual, negative, judicially enforceable, and fault based are challenged by main-

streaming, positive duties, and other proactive initiatives. But does the reformulation

of rights constitute a genuine transformation or an extravagant dilution?

In this article, I argue that a new, proactive model of rights is emerging, aiming

at institutional change and moving away from an individualised, complaints-based

European Law Journal, Vol.12, No. 1, January 2006, pp. 41–60.

© 2006 The Author

Journal compilation © 2006 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Professor of Law, Oxford University, Leverhulme Research Fellow, Barrister,Old Square Chambers. I am

grateful to the organisers and participants of the Fundamental Rights at Work conference in London

Ontario in October 2004 for their insightful comments on an earlier version of this paper.

approach. However, while the proactive model has important advantages, its weakness

lies in its basis in policy, leaving it highly dependent on political commitment and vul-

nerable to the vagaries of political change. The key challenge is therefore to ensure that

proactive strategies are firmly centred on fundamental rights rather than political dis-

cretion, without losing the advantages over individualised complaints mechanisms with

all their inbuilt weaknesses.

This article assesses the ways in which the EU has addressed these basic questions.

Part I gives a brief sketch of the development of social rights in the EU, while Part II

examines the resulting configuration of rights in the light of Third Way ideology. In

Part III, I consider whether the European employment strategy and gender main-

streaming represent a dynamic new manifestation of fundamental rights at work, or a

betrayal. Part IV applies a similar evaluation to the EU Charter.

IThe EU and Social Rights: History and Context

From its inception as an economic union, the EU granted the status of fundamental

rights, not to civil and political rights or even socio-economic rights, but to basic market

freedoms: freedom of movement of goods, services, and labour. Any social rights have,

until recently,had to be justified in market-creating terms. However, the absence of fun-

damental rights at work at EU level did not mean that there were no such rights. The

EU system is superimposed upon well-developed social and industrial relations systems

of Member States, systems that the states had no desire to relinquish to the EU.1 This

led to a complex distribution of functions, with ‘efficiency’ concerns placed in the hands

of the EU, while redistribution remained the responsibility of Member States. On this

view, the ‘goal is to increase societal net gain through market integration without

concern as to how such wealth is distributed’.2

This division of labour between Member States and the community did not, however,

reckon with the inextricable enmeshment of economic and social freedoms. Given that

the EU’s powerful norm-creating role gave its law supremacy within its area of com-

petence, the guarantee of market freedoms without social freedoms gave the EU the

power to disrupt social law at Member-State level. This was exacerbated by the Euro-

pean Court of Justice’s expansive interpretation of market freedoms.3 Social consider-

ations were not seen as rights in themselves, but as derogations from economic rights,

and therefore to be narrowly interpreted.4 Only the right to equal pay for equal work,

because of its positive protection in the Treaty, was given the status of a fundamental

right by the Court of Justice.5

It was only in the closing years of the twentieth century that the EU acknowledged

its responsibility within the social field, as manifested in the Social Chapter introduced

by the Treaty of Amsterdam, together with the strengthening of jurisdiction over dis-

crimination issues in Article 13 of the Treaty. The sea-change in attitude towards the

European Law Journal Volume 12

42 © 2006 The Author

Journal compilation © Blackwell Publishing Ltd. 2006

1D. Collins, ‘Social Policy’, in J. Lodge (ed) Institutions and Policies of the European Community (Pinter,

1983), p 98.

2M. Maduro, ‘Striking the Elusive Balance Between Economic Freedom and Social Rights in the EU’, in

P. Alston (ed.), The EU and Human Rights (Oxford University Press,1999) p. 468.

3Case C-55/94 Gebhard [1995] ECR I-4165, at para 34; Case 8/74 Procureur du Roi v Dassonville [1974]

ECR 837.

4Case 120/78 Cassis de Dijon [1979] ECR 649.

5Case 43/75 Defrenne v Sabena [1976] ECR 455.