The Effectiveness of Social Rights in the EU

Front matter

Nadia Maccabiani

The Effectiveness of Social Rights in the EU

Social Inclusion and European Governance.

Foreword

I. Theoretical and factual premises

1. Social rights: a few general features

2. Human dignity, equality, solidarity

3. The effectiveness of social rights

4. National social rights and European economic governance 5. The multidimensionality of poverty and social exclusion

II. Testing transnational social inclusion

Part I. The European Court of Justice’s case law

1. General features 2. European evidence of fragmented transnational social inclusion 2.1. Right of workers to social advantages 2.2. Rights to education and training and study grants 2.3. Right to social assistance for inactive citizens 2.3.1. Towards transnational inclusion 2.3.2. Reverse transnational inclusion 2.4. Right to healthcare 2.4.1. Hospital healthcare 2.4.2. Medical healthcare 2.4.3. Directive 2011/24/EU

Part Il. The Italian Constitutional Court’s case law and the reasonableness scrutiny

1. Italian evidence of transnational social inclusion 2. The reasonableness test for effective social inclusion 3. Striking a first assessment

III. Testing national social inclusion

Part I. European Governance

1. General features 2. New challenges for legal studies

Part II. From Lisbon to Europe 2020

. The background

. Beginning the route

. The Lisbon Strategy

. The Revised Lisbon Strategy

. The Active Social Inclusion approach . Europe 2020

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Part Ill. The evolutionary path followed by social inclusion indicators

1. Implications of social indicators

2. The Social Protection Committee (SPC)

3. A first set of common agreed social indicators: the Laeken indicators

4. Deepening the Laeken indicators: the multidimensionality of poverty and social exclusion

IV. Embedding social inclusion within the economic governance framework

Part I. The follow-up: social inclusion for its own sake

1. Political, doctrinal and technical context

2. The “social dimension” of the European economic governance

3. Beyond the mere “social dimension”: changing the usual approach 4. More rights-driven social indicators within the European semester 5. Open challenges

Part II. Some constitutional reference points

1. Rights and policies

2. The core question

3. A re-boosted role for legal studies vis-a-vis the effectiveness of social rights within the economic governance framework

4. Substantial Democracy

Bibliography

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FOREWORD

The subject of the current study is quite popular: in periods of spreading inequalities, increasing social exclusion and increasing poverty, the effectiveness of social rights for social inclusion chiefly comes into focus.

Indeed, despite citizens being more equal than in the past due to the many fundamental Charters at the national, European and international levels that enshrine their rights, they are in reality growing substantially more unequal because of the lack of effectiveness of these same rights’. Consequently, the current pivotal issue is not whether to enact a new catalogue of social rights” able to face new socioeconomic challenges. On the one hand, the broad meaning of fundamental principles and values along with the existing constitutional social rights already fit the purpose’; on the other hand, the effectiveness of social rights falls behind formal catalogues and entitlements. Moreover, their judicial enforceability does not necessarily correspond to their effectiveness due to the boundaries of the reasonableness scrutiny in respect of the scope of political discretion and the difficulty faced by the most vulnerable people when bringing their claims before courts.

This is a common feature of the EU Member States. The Union system also facilitates externalities and spill-overs across national boundaries (even more so within the EMU). Consequently, troubles with lack of effectiveness of social rights and flaws of social inclusion deliveries, could be better assessed, drawing on the EU and its governance as a whole.

! L, FERRAJOLI, L’Uguaglianza e le sue garanzie, in M. CARTABIA, T. VETTOR (Edited by), Le ragioni dell’uguaglianza — Atti del VI Convegno della facolta di giurisprudenza — Universita degli Studi Milano — Bicocca 15-16 Maggio 2008, Giuffré, Milan, 2009, p. 39.

2 J.H.H. WEILER, Diritti umani, costituzionalismo ed integrazione: Iconografia e feticismo, in Quaderni costituzionali, No. 3/2002, p. 529, states that the Union needs neither further rights within its lists nor more lists of rights; rather, what it really needs is the programmes and administrative structure to effectuate the existing rights. On the dispute again new social rights linked to the socioeconomic evolution, see S. SCAGLIARINI, «L incessante dinamica della vita moderna»: i nuovi diritti sociali nella giurisprudenza costituzionale, in www. gruppodipisa.it.

3 A. D’ALOIA, Introduzione: I diritti come immagini in movimento: tra norma e cultura costituzionale, in A. D’ ALOIA (Edited by), Diritti e costituzione: Profili evolutivi e dimensioni inedite, Giuffré, Milan, 2003, p. XIV.

In this respect, legal studies have usually dealt with social inclusion and the implied social rights following a double path. On the one hand, they have spoken about ‘‘transnational social inclusion’’ (see Chapter II) according to the analysis of European secondary legislation protecting freedom of movement of workers and services and the relevant ECJ case law, stressing when they have worked as an «engine of integration»* among citizens of different member states by means of the opening of national boundaries for «transnational solidarity»?. On the other hand, they have spoken about the Europeanization of a language and the institutionalisation of a process? dating back to the 2000’s Lisbon Strategy (see Chapter III), they have also denounced its policy-driven approach which is compatible with different policy frames and claimed for a targeted and rights-driven approach’.

Our endeavour is to take a further step in the direction of the effectiveness of social rights for social inclusion in reference to more recent developments at the European level. Consequently, the focus would shift to other experimental ways better able to cope with the current multifaceted implications of social exclusion, poverty and inequalities for the purpose of effective and improved social inclusion. Indeed, this is an issue relevant not only for policy-makers and social scientists but for legal scholars too. As «the constitutional operating system often hums silently in the background and it is not necessary for the actors fully to perceive or articulate its impact»*, legal scholars are expected to pick up and underline the main aspects of constitutional relevance implied in the process and steer it towards being constitutionally consistent. This is the background of our claim for an interdisciplinary dialogue with social scientists in reference to the implications underlying the use of social indicators within the European governance system, which has become more necessary after the latest evolution within the economic governance framework (Chapter IV).

4 E. SPAVENTA, What is left of Union citizenship?, in A. SCHRAUWEN, C. ECKES, M. WEIMER (Edited by), Inclusion and exclusion in the European Union, in Collected Papers, Amsterdam Law School Legal Studies, Research Paper No. 2016-34 and Amsterdam Centre for European Law and Governance, Research Paper No. 2016-05, p. 31.

5 M. FERRERA, Towards an ‘open’ social citizenship? The new boundaries of welfare in the European Union, in G. DE BURCA (Edited by), EU law and the welfare state, Oxford University Press, Oxford, 2005, p. 34; C. BARNARD, EU citizenship and the principle of solidarity, in M. DOUGAN, E. SPAVENTA (Edited by), Social welfare and EU law, Hart Publishing, Oxford and Portland, 2005, p. 166.

6 K. ARMSTRONG, Governing social inclusion — Europeanization through policy coordination, Oxford University Press, Oxford, 2010, p. 16 ff. 7 Ibid., p. 258.

8 J.H.H.. WEILER The constitution of Europe, cit., p. 223.