Enemy at the (flood) gates – Bringing the EU back to social justice through the international protection of social rights. A legal perspective

par Marco Rocca

During the years of the Great Recession we are witnessing a growing tension between the action of the institutions of the European Union (EU) and the rights and values embodied by the Conventions of the International Labour Organisation (ILO) and by the European Social Charter (ESC). The present contribution hence explores the legal relationship between the EU and those legal orders. In developing this analysis I adopt a positivist approach to the definition of “social justice”. Thus, I consider that this concept includes the respect of international standards of protection of social rights. The analysis is developed in six sections.

In the first section, the contribution provides a brief historical account of the relationship between the process of European  integration and the two legal orders mentioned before. Coming to our main topic, in order to identify the said tension we focus on two areas which are examined respectively in the second and third section of our contribution. In section two I analyse briefly the labour market reforms imposed on Greece by the so-called Troika of the EU Commission,the European Central Bank, and the International Monetary Found. Section three presents the doctrine developed by the Court of Justice of the EU regarding the relationships between fundamental social rights and fundamental freedoms of the EU internal market. The present contribution shows that, with respect to both areas, the effects of the EU action have been openly condemned by the supervisory bodies of the ILO and of the ESC. This gives rise to an unprecedented conflict between legal orders, with EU Member States caught between the respect of EU law and the obligations stemming from international agreements which they have ratified. The outcome of this conflict is particularly difficult to foresee. The contribution thus adopts a legal perspective, by looking, in the fourth section, at the possibilities offered by the EU legal order for a more genuine commitment to the respect of international standards of protection of social rights. Following the definition adopted in the contribution, such a commitment could prove invaluable in getting the EU on the track of social justice. However, in section five I also consider the other possible outcome of the conflict, exploring the legal effects of a reduced commitment of EU Member States to the respect of international standards of protection of social rights, in the form of a concerted withdrawal from relevant international agreements. Finally, section six is devoted to  concluding remarks, on the background of the ongoing economic and political crisis of the EU. Those conclusions explore the possible role of international standards in increasing the « output legitimacy » of the EU.

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