Social Rights

Table of Contents

Overview

Title IV of the EU Charter of Fundamental Rights deals with social rights and principles. It is entitled “Solidarity”. Many of the rights and principles are based on the European Social Charter and related international instruments.

Prior to the adoption of the Charter, there was debate about the scope of the social provisions. Some states were opposed to the principle of inclusion of social rights in the Charter. Title IV of the Charter reflects a compromise. Many of the rights are in the nature of principles. Most are subject to the proviso that the right is enjoyed in accordance with EU national laws and practices.

The United Kingdom and Poland adopted protocols confirming that the part does not create justiciable rights applicable to Poland and the United Kingdom save in so far as such rights are provided under national law.

The bulk of the right protect workers. Workers include employees but also others who are not strictly employees and have atypical working arrangements. A worker is a person who pursues real genuine activities to the exclusion of activities of such a small scale to be regarded as purely marginal or as ancillary. A worker is somebody who performs services for and under the direction of another person in return for which he or she receives remuneration for a period of time.

Consultation

Article 27 provides for rights for workers and their representatives to be consulted in accordance with EU and national law. There is EU legislation in the area of employment information and consultation. For example, in the area of collective redundancies, certain consultation is required in advance.

Article 27, as with several of the other articles, is subject to and applies under the conditions provided for in EU and national legislation. This was intended to secure that its scope would not be extended by reason of the Article.

The European Social Charter and the Community Charter on the rights of workers have further more detailed provisions on the cases in which workers and /or their representatives must be informed and consulted. The European Social Charter contemplates regular information about the economic and financial situation of a business and consultation on proposed decisions that can substantially affect workers’ interests and their employment position.

The Community Charter also confirms that there should be consultation and information in relation to technological changes and measures affecting which affect frontier workers.

The information must be such that it allows workers to understand and form an opinion on the subject matter concerned. Consultation does not require collective bargaining. Representatives must be given the opportunity to make their views known. It does not prejudice the rights of the employer to make the ultimate decision. Consultation should be in sufficient time before a final decision is made to allow the workers to formulate their opinions and communicate a position to the employees.

Right of Collective Bargaining and Action

Article 28 provides for the right to collective bargaining and the right to take collective action. Collective bargaining is understood to refer to negotiations about entering collective agreements on behalf of employees with the employer. Taking collective action includes strike action letter forms of industrial action it also covers actions by employers.

Article 28 is based on the European Social Charter and the Community Charter on the Fundamental Social Rights of Workers. Article 28 supplements Article 12 of the Charter in relation to the right to form associations. It may create individual rights in favour of employees and employers.

Articles 152 and ,153(5) of the TFEU requires the EU to recognise and promote the role of social partners. Article 153 confirms that the EU is not competent to legislate on the right of association, right to strike right to impose lockouts and on pay.

The rights are to be exercised in accordance with EU law and national laws and practice. It has been suggested that the provision read literally, would be unduly limited if it was to be entirely subordinated to EU law and national law. The better approach appears to be that the Article should be given meaning by applying to legislation the basic principles of EU laws such as proportionality and non-discrimination.

Placement Services

Article 29 Placement services

Placement services refer to both public and private sector employment agencies. The principle underpins EU freedom of movement and to do business throughout the EU.

EU regulation provides that the citizens are to be treated equally in relation to services offered by employment offices throughout the EU. Article 29 extends rights to all persons.

The Article is likely to require states to offer a placement service free of charge. This already is reflected in the European Social Charter. It also requires that states give access to the service free of charge.

Dismissal

Article 30 provides a right to protection against unjustified dismissal in accordance with EU law and national laws and practice. The principle is expressed as a right but is subject to the provisions of EU law and national law and practices.

Laws on unfair dismissal are national laws. EU law has some indirect effects. Article 153 does provide a legislative basis for legislation in the area.

It is not clear to what extent Article 30 adds to existing unfair dismissal protections. It may reinforce the right to be given reasons. It may reinforce the application of Article 47 in relation to the right to be given reasons for a decision and the right to defence.

The European Social Charter provides that the reasons must be valid. They must be connected with the worker’s capacity, conduct or based on the operational requirements of the undertaking establishment or service. In the case of termination without good reason, the Charter requires that the worker must be paid adequate compensation and /or be given other appropriate relief including reinstatement.

Working Conditions

Article 31 confirms the right of workers to working conditions which respect his or her health safety and dignity. It provides workers have the right to limitation of maximum working hours to daily and weekly rest periods and annual periods of paid leave.

EU legislation provides detailed rules in relation to occupational health and safety standards. They include general principles and specific rules in relation to occupational health and safety.

In some contexts, the provision may be invoked by private persons in disputes between employer and employee. This has been confirmed by the Court of Justice which decided that the provisions expressed are sufficiently unconditional and mandatory terms. Therefore, they can be relied on directly by an employee against an employer even in the private sector. To the extent that national law did not give effect to the principles of the Charter it would have to be interpreted or disapplied accordingly.

Young Persons

Article 32 provides for the prohibition of child labour and the protection of young people at work. If supplements Article 24 of the charter which relates to children’s rights. There is EU legislation on child labour designed to protect a child’s educational opportunities.

It applies before school leaving age which varies from state to state but may not be lower than 15 years under the EU directive. The EU directive allows certain exceptions such as for children who are employed in the performance of cultural artistic sports advertising activities.

Article 32(2) refers to the appropriate working conditions for young people which is generally understood to refer to persons under 18 years. The working conditions must be appropriate to their age, and they must have appropriate protection.

Family & Professional Life

Article 33 provides for the enjoyment of family and professional life. It provides that to reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity, and a right to paid maternity leave and parental following the birth or adoption of a child.

Family includes same-sex couples and single parent families. The European Social Charter elaborates on possible protections including in the area of social and family persons.

Social Benefits

Article 34 recognises entitlement to social security and social assistance benefits. The principles are Articles 153 to 156 of the Treaty on the Functioning of the European Union, the European Social Charter and the Community Charter on the rights of Workers.

Article 34.2 is based on the above Charters and on EU regulations in relation to the rights of workers as well as the legislation in the area of social security.

The Article does not provide a general right to fair and just working conditions nor to a right to fair remuneration.

Working conditions are to be understood in the same manner as provided in Article 156 of the Treaty on the functioning of the European Union. This provides.

With a view to achieving the objectives of Article 151 and without prejudice to the other provisions of the Treaties, the Commission shall encourage cooperation between the Member States and facilitate the coordination of their action in all social policy fields under this Chapter, particularly in matters relating to:

employment,
labour law and working conditions,
basic and advanced vocational training,
social security,
prevention of occupational accidents and diseases,
occupational hygiene,
the right of association and collective bargaining between employers and workers.

Reference to the worker’s dignity is likely to refer to principles in the European Social Charter requiring protection against sexual harassment and bullying.

There is extensive EU legislation giving effect to working time including daily and other periodic rest periods as well as annual holidays.

Article 35 Healthcare.

Article 35 provides a right of access to preventative healthcare and the right to benefit from medical treatment under the conditions established by national laws and practice. It guarantees rights to access, implicitly on the basis of equality. EU does not legislate directly in healthcare, but it is the subject of national legislation.

Article 168 of the Treaty of the Functioning of the European Union provides for the precautionary principle. It provides that a high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.

Union action, which shall complement national policies, shall be directed towards improving public health, preventing physical and mental illness and diseases, and obviating sources of danger to physical and mental health. Such action shall cover the fight against the major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health information and education, and monitoring, early warning of and combating serious cross-border threats to health.

The principle in Article 168 that a high level of human health protection shall be ensured has been referred to in case law has been referred to in case law in relation to the exercise of other fundamental rights.

Environment

Article 37 provides that a high level of environmental protection and improvement of the quality of the environment must be integrated into the polices of the EU and ensured in accordance with the principle of sustainable development.

Article 37 reflects the EU’s environmental policy objectives set out in Article 191 of the Treaty on the Functioning of the European Union. It applies under the same conditions.

There is an extensive body of EU legislation in the area of environment protection. There are rights of access to information on the environment and rights to participate in environmental decisions.