# The European Social Charter and the European Union

Marco Rocca

► To cite this version:

Marco Rocca. The European Social Charter and the European Union. Carole Nivard; Stefano Angeleri. The European Social Charter: A Commentary. volume 1 "Cross-cutting Themes", 1, Brill Nijhoff, pp.375-401, 2022, The European Social Charter: A Commentary, 9789004434042. hal-03779573

HAL Id: hal-03779573

https://hal.science/hal-03779573v1

Submitted on 2 Mar 2026

HAL is a multi-disciplinary open access
archive for the deposit and dissemination of sci-
entific research documents, whether they are pub-
lished or not. The documents may come from
teaching and research institutions in France or
abroad, or from public or private research centers.

L'archive ouverte pluridisciplinaire HAL, est
destinée au dépôt et à la diffusion de documents
scientifiques de niveau recherche, publiés ou non,
émanant des établissements d'enseignement et de
recherche français ou étrangers, des laboratoires
publics ou privés.

<figure><img src="image_1.png" /></figure>

Distributed under a Creative Commons CC BY 4.0 - Attribution - International License
Marco Rocca, The European Social Charter and the European Union, in C. Nivard and S. Angeleri (eds.), The European Social Charter: A Commentary. Volume 1: Cross-Cutting Themes, Brill Nijhoff, 375-401, 2022. Preprint approved by the editor.

# THE EUROPEAN SOCIAL CHARTER:
## A COMMENTARY

by

the Academic Network on the European Social Charter and
Social Rights

### Volume 1 –
### Crosscutting Themes

Stefano Angeleri & Carole Nivard (eds.)

*Manuscript submitted to BRILL PUBLISHERS*

In

August 2021
# Chapter 14. The European Social Charter and the European Union

Marco Rocca

The European Union (EU), in its different denominations<fnref n="1" />, and the European Social Charter (ESC) have coexisted for almost 60 years<fnref n="2" />. All EU Member States have ratified the 1961 or Revised ESC, and yet, as Olivier De Schutter puts it<fnref n="3" />, this instrument, being rarely referred to, has never played an important role in the development of EU law in the social field.

The present chapter explores the relationship between the two legal orders. It does so from a legal perspective, looking mainly at the history and present situation of this relationship. Thus, considerations concerning future perspectives and the proposals aimed at reforming one or other system to increase coherence and dialogue do not occupy a prominent role in our analysis. This is not because these changes entail some insurmountable technical difficulty but stems instead from the impossibility of guessing the political feasibility of the necessary reforms and/or the willingness of relevant actors to engage with them.

The chapter is structured as follows. Section I presents a bird's eye view of the points of contact between the two legal orders, analysing the references each has made to the other, in primary and secondary legislation, other policy documents and case law. Section II offers a different perspective by engaging in two detailed case studies. These case studies investigate two recent situations where the application of EU and ESC standards to similar contexts led to a conflict between the two legal orders. The last section is devoted to a final evaluation.

## I. THE SYNERGIES OF A COMPLICATED RELATIONSHIP

The two systems here at stake lack a hierarchical relationship. Indeed, although, as stated in the Introduction, all its Member States are parties either to the ESC or to the Revised ESC, the EU itself is not a member of either. Furthermore, while the Lisbon Treaty famously included the obligation for the EU to join the European Convention on Human Rights<fnref n="4" /> (ECHR), the ESC did not enjoy similar attention. Broadening the picture, the EU Treaties include a seemingly firm commitment to respecting international law<fnref n="5" />, embodied by the content of Articles 3(5)<fnref n="6" /> and 21(1)<fnref n="7" /> of the Treaty on European Union (TEU). At the same time, the EU takes a strict approach to conflicts between EU law and international obligations stemming from agreements predating the Treaty of Rome (1958) or the accession of the Member State in question. Indeed, while the first paragraph of Article 351 of the Treaty on the Functioning of the European

<footnote n="1">¹ Along this Chapter, we will use the term “European Union” (EU) also when referring to case law and legislation coming from periods when a different denomination was in use (European Communities, European Community, etc...).</footnote>

<footnote n="2">² One might say that the influence between the two legal orders started even before their formal coexistence, as the recent (at the time) creation of the European Communities was clearly in the mind of the drafters of the European Social Charter. Indeed, the Convocation of the European Tripartite Regional Conference mentioned the creation of the European Communities as further proof of the importance of establishing the ESC (ESC, Collected Travaux Préparatoires, vol. 5, p. 175).</footnote>

<footnote n="3">³ Olivier DE SCHUTTER, “Le rôle de la Charte sociale européenne dans le développement du droit de l'Union Européenne”, in Olivier DE SCHUTTER (ed.), *The European Social Charter: a Social Constitution for Europe*, Brussels, Bruylant, 2010, p. 95.</footnote>

<footnote n="4">⁴ Article 6 TEU. Indeed, mentioning this may sound rather pointless at the time of writing, in light of CJEU(FC), 18 December 2014, Opinion 2/13.</footnote>

<footnote n="5">⁵ Cf. Grainne DE BURÇA, “After the EU Charter of Fundamental Rights: the Court of Justice as a Human Rights Adjudicator?”, *Maastricht Journal of European and Comparative Law*, vol. 20, no. 2, 2013, p. 183.</footnote>

<footnote n="6">⁶ “In its relations with the wider world, the Union [...] shall contribute to [...] the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter” (emphasis added).</footnote>

<footnote n="7">⁷ “The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and *respect for the principles of the United Nations Charter and international law*” (emphasis added).</footnote>
Union (TFEU)<fnref n="8" /> allows Member States to justify non-compliance with EU law on the basis of the need to respect obligations stemming from these pre-existing Treaties, the second paragraph clarifies that Member States having recourse to this exception are under the obligation to solve the conflict. Such an obligation, for the concerned Member State, means attempting to renegotiate the agreement or, failing this avenue, unilaterally denouncing the instrument<fnref n="9" />.

Lacking a relationship of superiority or subordination, both the EU and the ESC can unilaterally define their relationship with each other. In the silence of primary or secondary law (A), the task of defining the relevance of a separate legal order will fall upon the judges and monitoring bodies superintending each system (B)<fnref n="10" />.

A. TEXTUAL REFERENCES

The EU Treaties first referred to the ESC in the Preamble of the Single European Act of 1986¹¹. Article 151 TFEU explicitly mentions the ESC in the chapter related to social policy<fnref n="12" />, acknowledging the inspirational role of this document. Turning to the EU's own instrument for safeguarding fundamental rights, the EU Charter of Fundamental Rights (EUCFR), one can find another occurrence of differential treatment of the ESC in comparison with the ECHR. Indeed, although the EUCFR makes a clear and explicit reference to the European Convention on Human Rights<fnref n="13" />, the ESC is never mentioned in the text<fnref n="14" />. This silence is all the more striking if one considers that several Articles<fnref n="15" /> of the EUCFR itself were directly inspired by similar provisions of the ESC, as stated in the Explanations relating to the Charter of Fundamental Rights of the European Union<fnref n="16" /> drafted by the Praesidium of the European Convention<fnref n="17" />. Furthermore, the Communication from the Commission on the Strategy for effective implementation of the Charter of Fundamental Rights by the European Union<fnref n="18" /> also mentions the Social Charters adopted by the Council of Europe among the sources for identifying "*the fundamental rights protected in the Union*".

Article 53 EUCFR states that the Charter itself should not be interpreted "as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party"<fnref n="19" /> (the emphasis is mine). Does this formulation include the Revised ESC?

<footnote n="8">⁸"The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, *shall not be affected by the provisions of the Treaties*" (emphasis added).</footnote>

<footnote n="9">⁹ Cf. CJEU, 27 February 1962, *Commission v. Italian Republic*, C-10/61; CJEU, 4 July 2000, *Commission v. Portuguese Republic*, C-84/98, § 58: "Furthermore, although, in the context of Article 234 of the Treaty, the Member States have a choice as to the appropriate steps to be taken, they are nevertheless under an obligation to eliminate any incompatibilities existing between a pre-Community convention and the EC Treaty. If a Member State encounters difficulties which make adjustment of an agreement impossible, *an obligation to denounce that agreement cannot therefore be excluded*" (emphasis added).</footnote>

<footnote n="10">¹⁰ Cf. Sabino CASSESE, *When Legal Orders Collide: The Role of Courts*, Seville, Global Law Press, 2010.</footnote>

<footnote n="11">¹¹ Single European Act (Luxembourg, 17 February, and the Hague, 28 February 1986), Preamble, § 3: "[...] determined to work together to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice".</footnote>

<footnote n="12">¹² Article 151 TFEU: "The Union and the Member States, having in mind fundamental social rights such as those set out in the *European Social Charter signed at Turin* on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives [...]" (emphasis added).</footnote>

<footnote n="13">¹³ Article 52(2) EU Charter of Fundamental Rights (CFR): "In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection".</footnote>

<footnote n="14">¹⁴ A reference can be found in the Preamble of the EU CFR, which mentions "the Social Charters adopted by the Community and by the Council of Europe" among the list of texts which establish rights which the EUCFR is meant to "reaffirm".</footnote>

<footnote n="15">¹⁵ Notably, 14 Articles of the EU CFR are mentioned in this context (Articles 14, 15, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35).</footnote>

<footnote n="16">¹⁶ Official Journal of the European Union (OJEU), 14.12.2007, No. C 303, p. 17.</footnote>

<footnote n="17">¹⁷ "These explanations were originally prepared under the authority of the Praesidium of the Convention which drafted the Charter of Fundamental Rights of the European Union. [...] Although they do not as such have the status of law, they are a valuable tool of interpretation intended to clarify the provisions of the Charter".</footnote>

<footnote n="18">¹⁸ COM(2010) 573 final.</footnote>

<footnote n="19">¹⁹ Cf. Bruno DE WITTE, "Article 53", in, Steve PEERS, Tamara HERVEY, Jeff KENNER, Angela WARD (eds.), *The EU Charter of Fundamental Rights A Commentary*, Oxford, Hart Publishing, 2014, pp. 1523-1539.</footnote>
The answer is not self-evident, due to the peculiar nature of the instrument, which was first signed in 1961 and then revised in 1996. While some Member States have only ratified the first version of the ESC, some have ratified both and another group of States has only ratified the revised version. Thus, neither the 1961 ESC nor the Revised ESC, taken in isolation, have been ratified by all Member States. This situation is summarised in the table below.

<table><caption>Table 1. EU Member States' ratifications of the (Rev)ESC (as of June 2021)</caption><thead><tr><td>Instrument</td><td>Member States</td></tr></thead><tbody><tr><td>Only ESC (1961)</td><td>Croatia, Czech Republic, Denmark, Luxembourg, Poland, United Kingdom</td></tr><tr><td>Only RevESC (1996)</td><td>Bulgaria, Estonia, Lithuania, Romania, Slovenia</td></tr><tr><td>Both</td><td>Austria, Belgium, Cyprus, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Malta, the Netherlands, Portugal, Slovakia, Spain, Sweden</td></tr></tbody></table>

However, a former member of the European Committee of Social Rights (ECSR) has argued in favour of an interpretation of the ESC as falling into the category of international agreements signed by all Member States and, hence, covered by Article 53 EUCFR<fnref n="20" />. The CJEU has also given the impression of favouring the positive answer when, first, in the *Kiiski* decision<fnref n="21" /> and then in a more recent one<fnref n="22" />, it referred to “the European Social Charter, to which all Member States are parties in so far as they are party to it in its original version, its revised version or in both versions”<fnref n="23" /> (our emphasis). However, the same court has never addressed the specific issue of the inclusion of the ESC under the international agreements indicated by Article 53. We will come back to this in our conclusions.

Secondary EU legislation, as well as non-binding documents emanating from EU institutions and agencies, also include several references to the ESC. The Working Document concerning the relationship between EU law and the ESC, published on 15 July 2014 by the ECSR, lists all such occurrences<fnref n="24" />. Many of these references list the ESC as a source of inspiration and, when included in secondary legislation, are relegated to recitals. In some instances, however, such references are found in the actual legal text and guarantee the possibility for Member States to apply more favourable provisions<fnref n="25" />. The recently proclaimed European Pillar of Social Rights<fnref n="26" /> mentions the ESC twice in its preamble, to restate the content of Article 151 TFEU (Recital 3) and to affirm that the Pillar itself shall not be interpreted as “restricting or adversely affecting rights and principles as recognised, in their respective fields of application, by Union law or international law and by international agreements to which the Union or all the Member States are party, including the European Social Charter signed at Turin on 18 October 1961”. It is worth noting that this formulation seems to reinforce, at least for the 1961 ESC, the aforementioned interpretation concerning the inclusion of the ESC among the international agreements to which all Member States are parties.

From the point of view of the ESC and in terms of textual references, an explicit mention of the EU, related to the possibility of its accession to the ESC, was envisaged during the revision of the Charter, which took place between 1990 and 1994²⁷. The 1994 draft of the Revised ESC included, in the proposed Article L, a

<footnote n="20">²⁰ Monika SCHLACHTER, “The European Social Charter: Could It Contribute to a More Social Europe?”, in Nicola CONTOURIS, Mark FREEDLAND (eds.), *Resocialising Europe in a Time of Crisis*, Cambridge, CUP, 2013, p. 116.</footnote>

<footnote n="21">²¹ CJEU, 20 September 2007, *Sari Kiiski v Tampereen kaupunki*, C-116/06, § 48.</footnote>

<footnote n="22">²² CJEU [GC], 6 November 2018, *Max-Planck-Gesellschaft zur Förderung der Wissenschaftene.V. v Tetsuji Shimizu*, C-684/16.</footnote>

<footnote n="23">²³ *Ibid.*, § 70.</footnote>

<footnote n="24">²⁴ ECSR, “The Relationship between European Union Law and the European Social Charter”, Working Document, 15 July 2014, pp. 14-20.</footnote>

<footnote n="25">²⁵ Cf. for instance Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, Article 3(3)(c); Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, Article 3(4)(b).</footnote>

<footnote n="26">²⁶ European Commission, Recommendation on the European Pillar of Social Rights, COM(2017) 2600 final, and Communication of 26 April 2017 establishing a European Pillar of Social Rights, COM(2017) 250 final; cf. Sacha GARBEN, “The European Pillar of Social Rights: Effectively Addressing Displacement?”, *European Constitutional Law Review*, vol. 14, 2018, pp. 210–230.</footnote>

<footnote n="27">²⁷ However, the need of cooperation between the Council of Europe and the European Communities had already been highlighted during the negotiations which would lead to European Social Charter, and notably in the Opinion presented by the Committee on Social Questions (23 September 1953) (cf. ESC Collected Travaux Préparatoires, vol. 1, p.21: “The Council of Europe and the</footnote>
third and final group (“Considered”) includes decisions in which the court engaged with arguments grounded in the ESC, at the very least to develop the reasons for its denial of applicability to EU institutions<fnref n="36" />.

This subdivision resulted in 16 decisions in the “Question” group, 24 in the “Mentioned” group and 5 in the “Considered” group. It is worth mentioning that, as the table shows, the last group consists wholly of decisions delivered by the Civil Service Tribunal. Furthermore, the ECSR is only mentioned in two decisions. In both of these, the mention comes from either the submission of one of the parties<fnref n="37" /> or the question asked by the referring court<fnref n="38" />. As such, it remains impossible to know the precise opinion of the CJEU regarding the place of ECSR decisions in its reasoning. Such a prolonged and consistent disregard for this corpus of decisions, even when these would be perfectly compatible with the protection accorded to social rights in the EU legal order, seems at least to suggest a deliberate stance in denying that the interpretations provided by the ESCR had any specific value.

<table><caption>Table 2. References to the European Social Charter by the Court of Justice of the European Union</caption><thead><tr><td>Case</td><td>Document</td><td>Date</td><td>Name of the parties</td><td>Reference to ESC</td></tr></thead><tbody><tr><td>C-684/16</td><td>Judgment</td><td>06/11/2018</td><td>Max-Planck-Gesellschaft</td><td>Mentioned</td></tr><tr><td>C-569/16 and C-570/16</td><td>Judgment</td><td>06/11/2018</td><td>Bauer</td><td>Mentioned</td></tr><tr><td>C-306/16</td><td>Judgment</td><td>09/11/2017</td><td>Antonio Fernando Maio Marques da Rosa</td><td>Mentioned</td></tr><tr><td>C-117/14</td><td>Judgment</td><td>05/02/2015</td><td>Poclava</td><td>Mentioned</td></tr><tr><td>C-647/13</td><td>Judgment</td><td>04/02/2015</td><td>Melchior</td><td>Question</td></tr><tr><td>T-402/18</td><td>Judgment</td><td>29/01/2020</td><td>Roberto Aquino</td><td>Question</td></tr><tr><td>C-332/13</td><td>Order</td><td>16/01/2014</td><td>Weigl</td><td>Question</td></tr><tr><td>T-108/11 P</td><td>Judgment</td><td>04/12/2013</td><td>ETF / Michel</td><td>Mentioned</td></tr><tr><td>T-107/11 P</td><td>Judgment</td><td>04/12/2013</td><td>ETF / Schuerings</td><td>Mentioned</td></tr><tr><td>C-579/12 RX II</td><td>Judgment</td><td>19/09/2013</td><td>Commission/Strack</td><td>Mentioned</td></tr><tr><td>T-645/11 P</td><td>Judgment</td><td>18/06/2013</td><td>Heath / BCE</td><td>Mentioned</td></tr><tr><td>C-45/12</td><td>Judgment</td><td>13/06/2013</td><td>Hadj Ahmed</td><td>Question</td></tr><tr><td>F-4/11</td><td>Judgment</td><td>10/07/2012</td><td>AV / Commission</td><td>Question</td></tr><tr><td>F-121/10</td><td>Judgment</td><td>29/09/2011</td><td>Heath / BCE</td><td>Considered</td></tr><tr><td>T-325/09 P</td><td>Judgment</td><td>21/09/2011</td><td>Adjemian</td><td>Mentioned</td></tr><tr><td>F-84/08</td><td>Judgment</td><td>28/10/2010</td><td>Cerafogli / ECB</td><td>Question</td></tr><tr><td>C-271/08</td><td>Judgment</td><td>15/07/2010</td><td>Commission/Germany</td><td>Mentioned</td></tr><tr><td>C-396/08 and C-395/08</td><td>Judgment</td><td>10/06/2010</td><td>Lottiand Matteucci</td><td>Mentioned</td></tr><tr><td>F-57/08</td><td>Judgment</td><td>17/11/2009</td><td>Palazzo / Commission</td><td>Considered</td></tr><tr><td>F-60/08 and F-69/07</td><td>Judgment</td><td>29/09/2009</td><td>O / Commission</td><td>Considered</td></tr></tbody></table>

Workers, adopted at the meeting of the European Council in Strasbourg on 9 December 1989 (judgment of 19 September 2013, Review of Commission v Strack, C-579/12 RX-II, EU:C:2013:570, paragraph 27)".

<footnote n="36">³⁶ Cf. for example Civil Service Tribunal, 29 September 2011, *Michael Heath v ECB*, F-121/10, § 121: "En troisième lieu, au sujet du grief du requérant tiré de l'allégation selon laquelle la BCE aurait méconnu le droit d'association du requérant, il doit être observé que celle-ci manque en droit. En effet, aucun des textes invoqués par le requérant ne prévoit d'obligation pour un employeur de conclure des conventions collectives en matière de politique salariale, ni même de prévoir une procédure permettant aux syndicats représentant les intérêts du personnel de jouer un rôle décisionnel dans la définition et la mise en œuvre des règles applicables au personnel. Tout au plus l'article 6, paragraphe 2, de la charte sociale européenne encourage-t-il, sans l'imposer, « l'institution de procédures de négociations volontaire entre employeurs ou les organisations d'employeurs, d'une part, et les organisations de travailleurs, d'autre part, en vue de régler les conditions d'emploi par conventions collectives » (...)".</footnote>

<footnote n="37">³⁷ CJEU, 30 April 2009, *Laleh Aayhan v European Parliament*, C-65/07, § 80.</footnote>

<footnote n="38">³⁸ CJEU, 5 February 2015, *Grima Janet Nisttabuz Poclava v Jose María Ariza Toledano*, C-117/14, § 23.</footnote>
<table><tr><td>T-404/06 P</td><td>Judgment</td><td>08/09/2009</td><td>ETF / Landgren</td><td>Mentioned</td></tr><tr><td>F-12/08</td><td>Judgment</td><td>09/06/2009</td><td>Nardin / Parlement</td><td>Mentioned</td></tr><tr><td>F-8/08 and F-134/07</td><td>Judgment</td><td>04/06/2009</td><td>Renier / Commission</td><td>Considered</td></tr><tr><td>F-65/07</td><td>Judgment</td><td>30/04/2009</td><td>Aayhan / Parlement</td><td>Mentioned</td></tr><tr><td>F-115/07</td><td>Judgment</td><td>28/04/2009</td><td>Balieu-Steinmetz and Noworyta / Parlement</td><td>Question</td></tr><tr><td>T-57/99</td><td>Judgment</td><td>10/12/2008</td><td>Nardone / Commission</td><td>Question</td></tr><tr><td>F-22/07</td><td>Judgment</td><td>04/09/2008</td><td>Lafili / Commission</td><td>Question</td></tr><tr><td>C-268/06</td><td>Judgment</td><td>15/04/2008</td><td>Impact</td><td>Mentioned</td></tr><tr><td>C-361/07</td><td>Order</td><td>16/01/2008</td><td>Polier</td><td>Question</td></tr><tr><td>C-341/05</td><td>Judgment</td><td>18/12/2007</td><td>Laval un Parteneri</td><td>Mentioned</td></tr><tr><td>C-438/05</td><td>Judgment</td><td>11/12/2007</td><td>International Transport Workers' Federation</td><td>Mentioned</td></tr><tr><td>C-116/06</td><td>Judgment</td><td>20/09/2007</td><td>Kiiski</td><td>Mentioned</td></tr><tr><td>C-13/05</td><td>Judgment</td><td>11/07/2006</td><td>ChacónNavas</td><td>Mentioned</td></tr><tr><td>C-540/03</td><td>Judgment</td><td>27/06/2006</td><td>Parlement / Conseil</td><td>Mentioned</td></tr><tr><td>T-37/97</td><td>Judgment</td><td>25/03/1999</td><td>Forges de Clabecq / Commission</td><td>Question</td></tr><tr><td>T-12/93</td><td>Judgment</td><td>27/04/1995</td><td>CCE Vittel / Commission</td><td>Question</td></tr><tr><td>T-96/92</td><td>Order</td><td>15/12/1992</td><td>CCE de la Société Générale des grandes sources / Commission</td><td>Question</td></tr><tr><td>T-45/90</td><td>Judgment</td><td>28/01/1992</td><td>Speybrouck / Parlement</td><td>Question</td></tr><tr><td>C-24/86</td><td>Judgment</td><td>02/02/1988</td><td>Blaizot</td><td>Mentioned</td></tr><tr><td>C-149/77</td><td>Judgment</td><td>15/06/1978</td><td>Defrenne</td><td>Mentioned</td></tr><tr><td>C-12/66</td><td>Judgment</td><td>22/06/1967</td><td>Williame / Commission de la CEEA</td><td>Question</td></tr></table>

The corpus behind Table 3 was built for the purposes of the present chapter. To maintain a similar methodology, we built this using the Hudoc website<fnref n="39" /> and searching for references to the “European Union”. Furthermore, we only included decisions stemming from the collective complaint procedure, as a panoply of conclusions simply refers to instruments of the EU in the context of reviewing national legislation implementing said instruments. This led to a corpus of 50 decisions. When dividing these into groups, we deviated slightly from the previous nomenclature in order to include a more granular subdivision that would fully account for the diversity of references. Hence, the group “Mentioned” includes decisions that simply refer to any document emanating from the EU but without any specific consideration of this document in the legal reasoning of the ECSR<fnref n="40" />. Decisions in the “Fact finding” group mention documents published by the EU and its agencies, but only as sources of information and proof concerning the reality on the ground<fnref n="41" />. The two remaining groups of decisions all entail a stronger engagement with EU documents, whether to discuss them in the context of the legal reasoning (“Discussed”)<fnref n="42" /> or to refer to the

<footnote n="39">³⁹ Of course, this choice, although necessary for the feasibility of this study, excludes several older decisions delivered by the ECSR.</footnote>

<footnote n="40">⁴⁰ Cf. for example: ECSR, *Centre on Housing Rights and Evictions (COHRE) v. France*, complaint No. 63/2010, decision on the merits of 28 June 2011, § 21: “Romanian and Bulgarian Roma have been citizens of the European Union since 1 January 2007 and without prejudice to the specific transitional provisions of the Act of Accession to the European Union of Romania and Bulgaria they enjoy freedom of movement under Article 45 of the Treaty on the Functioning of the European Union and Article 45 of the Charter of Fundamental Rights of the European Union that can only be restricted on public policy grounds [...]”.</footnote>

<footnote n="41">⁴¹ Cf. for example: ECSR, *European Roma and Travellers Forum (ERTF) v. the Czech Republic*, complaint No. 104/2014, decision on the merits of 17 May 2016, § 123: “Numerous sources confirm that Roma families face disproportionate health risks and discrimination in accessing health care, for example: Third Opinion on the Czech Republic, Committee on the Framework Convention for the Protection of National Minorities, §§ 19, 50, 1 July 2001, ACF/OP/III/(2011)008; UN Committee on Economic, Social and Cultural Rights, Concluding Observations on the second periodic report of the Czech Republic June 2014 § 9; Roma health report, Health Status of the Roma population, data collection in the member States of the European Union, (Executive Summary written by Matrix, for the European Commission)”.</footnote>

<footnote n="42">⁴² Cf. for example: ECSR, *Confédération générale du travail (CGT) v. France*, complaint No. 55/2009, decision on the merits of 23 June 2010, § 33: “In this regard, the Committee has already stated that it is neither competent to assess the conformity of national</footnote>
case law of the Court of Justice (“CJEU”)<fnref n="43" />. At the end of this exercise, 21 decisions were included in the “Mentioned” group, 5 in the “Fact finding” one, while 24 fell under the labels entailing a “stronger” degree of engagement, evenly split between 12 “CJEU” and 12 “Discussed” ones. It is worth noting that while “CJEU” decisions tend to refer to the case law of the Court of Justice in order to reinforce the conclusions of the ECSR<fnref n="44" />, a large number of decisions included in the “Discussed” category relate to the relationship between EU law and the ESC.

Looking at these decisions, one can identify the stance of the monitoring body when it comes to the relationship with EU law<fnref n="45" />. To summarise, the ECSR does not consider itself competent to assess the compliance of EU law with the ESC. This, quite evidently, stems from the fact that the EU is not itself a signatory to the ESC. Instead, the ESC reaffirms its competence to assess the compatibility with the ESC of national measures adopted by EU Member States to implement EU law<fnref n="46" />. The same reasoning extends to those measures adopted in order to bring a given national system into line with a decision of the CJEU<fnref n="47" />. Contrary to the stance of the ECtHR, first articulated in the *Bosphorus* decision<fnref n="48" />, the ESCR does not award any presumption of conformity, rebuttable or not, with the ESC to measures adopted in the application of EU law<fnref n="49" />. At the same time, the ECSR leaves the door open to future developments in EU law that might warrant the introduction of such a presumption<fnref n="50" />.

<table><caption>Table 3. References to EU sources by the European Committee of Social Rights</caption><thead><tr><td>Application No.</td><td>Date</td><td>Name of the parties</td><td>Reference to EU sources</td></tr></thead><tbody><tr><td>158/2017</td><td>11/09/2019</td><td>Confederazione Generale Italiana del Lavoro (CGIL) v. Italy</td><td>Mentioned</td></tr><tr><td>139/2016</td><td>11/09/2019</td><td>Central Union for Child Welfare (CUCW) v. Finland</td><td>Mentioned</td></tr><tr><td>143/2017</td><td>03/07/2019</td><td>Unione Generale Lavoratori - Federazione Nazionale Corpo forestale dello Stato (UGL-CFS) v. Italy</td><td>Mentioned</td></tr></tbody></table>

situations with a directive of the European Union nor to assess compliance of a directive with the European Social Charter. However, when member states of the European Union agree on binding measures in the form of directives which relate to matters within the remit of the European Social Charter, they should – both when preparing the text in question and when transposing it into national law – take full account of the commitments they have taken upon ratifying the European Social Charter. It is ultimately for the Committee to assess compliance of a national situation with the Charter, including when the transposition of a European Union directive into domestic law may affect the proper implementation of the Charter”.

<footnote n="43">⁴³ Cf. for example: ECSR, *Confédération générale du travail (CGT) v. France*, complaint No. 154/2017, decision on the merits of 18 October 2018, § 58: “The Committee notes that in light of the limitations to derogations from the reference period, the Court of Justice of the European Union has acknowledged that ‘the reference period may in no circumstances exceed 12 months’ and that it was ‘therefore possible to determine the minimum protection which must be provided in any event’ to workers (Court of Justice of the European Union, Judgment of 3 October 2000 in Case No. C-303/98, Sindicato de Médicos de Asistencia Pública (Simap) v. Spain, §69, 72)”.</footnote>

<footnote n="44">⁴⁴ Cf. for example ECSR, *Confédération Générale du Travail Force Ouvidère (FO) v. France*, complaint No. 118/2015, decision on the merits of 3 July 2018, § 69; ECSR, *Confédération générale du travail (CGT) v. France*, (No. 154/2009), cit., § 58.</footnote>

<footnote n="45">⁴⁵ Cf., among others, ECSR, *Confédération générale du travail (CGT) v. France*, (No. 55/2009), cit.</footnote>

<footnote n="46">⁴⁶ ECSR, *Confédération générale du travail (CGT) v. France*, (No. 55/2009), cit., § 33: “It is ultimately for the Committee to assess compliance of a national situation with the Charter, including when the transposition of a European Union directive into domestic law may affect the proper implementation of the Charter”.</footnote>

<footnote n="47">⁴⁷ ECSR, *Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v Sweden*, complaint No. 85/2012, decision on admissibility and the merits of 3 July 2013, § 73: “This means that it is ultimately for the Committee to assess compliance of a national situation with the Charter, including when legislative changes, which have been introduced into domestic law to comply with preliminary rulings given by the CJEU, may affect the implementation of the Charter”.</footnote>

<footnote n="48">⁴⁸ ECtHR [GC], 30 June 2005, *Bosphorus HavaYollar Turizm ve Ticaret Anonim Sirketi v. Ireland*, No. 45036/98, §§ 165-166: “the [European] Court [of Human Rights] finds that the protection of fundamental rights by Community law can be considered to be, and to have been at the relevant time, “equivalent” [...] to that of the Convention system [...] In the Court's view, therefore, it cannot be said that the protection of the applicant company's Convention rights was manifestly deficient, with the consequence that the relevant presumption of Convention compliance by the respondent State has not been rebutted”.</footnote>

<footnote n="49">⁴⁹ ECSR, *Confédération générale du travail (CGT) v. France*, (No. 55/2009), cit., § 35: “The Committee considers that neither the situation of social rights in the European Union legal order nor the process of elaboration of secondary legislation would justify a similar presumption – even rebuttable – of conformity of legal texts of the European Union with the European Social Charter”.</footnote>

<footnote n="50">⁵⁰ ECSR, *Confédération générale du travail (CGT) v. France*, (No. 55/2009), cit., § 37: “The Committee [...] will review its assessment on a possible presumption of conformity as soon as it considers that factors which the Court has identified when pronouncing on such a presumption in respect of the Convention and which are currently missing insofar as the European Social Charter is concerned have materialized”.</footnote>
<table>
  <tr>
    <td>145/2017</td>
    <td>22/05/2019</td>
    <td>International Federation of Associations of the Elderly (FIAPA) v. France</td>
    <td>Mentioned</td>
  </tr>
  <tr>
    <td>140/2016</td>
    <td>22/01/2019</td>
    <td>Confederazione Generale Italiana del Lavoro (CGIL) v. Italy</td>
    <td>Mentioned</td>
  </tr>
  <tr>
    <td>151/2017</td>
    <td>05/12/2018</td>
    <td>European Roma Rights Centre (ERRC) v. Bulgaria</td>
    <td>Fact finding</td>
  </tr>
  <tr>
    <td>121/2016</td>
    <td>16/10/2018</td>
    <td>Equal Rights Trust v. Bulgaria</td>
    <td>Fact finding</td>
  </tr>
  <tr>
    <td>154/2017</td>
    <td>18/10/2018</td>
    <td>Confédération générale du travail (CGT) v. France</td>
    <td>CJEU</td>
  </tr>
  <tr>
    <td>123/2016</td>
    <td>12/09/2018</td>
    <td>Irish Congress of Trade Unions (ICTU) v. Ireland</td>
    <td>CJEU</td>
  </tr>
  <tr>
    <td>118/2015</td>
    <td>03/07/2018</td>
    <td>Confédération Générale du Travail Force Ouvrière (FO) v. France</td>
    <td>CJEU</td>
  </tr>
  <tr>
    <td>113/2014</td>
    <td>24/01/2018</td>
    <td>Unione Italiana del Lavoro U.I.L. Scuola-Sicilia v. Italy</td>
    <td>Mentioned</td>
  </tr>
  <tr>
    <td>114/2015</td>
    <td>24/01/2018</td>
    <td>EUROCEF v. France</td>
    <td>Mentioned</td>
  </tr>
  <tr>
    <td>119/2015</td>
    <td>05/12/2017</td>
    <td>European Roma and Travellers Forum (ERTF) v. France</td>
    <td>Mentioned</td>
  </tr>
  <tr>
    <td>111/2014</td>
    <td>23/03/2017</td>
    <td>Greek General Confederation of Labour (GSEE) v. Greece</td>
    <td>Discussed</td>
  </tr>
  <tr>
    <td>105/2014</td>
    <td>18/10/2016</td>
    <td>Associazione sindacale «La Voce dei Giusti» v. Italy</td>
    <td>Mentioned</td>
  </tr>
  <tr>
    <td>102/2013</td>
    <td>05/07/2016</td>
    <td>Associazione Nazionale Giudici di Pace v. Italy</td>
    <td>CJEU</td>
  </tr>
  <tr>
    <td>104/2014</td>
    <td>17/05/2016</td>
    <td>European Roma and Travellers Forum (ERTF) v. the Czech Republic</td>
    <td>Fact finding</td>
  </tr>
  <tr>
    <td>91/2013</td>
    <td>12/10/2015</td>
    <td>Confederazione Generale Italiana del Lavoro (CGIL) v. Italy</td>
    <td>Discussed</td>
  </tr>
  <tr>
    <td>99/2013</td>
    <td>17/03/2015</td>
    <td>Federation of Catholic Families in Europe (FAFCE) v. Sweden</td>
    <td>Mentioned</td>
  </tr>
  <tr>
    <td>89/2013</td>
    <td>12/09/2014</td>
    <td>Federation of Catholic Family Associations in Europe (FAFCE) v. Ireland</td>
    <td>Mentioned</td>
  </tr>
  <tr>
    <td>88/2012</td>
    <td>09/09/2014</td>
    <td>Finnish Society of Social Rights v. Finland</td>
    <td>Mentioned</td>
  </tr>
  <tr>
    <td>90/2013</td>
    <td>01/07/2014</td>
    <td>Conference of European Churches (CEC) v. the Netherlands</td>
    <td>CJEU</td>
  </tr>
  <tr>
    <td>86/2012</td>
    <td>02/07/2014</td>
    <td>FEANTSA v. the Netherlands</td>
    <td>CJEU</td>
  </tr>
  <tr>
    <td>87/2012</td>
    <td>10/09/2013</td>
    <td>International Planned Parenthood Federation – European Network (IPPF EN)</td>
    <td>Mentioned</td>
  </tr>
  <tr>
    <td>85/2012</td>
    <td>03/07/2013</td>
    <td>Swedish Trade Union Confederation (LO) and TCO v. Sweden</td>
    <td>CJEU</td>
  </tr>
  <tr>
    <td>81/2012</td>
    <td>11/09/2013</td>
    <td>European Action of the Disabled (AEH) v. France</td>
    <td>CJEU</td>
  </tr>
  <tr>
    <td>74/2011</td>
    <td>02/07/2013</td>
    <td>Fellesforbundet for Sjofolk (FFFS) v. Norway</td>
    <td>CJEU</td>
  </tr>
  <tr>
    <td>75/2011</td>
    <td>18/03/2013</td>
    <td>International Federation for Human Rights (FIDH) v. Belgium</td>
    <td>Mentioned</td>
  </tr>
  <tr>
    <td>72/2011</td>
    <td>23/01/2013</td>
    <td>International Federation for Human Rights (FIDH) v. Greece</td>
    <td>CJEU</td>
  </tr>
  <tr>
    <td>76/2012</td>
    <td>07/12/2012</td>
    <td>Federation of employed pensioners of Greece (IKA-ETAM) v Greece</td>
    <td>Discussed</td>
  </tr>
  <tr>
    <td>78/2012</td>
    <td>07/12/2012</td>
    <td>Pensioners' Union of the Athens-Piraeus Electric Railways (I.S.A.P.) v. Greece</td>
    <td>Discussed</td>
  </tr>
  <tr>
    <td>79/2012</td>
    <td>07/12/2012</td>
    <td>Panhellenic Federation of pensioners of the Public Electricity Corporation v. Greece</td>
    <td>Discussed</td>
  </tr>
  <tr>
    <td>77/2012</td>
    <td>07/12/2012</td>
    <td>Panhellenic Federation of Public Service Pensioners (POPS) v. Greece</td>
    <td>Discussed</td>
  </tr>
  <tr>
    <td>80/2012</td>
    <td>07/12/2012</td>
    <td>Pensioners' Union of the Agricultural Bank of Greece (ATE) v. Greece</td>
    <td>Discussed</td>
  </tr>
  <tr>
    <td>67/2011</td>
    <td>11/09/2012</td>
    <td>Médecins du Monde – International v. France</td>
    <td>Discussed</td>
  </tr>
  <tr>
    <td>73/2011</td>
    <td>12/09/2012</td>
    <td>Syndicat de défense des fonctionnaires v. France</td>
    <td>Discussed</td>
  </tr>
  <tr>
    <td>66/2011</td>
    <td>23/05/2012</td>
    <td>GENOP-DEI and ADEDY v. Greece</td>
    <td>Mentioned</td>
  </tr>
  <tr>
    <td>65/2011</td>
    <td>23/05/2012</td>
    <td>GENOP-DEI and ADEDY v. Greece</td>
    <td>Mentioned</td>
  </tr>
  <tr>
    <td>62/2010</td>
    <td>21/03/2012</td>
    <td>International Federation of Human Rights (FIDH) v. Belgium</td>
    <td>Fact finding</td>
  </tr>
  <tr>
    <td>64/2011</td>
    <td>24/01/2012</td>
    <td>European Roma and Travellers Forum v. France</td>
    <td>Discussed</td>
  </tr>
  <tr>
    <td>63/2010</td>
    <td>28/06/2011</td>
    <td>Centre on Housing Rights and Evictions (COHRE) v. France</td>
    <td>Mentioned</td>
  </tr>
  <tr>
    <td>56/2009</td>
    <td>23/06/2010</td>
    <td>Confédération française de l'Encadrement CFE-CGC v. France</td>
    <td>Discussed</td>
  </tr>
  <tr>
    <td>55/2009</td>
    <td>23/06/2010</td>
    <td>Confédération générale du travail (CGT) v. France</td>
    <td>Discussed</td>
  </tr>
  <tr>
    <td>58/2009</td>
    <td>25/06/2010</td>
    <td>Centre on Housing Rights and Evictions (COHRE) v. Italy</td>
    <td>CJEU</td>
  </tr>
</table>
<table><tr><td>47/2008</td><td>20/10/2009</td><td>Defence for Children International (DCI) v the Netherlands</td><td>Mentioned</td></tr><tr><td>49/2008</td><td>11/12/2009</td><td>International Centre for the Legal Protection of Human Rights (INTERIGHTS)</td><td>Fact finding</td></tr><tr><td>51/2008</td><td>19/10/2009</td><td>European Roma Rights Centre (ERRC) v. France</td><td>Mentioned</td></tr><tr><td>50/2008</td><td>09/09/2009</td><td>Confédération Française Démocratique du Travail (CFDT) v France</td><td>Mentioned</td></tr><tr><td>46/2007</td><td>03/12/2008</td><td>European Roma Rights Centre (ERRC) v. Bulgaria</td><td>Mentioned</td></tr><tr><td>30/2005</td><td>06/12/2006</td><td>Marangopoulos Foundation for Human Rights (MFHR) v Greece</td><td>CJEU</td></tr></table>

## II. CONFLICTS AND TENSIONS

The situation presented in the previous section provides a picture of the limited influence and recognition between the two legal orders. Lacking any coordination mechanism and in light of their coexistence in the same geographical space and the overlapping of their members, the emergence of differences between the two systems is always a concrete possibility. In more recent years, this has led to more open tensions between the two sets of standards: the abovementioned 2014 Working Document published by the ECSR speaks of “divergences between the two systems”<fnref n="51" />, while the 2014 Report of the Secretary General of the Council of Europe on the State of Democracy Human Rights and the Rule of Law in Europe expresses the need to find solutions “to conflicts between the two sets of standards”<fnref n="52" />. Notably, these conflicts have arisen in the context of (A) the case law of the CJEU concerning the relationship between so-called fundamental freedoms of the EU internal market and fundamental social rights<fnref n="53" /> and (B) the reforms demanded of Greece by EU institutions (the European Commission and the European Central Bank) in the context of austerity policies.

### A. THE INTERNAL MARKET V SOCIAL RIGHTS

The first of these conflicts stems from the CJEU's decision in the infamous *Laval* case. This decision has been the object of immense attention from academics<fnref n="54" />, so we will provide only a very short summary here, focusing on the issues that are relevant to the topic at hand. The case arose in the context of construction works carried out in Sweden by a Latvian service provider (Laval). The company in question employed its own workers, who were, therefore, sent to Sweden, a situation regulated by the EU Posting of Workers Directive<fnref n="55" />. Under this Directive, posted workers remain covered by the labour regulations of the home State (in this case, Latvia), apart from a list of minimum provisions<fnref n="56" /> of the host State (in this case, Sweden), which are applicable to them as long as they are established through legislation, universally applicable collective agreements or generally applicable ones<fnref n="57" />. Having learned that working conditions (among these, rates of pay) applied by Laval were inferior to those contained in Swedish collective agreements, several trade unions started a blockade of the building site, which, due to the unwillingness of the employer to sign a collective agreement in line with Swedish standards, ultimately led to the bankruptcy of the construction company. In the ensuing legal dispute, the CJEU found the collective action carried out by the Swedish trade union to be a restriction of the freedom to provide services, as it was “liable to make it less attractive,

<footnote n="51">⁵¹ ECSR, “The relationship [...]”, cit., p. 2.</footnote>

<footnote n="52">⁵² The Report can be retrieved at: https://edoc.coe.int/en/fundamental-freedoms/5949-state-of-democracy-human-rights-and-the-rule-of-law-in-europe.html.</footnote>

<footnote n="53">⁵³ In particular, the *Laval* decision: CJEU [GC], 18 December 2007, *Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundetsavdelning 1, Byggettan and Svenska Elektrikerförbundet*, C-341/05.</footnote>

<footnote n="54">⁵⁴ It is impossible to provide even a glimpse of such academic debate. For the sake of brevity, we refer to comprehensive list of the “first wave” (2007-2009) of these commentaries compiled by the European Trade Union and at: http://www.etui.org/Topics/Social-dialogue-collective-bargaining/Social-legislation/The-interpretation-by-the-European-Court-of-Justice/Reaction-to-the-judgements/Articles-in-academic-literature-on-the-judgements,</footnote>

<footnote n="55">⁵⁵ Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services.</footnote>

<footnote n="56">⁵⁶ *Ibid.*, Article 3 § 1.</footnote>

<footnote n="57">⁵⁷ *Ibid.*, Article 3 § 1 and § 8.</footnote>
or more difficult, (...) to carry out construction work in Sweden”<fnref n="58" />. It also concluded that this restriction could not be justified, as the conditions included in the collective agreement proposed to Laval by the Swedish trade union went above the minima required by the Posting of Workers Directive<fnref n="59" />. In the same decision, the CJEU also recognised the fundamental nature of the right to take collective action, mentioning, among other instruments, the ESC as a source of inspiration for this finding<fnref n="60" />. This, however, did not warrant any deviation from the standard reasoning developed by the CJEU when addressing restrictions to the freedoms of the internal market<fnref n="61" />. This reasoning entails the application of a proportionality test to the exercise of the said fundamental right, aimed at considering a) whether such an exercise is justified by imperative reasons relating to public interests, b) whether the restriction is necessary for the exercise of the fundamental right and, finally, c) whether such a restriction does not go beyond what is necessary to guarantee the imperative reason at stake<fnref n="62" />.

The ECSR had the occasion to analyse, albeit indirectly<fnref n="63" />, the stance delivered by the CJEU in *Laval* following a collective complaint introduced by several Swedish trade unions<fnref n="64" />. In this context, the Swedish government mentioned its obligation to implement EU law and the decisions of the CJEU<fnref n="65" />, prompting the ECSR to restate its stance concerning the relationship with EU law<fnref n="66" />. As a reminder, such a stance entails the absence of any presumption of conformity with the ESC of acts taken by Member States to implement EU law (including the decisions adopted by the CJEU). However, though the ESCR affirms that it is only concerned with the analysis of national law and its compatibility with the ESC, the decision reads as a critique of the case law of the CJEU. Indeed, on all the substantive points, the ECSR completely reversed the logic of the approach taken in *Laval* by affirming that restrictions on the right to collective action should be scrutinised through the test set out in Article G of the ESC<fnref n="67" />. The Committee also underlined that “the facilitation of free cross-border movement of services and the promotion of the freedom of an employer or undertaking to provide services in the territory of other States – which constitute important and valuable economic freedoms within the framework of EU law – cannot be treated, from the point of view of the system of values, principles and fundamental rights embodied in the Charter, as having a greater a priori value than core labour rights, including the right to make use of collective action to demand further and better protection of the economic and social rights and interests of workers”<fnref n="68" />.

The conflict between the ESC system and the CJEU case law also went beyond the issue of the right to take collective action. Notably, the Committee was also asked to consider the issue arising from the Laval decision under Article 19§4. This Article requires the signatory parties to ensure the equal treatment (in a number of fields) of “workers lawfully within their territories”. The matters covered by this obligation include “remuneration and other employment and working conditions” and “membership of trade unions and enjoyment of the benefits of collective bargaining”. As recalled by Świątkowski<fnref n="69" />, the provision was

<footnote n="58">⁵⁸ CJEU, *Laval*, cit., § 99.</footnote>

<footnote n="59">⁵⁹ *Ibid*., § 80.</footnote>

<footnote n="60">⁶⁰ *Ibid*., § 90.</footnote>

<footnote n="61">⁶¹ CJEU, 25 July 1991, *Criminal proceedings against Manfred Säger and Dennemeyer & Co. Ltd.*, C-76/90.</footnote>

<footnote n="62">⁶² Cf. Catherine BARNARD, "Employment Rights, Free Movement under the EC treaty and the Services Directive", *Europa Institute Working Paper*, vol. 5, 2008, pp. 4-5.</footnote>

<footnote n="63">⁶³ The ECSR decision deals with the Swedish law aimed at bringing the national system in line with the decision of the Court of Justice (cf. Kerstin AHLBERG, "Will Lex Laval Work?", *Nordic Labour Journal*, 2 November 2010.</footnote>

<footnote n="64">⁶⁴ ECSR, *LO and TCO v Sweden, cit.*; cf. Sylvaine LAULOM, “Le comité européen des droits sociaux condamne la jurisprudence Laval”, *Semaine sociale Lamy*, No. 1616, 2014, pp. 5-7; Marco ROCCA, “A Clash of Kings – The European Committee on Social Rights on the 'Lex Laval'… and on the EU Framework for Posting of Workers”, *European Journal of Social Law*, vol. 3, 2013, pp. 217-232.</footnote>

<footnote n="65">⁶⁵ ECSR, *Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v. Sweden*, Document No. 2, Submissions of the Government on Admissibility and Merits, p. 3: “the Swedish government would like to stress that the legislative changes were considered necessary in order for the Swedish legislation to comply with EU law on freedom to provide services and non-discrimination, as interpreted by the ECJ in the Laval case”.</footnote>

<footnote n="66">⁶⁶ Cf. *supra*, Section II.B. Cf. Sylvaine LAULOM, “Le Comité européen des droits sociaux, artisan de la réalisation des droits sociaux. Le point de vue externe”, in, Florence BENOIT-ROHMER, Nicolas MOIZARD, Mélanie SCHMITT (eds.), *Renverser la perspective: les droits sociaux comme remèdes aux crises européennes!* (Conference proceedings), 2017, pp. 90-91, https://journals.openedition.org/revdh/3672?file=1.</footnote>

<footnote n="67">⁶⁷ ECSR, *Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v. Sweden, cit.*, 3, § 121.</footnote>

<footnote n="68">⁶⁸ *Ibid*., § 122; Carole NIVARD, “Le comité européen des droits sociaux, gardien de l’état social en Europe?”, *Civitas Europa*, vol. 33, 2014, pp. 104-106.</footnote>

<footnote n="69">⁶⁹ Andrzej Marian ŚWIĄTKOWSKI, *Charter of Social Rights of the Council of Europe*, Alphen aan den Rijn, Kluwer Law International, 2007, p. 348.</footnote>
inspired by Article 6§1 of International Labour Organization (ILO) Convention No. 97 (Migration for Employment Convention) of 1949. Like Article 19§4 of the ESC, this provision makes reference to immigrants “lawfully within” the territory of the signatory party. On this basis, the ESCR included the situation of posted workers under the definition of migrant workers and, therefore, under the scope of application of Article 19§4⁷⁰. It thus follows that posted workers have the right “to receive treatment not less favourable than that of the national workers of the host State in respect of remuneration, other employment and working conditions, and enjoyment of the benefits of collective bargaining”<fnref n="71" />. Furthermore, the ECSR found the limitations to the right to take collective action introduced by the application of the CJEU case law to constitute obstacles to the implementation of equal treatment<fnref n="72" />.

The application of the principle of equal treatment to posted workers marked a major deviation from the EU legal framework. Indeed, from the very first cases on the posting of workers, *Webb*<fnref n="73" />, *Seco*<fnref n="74" /> and the well-known *Rush Portuguesa*<fnref n="75" />, the CJEU had always analysed the posting of workers through the lens of the freedom to provide services. Posted workers have thus been explicitly considered by the CJEU as not being migrant workers, on the assumption of their lack of access to the labour market of the host State<fnref n="76" />, and, hence, as excluded from the application of the principle of equal treatment<fnref n="77" />.

B. AUSTERITY POLICIES V. SOCIAL RIGHTS

In the years since the Euro crisis began, the concept of the “austerity” has become even more familiar than the CJEU’s decision in *Laval*. This concept covers a mix of policies, including cuts in public spending, privatisations, labour market de-regulation and wage moderation (or outright reduction)<fnref n="78" />. The choice in favour of the austerity cure was dictated by a diagnosis of the crisis which saw “fiscal profligacy” (public expenditure, public debts) and/or excessive labour costs in the “periphery” as the cause of the crisis<fnref n="79" />. As is well known, Greece was the European epicentre of these policies. In particular, Greece was among the EU Member States that had to request financial support during the crisis and had to sign several Memoranda of Understanding (MoU). The first of these laid down the conditions for obtaining financial help in the form of loans, under the scrutiny of the so-called Troika, formed by the EU Commission, the ECB and the International Monetary Fund. The three subsequent MoUs signed by Greece included a long list of reforms in the field of social rights, which is beyond the scope of the present chapter<fnref n="80" />.

Against this background, several Greek trade unions introduced complaints in front of the ECSR, lamenting the violation of the ESC resulting from measures enacted in application of the MoUs. These complaints were aimed in particular at a new “special apprenticeship contract”<fnref n="81" />, the introduction of compensation-

<footnote n="70">⁷⁰ ECSR, *Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v. Sweden, cit.*, § 134.</footnote>

<footnote n="71">⁷¹ *Ibid.*, § 134.</footnote>

<footnote n="72">⁷² *Ibid.*, § 135.</footnote>

<footnote n="73">⁷³ CJEU, 17 December 1981, *Criminal proceedings against Alfred John Webb*, 279/80.</footnote>

<footnote n="74">⁷⁴ CJEU, 3 February 1982, *Société anonyme de droit français Seco and Société anonyme de droit français Desquenne & Giral v Etablissement d'assurance contre la vieillesse et l'invalidité*, 62/81, 63/81.</footnote>

<footnote n="75">⁷⁵ CJEU, 27 March 1990, *Rush Portuguesa Lda v Office national d'immigration*, C-113/89.</footnote>

<footnote n="76">⁷⁶ *Ibid*, § 15. Cf. Erik SJÖDIN, “Labour market Regulation as Restrictions. A Developmental Study of ECJ Case Law at the Interface between Free Movement and Posting of Workers”, in Stein EVJU (ed.), *Cross-Border Services, Posting of Workers, and Multilevel Governance*, Oslo, University of Oslo, 2013, pp. 19-84.</footnote>

<footnote n="77">⁷⁷ It is otherwise applicable to migrant workers from one EU Member State to another, under Article 45 TFEU.</footnote>

<footnote n="78">⁷⁸ As regards the public sector and the general minimum wage in Greece, cf. Christina KARAKIOULAFIS, “Grèce: Les syndicats dans la ligne de mire de la Troika”, *Chronique internationale de l'IRES*, vol. 143-144, 2013, pp. 121-132.</footnote>

<footnote n="79">⁷⁹ Cf. in general Mark BLYTH, *Austerity: The History of a Dangerous Idea*, Oxford, OUP, 2013; Christophe DEGRYSE, Maria JEPSEN, Philippe POCHET, “The Euro Crisis and its Impact on National and European Social Policies”, *ETUI Working Paper*, vol. 5, 2013, p. 14, at http://www.etui.org/Publications2/Working-Papers/The-Euro-crisis-and-its-impact-on-national-and-European-social-policies.</footnote>

<footnote n="80">⁸⁰ For a more thorough analysis, Effie ACHTSIOGLOU, “Greece 2010-2012: Labour in the Maelstrom Of Deregulation”, *Transfer: European Review of Labour and Research*, vol. 19, 2013, pp. 125-127; Christina KARAKIOULAFI, “Grèce: Les syndicats dans la ligne de mire de la troika”, *cit*.; Aristea KOUKIADAKI, Lefteris KRETSOS, “Grèce/Greece”, in Marie-Cécile ESCANDE VARNIOL, Sylvaine LAULOM, Emmanuelle MAZUYER, Pascale VIELLE (eds.), *Quel droit social dans une Europe en crise?*, Brussels, Larcier, 2012, pp. 189-231; Effie ACHTSIOGLOU, Michael DOHERTY, “There Must Be Some Way Out of Here: The Crisis, Labour Rights and Member States in the Eye of the Storm”, *European Law Journal*, vol. 20, no. 2, 2014, pp. 219-240.</footnote>

<footnote n="81">⁸¹ Law 3863/2010 introduced the possibility to conclude “special apprenticeship contracts” of up to one year's duration with persons between 15 and 18 years of age. These contracts were characterised by several exceptions from the application of minimum</footnote>
free dismissal during a 1-year trial period<fnref n="82" /> and pension reforms<fnref n="83" />. In all these decisions, the ECSR found the austerity measures adopted by the Greek government to be incompatible with the ESC. Concerning the first, the ECSR concluded that the “special apprenticeship contracts” breached Article 4§1 (the right to a fair remuneration) inasmuch as they allow minimum wages to be below the poverty line<fnref n="84" />. By not providing the minimum level of three weeks of annual paid leave, these contracts also violated Article 7§7 (the right of young persons to protection)<fnref n="85" />. Furthermore, the legal framework for these contracts did not mandate any form of training and was hence considered by the ECSR as violating Article 10§2 (the right to vocational training for boys and girls)<fnref n="86" />. Finally, the special apprenticeship contracts only included very limited access to social security benefits, a situation which, in the words of the ECSR, had “the practical effect of establishing a distinct category of workers who are effectively excluded from the general range of protection offered by the social security system at large”, and, hence, violated Article 12§3 (right to social security)<fnref n="87" />.Concerning the second item, that is, the possibility dismissal without notice and/or compensation during the first 12 months of an open-ended contract, the ECSR found a violation of Article 4§4⁸⁸, which provides for the right of all workers to a reasonable period of notice. In particular, the ECSR stressed that the concept of “all workers” includes those on a trial period, while also noting *a contrario* that the application of immediate dismissal could only be accepted in cases of serious misconduct<fnref n="89" />. With regard to the complaints regarding the reforms to the retirement system, the ECSR considered that the Greek measures violated Article 12§3⁹⁰. However, in these decisions, the ECSR took a more nuanced stance, opting for a more “procedural” critique<fnref n="91" />. The ECSR found that the cumulative effect of the measures at stake was “bound to bring about a significant degradation of the standard of living and the living conditions of many of the pensioners concerned”<fnref n="92" />. However, it criticised, in particular, the lack of assessment and analysis of the impact of these measures, the absence of discussion with the organisations concerned and the disregard for other possible measures which could have limited the said cumulative impact<fnref n="93" />.

In all these complaints, the Greek government tried to defend itself by mentioning the obligations contained in the MoUs. However, although the ECSR recognised the difficult situation of the Greek government<fnref n="94" />, it nonetheless considered the adopted measures to be in violation of the ESC. In the decisions concerning the reform of the retirement system, the ECSR was clear in this regard, affirming that “the fact that the contested provisions of domestic law seek to fulfil the requirements of other legal obligations does not remove them from the ambit of the Charter”<fnref n="95" />, since “when states parties agree on binding measures, which relate to matters within the remit of the Charter, they should – both when preparing the text in question and when implementing it into national law – take full account of the commitments they have taken upon ratifying the European Social Charter”<fnref n="96" />. Therefore, the ECSR reversed the perspective by insisting on the

<footnote>wages and working conditions (ECSR, *General Federation of employees of the national electric power corporation (GENOP-DEI) and Confederation of Greek Civil Servants' Trade Unions (ADEDY)* v. Greece, complaint No. 66/2011, decision on the merits of 23 May 2012).</footnote>

<footnote n="82">⁸² Law 3863/2010 introduced a “trial period” of 12 months, during which the employee has no right to compensation in case of dismissal. ECSR, *General Federation of employees of the national electric power corporation (GENOP-DEI) and Confederation of Greek Civil Servants' Trade Unions (ADEDY)* v. Greece, complaint No. 65/2011, decision on the merits of 23 May 2012.</footnote>

<footnote n="83">⁸³ ECSR, *Pensioner's Union of the Agricultural Bank of Greece (ATE) vs. Greece*, complaint No. 80/2012, decision on the merits of 7 December 2012; ECSR, *Panhellenic Federation of Pensioners of the Public Electricity Corporation (POS-DEI) vs. Greece*, complaint No. 79/2012, decision on the merits of 7 December 2012; ECSR, *Pensioners' Union of the Athens-Piraeus Electric Railways (I.S.A.P.) vs. Greece*, complaint No. 78/2012, decision on the merits of 7 December 2012; ECSR, *Panhellenic Federation of Public Service Pensioners vs. Greece*, complaint No. 77/2012, decision on the merits of 7 December 2012; ECSR, *Federation of Employed Pensioners of Greece (IKA-ETAM) vs. Greece*, complaint No. 76/2012, decision on the merits of 7 December 2012.</footnote>

<footnote n="84">⁸⁴ ECSR, *General Federation of employees of the national electric power corporation (GENOP-DEI) and Confederation of Greek Civil Servants' Trade Unions (ADEDY) v. Greece* (No. 65/2011), cit., § 60.</footnote>

<footnote n="85">⁸⁵ ECSR, *GENOP-DEI and ADEDY v. Greece* (No. 65/2011), cit., § 31.</footnote>

<footnote n="86">⁸⁶ Ibid., §§ 38-40.</footnote>

<footnote n="87">⁸⁷ Ibid., § 48.</footnote>

<footnote n="88">⁸⁸ The right to a fair remuneration.</footnote>

<footnote n="89">⁸⁹ ECSR, *GENOP-DEI and ADEDY v. Greece (No. 65/2011)*, cit., § 25-27.</footnote>

<footnote n="90">⁹⁰ The right to social security.</footnote>

<footnote n="91">⁹¹ Cf. Isabelle HACHEZ, “Le Comité européen des droits sociaux confronté à la crise financière grecque: des décisions osées mais inégalement motivées”, *Revue de Droit Social*, vol. 3, 2014, pp. 249-279; Jean-Pierre MARGUÉNAUD, Jean MOULY, “Le comité européen des droits sociaux face au principe de non-régression en temps de crise économique”, *Droit Social*, 2013, pp. 339-344.</footnote>

<footnote n="92">⁹² ECSR, *Panhellenic Federation of Public Service Pensioners vs. Greece*, cit., § 74; ECSR, *IKA-ETAM v Greece*, cit., § 78.</footnote>

<footnote n="93">⁹³ Ibid. (*Panhellenic Federation*) §§ 75-77; IKA-ETAM, §§ 79-81.</footnote>

<footnote n="94">⁹⁴ Ibid. (*Panhellenic Federation*) §§ 71, 75; IKA-ETAM, §§ 75, 79.</footnote>

<footnote n="95">⁹⁵ Ibid. (*Panhellenic Federation*) §§ 46-47; IKA-ETAM, §§ 50-51.</footnote>

<footnote n="96">⁹⁶ Ibid. (*Panhellenic Federation*) §§ 46-47; IKA-ETAM, §§ 50-51.</footnote>
obligation of the Greek government to respect the ESC when negotiating its international commitments. Interestingly, the ECSR also sidestepped the thorny issue of the legal nature of MoUs by considering them as essentially “binding measures”, as argued by the Greek government. Furthermore, the ECSR added that “it is ultimately for the Committee to assess compliance of a national situation with the Charter, including when the implementation of the parallel international obligations into domestic law may interfere with the proper implementation of those emanating from the Charter”. In this sense, it is important to refer to the findings of the high-level mission to Greece, which was put in place by the ILO after the enactment of the first round of austerity measures. In this report, representatives of the European Commission reaffirmed that “the policy choices were always made by the Greek Government”<fnref n="97" /> and that the Commission exerted no “pressure to violate ratified international labour Conventions”<fnref n="98" />. If these statements rang rather hollow in light of successive events, which called into question the real room for manoeuvre of the Greek government, they also confirmed the approach of the ECSR, which was to examine the national implementation of measures “negotiated” with EU institutions without providing any presumption of conformity with ESC standards.

Though formally aimed at the national government, the decisions of the ECSR read as an indirect critique of the EU institutions composing the Troika. Indeed, they were picked up in this sense by two reports adopted by the European Parliaments on 13 March 2014: one entitled “Employment and social aspects of the role and operations of the Troika”<fnref n="99" /> and the other entitled “Role and operations of the Troika with regard to the euro area programme countries”<fnref n="100" />. Both reports mention the ESC, and both do so by affirming that, on the basis of Article 151 TFEU, “action taken by the EU and its Member States must be consistent with the fundamental social rights laid down in the 1961 European Social Charter”. What is more, the report on employment and social aspects of the role and operations of the Troika mentions the condemnations highlighted in Section 2¹⁰¹ and refers to the necessity to restore respect for international obligations stemming from the ESC<fnref n="102" />. The report on the role and operations of the Troika with regard to the euro area programme countries confirmed the idea that MoUs are situated outside the scope of EU law by expressing regret “that the programmes are not bound by the Charter of Fundamental Rights of the European Union, the European Convention of Human Rights and the European Social Charter, due to the fact that they are not based on Union primary law”. In this sense, the outcome of the complaints raised in front of the ECSR has provided further political arguments to those who criticise the management of the crisis by EU institutions.

## CONCLUDING REMARKS

The analysis we present in the previous pages confirms the difficulties in the relationship between the two legal orders. On the EU side, the stance of disregard for the ESC, let alone for the decisions of the ECSR, is confirmed by both the panoramic view of the CJEU case law and the more in-depth case studies dealing with specific tensions. On the ESC side, this very situation only confirms and reinforces the appropriateness of the ECSR approach to the relationship with the EU, that is, the refusal to grant any presumption of conformity with the ESC of national legislation adopted to comply with EU law. The link between the two has been explicitly mentioned in the Opinion of the Secretary General of the Council of Europe on the

<footnote n="97">⁹⁷ ILO, Report on the High-Level Mission to Greece (Athens, 19-23 September 2011), § 275.</footnote>

<footnote n="98">⁹⁸ Ibid.</footnote>

<footnote n="99">⁹⁹ European Parliament resolution of 13 March 2014 on Employment and social aspects of the role and operations of the Troika (ECB, Commission and IMF) with regard to euro area programme countries, 2014/2007(INI).</footnote>

<footnote n="100">¹⁰⁰ European Parliament resolution of 13 March 2014 on the enquiry on the role and operations of the Troika (ECB, Commission and IMF) with regard to the euro area programme countries, 2013/2277(INI).</footnote>

<footnote n="101">¹⁰¹ “The Council of Europe has already condemned the cuts in the Greek public pension system, considering them to be a violation of Article 12 of the 1961 European Social Charter and of Article 4 of the Protocol thereto, stating that ‘the fact that the contested provisions of domestic law seek to fulfil the requirements of other legal obligations does not remove them from the ambit of the Charter’”; “notes that the ILO Expert Committee has requested that the social dialogue be re-established”.</footnote>

<footnote n="102">¹⁰² “Calls on the Troika and the Member States concerned to end the programmes as soon as possible and to put in place crisis management mechanisms enabling all EU institutions, including Parliament, to achieve the social goals and policies – also those relating to the individual and collective rights of those at greatest risk of social exclusion – set out in the Treaties, in European social partner agreements and in other international obligations (ILO Conventions, the European Social Charter and the European Convention of Human Rights)”.</footnote>
European Union initiative to establish a European Pillar of Social Rights<fnref n="103" />.Therefore, to conclude this chapter, it is worth considering two instruments that have been put forward as possible solutions to this situation.

As explained in Section II of this chapter, Article 53 of the EUCFR seems to provide a legal pathway to integrate the standard of protection provided by the ESC into EU law, thus avoiding the issue of the legal value of an autonomous legal order for the reasoning of the CJEU. Indeed, the formulation deployed in the *Kiiski* decision<fnref n="104" />, as well as in the Preamble of the European Pillar of Social Rights, pleads in favour of the inclusion of (at least) the 1961 ESC among the “international agreements to which all Member States are party”.

That being said, two elements should temper an optimistic reading of this possibility. First, the CJEU has famously interpreted Article 53 EUCFR to mean that the application of higher standards of protection of fundamental rights, based on national or international sources, cannot compromise the “primacy, unity and effectiveness of EU law”<fnref n="105" />. Considering, in particular, how the first of the case studies presented in Section III stems from a tension relating to a fundamental freedom of the EU internal market, such an interpretation might pose an insurmountable obstacle to revisiting the *Laval* line of cases in light of the higher standards of protection for fundamental social rights provided by the ESC.

The second element is that of timing and missed opportunities. It will not have escaped the attentive reader that the decision in *Kiiski* (20 September 2007) predates the one in *Laval* (18 December 2007). Thus, in the latter decision, the CJEU had already had the opportunity to uphold the standards of the ESC through Article 53 EUCFR, particularly considering that the instrument is mentioned among those which inspire the recognition of the fundamental nature of the right to take collective action<fnref n="106" />. This would not have required a change of stance concerning the relevance and legal value of the interpretation delivered by the ECSR. The simple text of the ESC, particularly Article 31 (Article G of the Revised ESC), would have suggested an analysis of the proportionality of the restrictions imposed on the fundamental right to take collective action, an exercise in which the CJEU famously did not engage. A few years later, AG Trstenjak, in her Opinion in *Commission v Germany*<fnref n="107" />, proposed that the CJEU engage in such a double proportionality test in order to assess, at the same time, the restrictions to both the fundamental freedoms of the internal market and fundamental social rights. The CJEU did not follow her advice<fnref n="108" />. Finally, this time after the adoption of the ECSR decision in *Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v Sweden*, the CJEU once again unflinchingly confirmed the validity of the *Laval* precedent in the *Fonnship* decision<fnref n="109" />. Therefore, while keeping in mind that a change of approach is always possible, the conclusion on the basis of the present situation is that the CJEU is not willing to consider, let alone engage with, the ESC in any meaningful way. An exception to this, emerging from our review presented in Section II, might be the occasional consideration given by the Civil Service Tribunal.

Faced with such a barred way when it comes to the judicial path, calls have been made for the accession of the EU to the ESC. This has already been put forward by researchers<fnref n="110" /> and taken up by the European

<footnote n="103">¹⁰³ Strasbourg, 2 December 2016, §§ 24-25.</footnote>

<footnote n="104">¹⁰⁴ CJEU, 20 September 2007, *Sari Kiiski v Tampereen kaupunki*, C-116/06, § 48.</footnote>

<footnote n="105">¹⁰⁵ Opinion 2/13, §§ 188-189. The same point, though, only with reference to a national constitutional source, was already present in CJEU, 26 February 2013, *Stefano Melloni v Ministerio Fiscal*, C-399/11, § 60. Cf. on this interpretation Bruno DE WITTE, “Article 53”, cit., p. 1533; Aida TORRES PÉREZ, “Constitutional Dialogue on the European Arrest Warrant: The Spanish Constitutional Court Knocking on Luxembourg’s Door”, *European Constitutional Law Review*, vol. 8, 2012, pp. 105-127.</footnote>

<footnote n="106">¹⁰⁶ CJEU, *Laval*, cit., § 90.</footnote>

<footnote n="107">¹⁰⁷ Opinion of AG Verica TRSTENJAK, §§ 192, 199 in CJEU [GC], 15 July 2010, *European Commission v Federal Republic of Germany*, C-271/08.</footnote>

<footnote n="108">¹⁰⁸ Cf. on this decision Phil SYRPIS, “Reconciling economic freedoms and social rights – The Potential of Commission v. Germany”, *Industrial Law Journal*, vol. 40, no. 2, 2011, pp. 222–229.</footnote>

<footnote n="109">¹⁰⁹ CJEU [GC], 8 July 2014, *Fonnship A/S v Svenska Transportarbetareförbundet, Facketför Service och Kommunikation (SEKO)*, Case C-83/13, § 41: “In that case, any restriction which, without objective justification, is liable to prohibit, impede or render less attractive the provision of those services must be declared incompatible with EU law. Where it is applicable, Regulation No 4055/86 transposes, in essence, the rules of the treaty relating to the freedom to provide services and the case-law relating thereto [...]. That case-law includes the judgment in *Laval* un Partneri relating to the compatibility of industrial action with the freedom to provide services”.</footnote>

<footnote n="110">¹¹⁰ Olivier DE SCHUTTER, “L’adhésion de l’Union européenne”, cit.</footnote>
Parliament<fnref n="111" />. Olivier De Schutter analyses this possibility in his thorough study for the Committee on Constitutional Affairs of the European Parliament<fnref n="112" />. As we mentioned in the introduction, it is impossible to assess the likelihood of this evolution in the future. The previous failure of EU accession to the ECHR – that one supported by a Treaty obligation<fnref n="113" /> – set a discouraging precedent. The abovementioned study proposes circumnavigating the obstacle posed by Opinion 2/13 by ensuring “that any rule of the European Social Charter that could result in creating obstacles to the ability for the EU Member States to pursue the process of integration within the EU should be disregarded”<fnref n="114" />. When looking at one of the open conflicts we analysed in Section III, the consequence of this would be to abandon the stance of the ECSR in considering posted workers to be migrant workers and, hence, covered by the principle of equal treatment<fnref n="115" />. Thus formulated, the question moves from the realm of legal feasibility to that of strategic choices. On the one hand, as the study suggests, it may be worth sacrificing some amount of protection of fundamental social rights to obtain the accession of the EU, leaving aside the willingness of the EU to do so. On the other hand, although deprived of legal value or consideration from the CJEU, the critiques of the ECSR of some of the impacts of EU law and action on fundamental social rights might have value that we should not sacrifice too hastily. On the specific issue of posted workers, the EU has, in fact, adopted a subsequent reform of the relevant Directive<fnref n="116" />, which moves, albeit partially, in the direction of more equal treatment for posted workers. Now, it might be impossible to disentangle the role of the decision of the ECSR from the vast number of (sometimes more relevant) factors which allowed for this evolution to happen<fnref n="117" />, but that uncompromising decision clearly showed on which side of the debate the ESC stood.

***

Marco Rocca, PhD, is a CNRS Researcher at the University of Strasbourg (UMR 7354 DRES), France. His research deals with posting of workers in the European Union, the relationship between EU law and international labour law, and the impact of the EU economic governance on social rights. He is or has been partner of several projects financed by the DG Employment of the European Commission, studying working conditions and industrial relations in the meat industry (MEATUP.FFIRE), the labour law and social security situation of mobile artists (MOBILIVE), as well as the impact of the Covid-19 crisis on employment strategies in the civil aviation sector (VIRAL). Formerly he has several postdoctoral research experiences at Hasselt University (Belgium), University of Verona (Italy), and the Excellence Chair on Pensions at the Université Catholique de Louvain (Belgium). Email: mrocca@unistra.fr

<footnote n="111">¹¹¹ European Parliament resolution of 19 May 2010 on the institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 2009/2241(INI): "accession by the Union to the ECHR constitutes an essential first step which should subsequently be complemented by accession by the Union to, inter alia, the European Social Charter, signed in Turin on 18 October 1961 and revised in Strasbourg on 3 May 1996". Cf. also European Parliament resolution of 27 February 2014 on the situation of fundamental rights in the European Union (2012) (2013/2078 (INI).</footnote>

<footnote n="112">¹¹² Olivier DE SCHUTTER, *The European Social Charter in the context of implementation of the EU Charter of Fundamental Rights*, January 2016, pp. 44 ff.</footnote>

<footnote n="113">¹¹³ Article 6 TEU.</footnote>

<footnote n="114">¹¹⁴ Olivier DE SCHUTTER, *The European Social Charter in the context of implementation of the EU Charter of Fundamental Rights*, cit., p. 49.</footnote>

<footnote n="115">¹¹⁵ ECSR, *Swedish Trade Union Confederation (LO) and TCO v. Sweden*, cit., § 134.</footnote>

<footnote n="116">¹¹⁶ Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services.</footnote>

<footnote n="117">¹¹⁷ Cf. Marco ROCCA, "Stepping Stones Over Troubled Waters. Recent Legal Evolutions and the Reform of the Posting of Workers Directive", in Nathan LILLIE, Jens ARNHOLTZ (eds.), *Posted Work in the European Union. The Political Economy of Free Movement*, Milton Park, Routledge, 2020, pp. 167-184.</footnote>
<figure><img src="image_2.png" /></figure>