La protezione dei diritti sociali nell'ordinamento dell'Unione Europea
Creators: name: Fischetti, Federica <1979>
Publisher: name: Alma Mater Studiorum - Università di Bologna
Year: 2008
Subjects: IUS/14 Diritto dell'Unione Europea

description: This study deals with the protection of social rights in Europe and aims to outline the
position currently held by these rights in the EU law.
The first two chapters provide an overview of the regulatory framework in which the
social rights lie, through the reorganisation of international sources. In particular the
international instruments of protection of social rights are taken into account, both at the
universal level, due to the activity of the United Nations Organisation and of its specialized
agency, the International Labour Organization, and at a regional level, related to the activity of
the Council of Europe. Finally an analysis of sources concludes with the reconstruction of the
stages of the recognition of social rights in the EU.
The second chapter describes the path followed by social rights in the EU: it examines
the founding Treaties and subsequent amendments, the Charter of Fundamental Social Rights of
Workers of 1989 and, in particularly, the Charter of Fundamental Rights of the European Union,
the legal status of which was recently treated as the primary law by the Treaty of Lisbon signed
in December 2007.
The third chapter is, then, focused on the analysis of the substantive aspects of the
recognition of the rights made by the EU: it provides a framework of the content and scope of
the rights accepted in the Community law by the Charter of Fundamental Rights, which is an
important contribution to the location of the social rights among the fundamental and indivisible
rights of the person.
In the last section of the work, attention is focused on the two profiles of effectiveness
and justiciability of social rights, in order to understand the practical implications of the gradual
creation of a system of protection of these rights at Community level.
Under the first profile, the discussion is focused on the effectiveness in the general
context of the mechanisms of implementation of the “second generation” rights, with particular
attention to the new instruments and actors of social Europe and the effect of the procedures of
soft law.
Second part of chapter four, finally, deals with the judicial protection of rights in
question. The limits of the jurisprudence of the European Union Court of Justice are more
obvious exactly in the field of social rights, due to the gap between social rights and other
fundamental rights. While, in fact, the Community Court ensures the maximum level of
protection to human rights and fundamental freedoms, social rights are often degraded into mere
aspirations of EU institutions and its Member States. That is, the sources in the social field
(European Social Charter and Community Charter) represent only the base for interpretation and
application of social provisions of secondary legislation, unlike the ECHR, which is considered
by the Court part of Community law.
Moreover, the Court of Justice is in the middle of the difficult comparison between
social values and market rules, of which it considers the need to make a balance: despite
hesitancy to recognise the juridical character of social rights, the need of protection of social
interests has justified, indeed, certain restrictions to the free movement of goods, freedom to
provide services or to Community competition law.
The road towards the recognition and the full protection of social rights in the European
Union law appears, however, still long and hard, as shown by the recent judgments Laval and
Viking, in which the Community court, while enhancing the Nice Charter, has not given priority
to fundamental social rights, giving them the role of limits (proportionate and justified) of
economic freedoms.