A cherry waiting for the cake: past and present of solidarity in Europe

Paola Chiarella

Ricercatrice di filosofia del diritto, Università “Magna Graecia” di Catanzaro

A cherry waiting for the cake: past and present of solidarity in Europe⃰

Una ciliegina in attesa della torta: passato e presente della solidarietà in Europa

SOMMARIO: 1. Liberal State and liberated society: the European social model – 2. The Counter-revolution. Welfare State in retreat and the expansion of private sector – 3. Flat solidarity and besieged democracy in the European Union – 4. “Flags of convenience” and other tricks. Labour and social rights on the brink: politically too slow, judicially too loose – 5. Something is changing? Directive 2018/957 on posted workers – 6. Some conclusions.

1. Liberal State and liberated society: the European social model.

The Glorious Thirties is the brief but lucky formula used to refer to the European prosperous thirty years after the Second World War. The adjective glorious, not common to human behavior, was put forward by the French economist Jean Fourastié, and it is the most suitable to describe the blissful time of the European economies that arose from destruction and death[1]. Not by chance the Italians used the formula miracolo economico and the Germans Wirtschaftswunder because the unexpectedly rapid and wide prosperity was actually a miracle according to the idea of Hannah Arendt that politics is the realm of a miracle, when something is highly unlikely to happen, and it does happen to introduce something new, giving birth to a new beginning[2]. 

That book was published in 1979 as a farewell to the invisible revolution that took place from 1946 to 1975 in Western Europe, among the countries that, in the following years, would have founded and enlarged the European Union. Invisible but not casual revolution, because the economic growth was the result of a specific political orientation toward a strong commitment to liberty, solidarity, and democracy clearly recognizable in new Constitutions as well as in International Covenants. Since then, fundamental rights, human dignity, solidarity, social democracy gained a prominent place, shaping political and legal reasoning to unprecedented schemes of behavior. There is, in the particular style and wording of those declarations, «an emphatic statement of will from citizens» who reacted to the past experience of repression and humiliation. Most articles of those bill of rights resonated «with a suffered injustice that is negated word for word, as it were»[3].

It was the beginning of the “social Constitutional era” and of the so-called embedded capitalism in which the revival of the economy was mixed to a controlled system of social protection. Constitutional democracy widespread as a theoretical paradigm and political project, putting emphasis on civil, political and social rights that constituted the “sphere of the un-decidable” (about civil and political rights) and “the sphere of what has to be necessarily decided” (about social rights) as a substantial dimension of democracy[4]. The two spheres clearly define the guarantee of an inalienable core as «limit to the limits»[5] or, better said, they represent questions that cannot be decided or that must be necessarily decided by the parliamentary majority.

“Penal Guarantism” was associated to “Social Guarantism” in order to shape a new model of law mainly oriented by one side, to define limits to the punitive action of the State through the use of a principle of proportionality (prohibiting the excessive use of force, rationalizing and minimizing violence) and introducing, on the other side, a generalized responsibility of the State for social welfare encompassing the ideas of social dignity, factual equality and the continuous updating of living conditions of the citizens[6]. It was not just the creation of public institutions deputed to produce welfare. It was also a cultural tradition founded not in general on human dignity, but, specifically on social dignity, as visible in the words of the Italian Constitution (Article 3).

It was accomplished the transformation from a minimal liberal State to a maximum Welfare State due to the identification of new priorities that meant full employment granted by politics, rising wages, old age pensions, high level of health care and education, collective wage bargaining, fiscal policy aiming to control economic inequalities, state control on industries of strategic importance[7]. But above all, there was the political will to produce “social and economic security” for each individual and to reduce the many faces of vulnerability experienced in the past. It was considered a sign of social civilization against the model of an economic Darwinism that allows the fittest to survive, and reject the weak and the poor, submerged by their needs and consequently neglected. Behind the law, there was the intention to fight a kind of social apartheid that would have created a not egalitarian society divided like an hourglass into the two vertices of the privileged ones on the top and the poor at the bottom.

Thanks to the principle of solidarity, the inclusion of the other was the ideal aimed to create mutual ties and a sense of social responsibility for the economic and social conditions of the other[8]. The State provided varieties of safeguards and insurance schemes in order to afford the social question of a vulnerable society[9].

The specific need for protection of being social actor, in specific social contexts, led to the multiplication of fundamental rights through the specification of social rights: children’s rights, women’s rights, workers’ rights, rights of persons with disabilities, rights of the elderly, rights of ill patients became understandable under the multiple conditions related to age, sex, physical, economic and social conditions that gave entitlement to many and different rights[10]. The interest in the social dimension did not mean that liberal tradition was under attack but that the values of autonomy and freedom were evaluated by the real possibilities to live an independent and self-oriented life thanks to material means and opportunities. It is not enough that the individual is free “from the State” if he is not free “in society” because the State can be liberal but the society can be despotic if the structure of private powers is a threat to social dignity and equality[11]. This is, for example, particularly evident in the labor market and health care, where the lack of protection toward unemployment and precarious health condition (that needs expensive care), belittles the value and the power of citizenship that has an undeniable social component[12].

2.  The Counter-revolution. Welfare State in retreat and the expansion of private sector.

The post-war constitutional narrative can be read, in some pages, with antiquarian’s lens. This is true, in particular, for the Italian experience where social rights, provided in the first part of the Constitution, are closer to a historical backdrop of out-of-time considerations[13]. The economic and social situation challenges the first articles of the Constitution: «Italy is a democratic Republic founded on labor» (art. 1); «It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organization of the country» (art. 3.2). This principle defined the goal of a gradual homogenization of the social foundations of the country thanks to the economic and social emancipation[14].

But, what was constitutionally credible to the generation after the II World War, today is unreliable to its sons in an arch of time of almost forty years, by the decreasing of social aspects and the fostering of economic liberties. In its crucial part on social rights and solidarity, the Italian Constitution is not timely anymore. It is like a work of art splintered on the edges. Not experiencing the invisible revolution, as described by Jean Fourastié, the next generation can testify the counter-revolution based on the dismantling of the welfare system, the deregulation of the market, and the primacy of the web as a key site of democratic discourse[15].

In 2012 a constitutional reform introduced the budgetary balance principle in article 81 (in the second part of the Italian Constitution), as required by Fiscal Compact and since then, it has heavily limited social expenditure. This constitutional change is just the emerging cusp of the years following the Glorious Thirties when redistribution, social protection and State intervention in the economy were seriously reconsidered. The principle of solidarity has been restricted in its potential application, and it has been considered an “awkward” concept despite the economic trends to be light and loose from social constraints, while privatization and deregulation were supposed to free citizens by an incorrect and ineffective central direction from the State.

Besides, it was also said that the free market would have empowered citizens, helping them to develop entrepreneurial abilities[16]. This scenario was, but it is still today, informed by «an anthropological image of ‘man’ as rational chooser and entrepreneur, exploiting his or her own labor-power; by a moral point of view of society that accepts growing cleavages and exclusions; and by a political doctrine that trades a shrinking scope of democracy for freedom of the market»[17].

These are the building blocks of a neo-liberal vision that allowed the expansion of the private sector and the State is unable to keep the social commitments undertaken with the citizens because they are not its unique interlocutors[18]. Because of the tax burden’s reduction, private debts expose the States to the compelling request of other subjects. International markets must be reassured, the State is still formally liberal and democratic, but economically it is in the weak position of a debtor.

By the political point of view this new qualification “debt State” determines the overturning of its scope: from the public goals to mainly commercial target. So, the State’s sovereignty is not anymore defined by the classic adjective of the political lexicon: absolute, constitutional, popular, but belittled or even worse, absent as vividly coined in the Italian debate[19]. Debt States are no longer but «semi-protectorates run by a consortium of creditor states represented by the IMF and the Eurogroup»[20].

This is a crucial point because in the past the defaulting situation was the typical risk-taking of the market’s agents and the State, by definition, was out of the market, inasmuch sovereign subject. The impossibility to go bankrupt was also due to the disposition of the instrument to control the economy. The State was not a commercial company, but a necessary entity, unlike private individuals. But nowadays, the private and commercial dimension has broken into the public area and reached the wealth of the State. It is more than ever dominated by the external approval of the market so that it can be under its compulsory administration, requiring economic as well as institutional reforms[21].

It is precisely what Georges Gurvitch envisaged in The Bill of Social Rights as the new threats of totalitarianism for the XX century: financial oligarchy, absolutism of private profit and blind inclination to technocracy that interfere with the functioning of the institutions of political democracy and subjugate men to arbitrary powers in the economic sphere. It forms a private government which «often openly clashes with the political governments, directly stays the application of the legislative power of the State and erects les murs d’argent (walls of money) against any indispensable reform»[22]. “Private opulence and public squalor” are the tracks of our time[23].

It is the withering away of the law, and the State is decomposed in its crucial point of democratic legitimacy and social responsibility[24]. It retreated from the vital economic sector as trade, industrial competition, energy, health, financial services, environment. Because of the commodification of social protection, the individual is left alone to gain in the market, by his own means, what he needs. The consequence is that not everybody has material possibility to pay for the services whose prices are not regulated and can be very expensive. The neo-liberal approach has, also, dramatic effects on labor because of the precarious, underpaid and even unsafe work conditions[25]. Productivity is often gained beyond the limits of social protection.  The Market’s logic lets the rights appear as a not affordable optional rather than untouchable entitlements.

It is not the age of the social question with its demands for social rights, but the economic question with its demands to cut social rights, following austerity policies that diminished the quality of life, and the gap between generations widens. Because of this, society is disrupted and the State resembles a giant without its crown, without the recognizable signs of its legitimacy[26]. The market – as a political form of “non-place” - became the ultimate weapon of a supranational power that no longer needs the state in order to function[27]. The State is the executor of a supreme power to which it is not given to dissent. This economic submission produces a severe and worrying distrust in law and its institutions.

3. Flat solidarity and besieged democracy in the European Union.

The current crisis cannot be transitory as it is the result of a profound change that involved, along the years, Western societies engaged with a disembedded economic order[28]. It is not accidental that the most significant progress in the European Union was made at the sunset of the glorious thirties when the promise of a wider and stronger European Single Market was seen as the solution to the incumbent economic crisis experienced at the national level. Indeed, in the Seventies, Greece, Portugal, and Spain applied to join the European Community[29]. In 1987 the Single European Act, the first major revision after the Treaty of Rome in 1957, was the answer to two imperative needs: to complete the construction of the internal market, at stake after the economic crisis of the Seventies, and to start a first embryo of the political Union[30]. In 1990 the Schengen Agreement abolished the internal border checks creating the Schengen Area that operates very much like a single state for international travel purposes with external border controls for travelers entering and exiting the area, and a common visa. In the same year, the Rome European Council set out, in its conclusions, the framework within which the two Intergovernmental Conferences (IGCs) on Economic and Monetary Union (EMU) and Political Union were going to be conducted. It was the beginning of what still remains today the core of the European Union: a free space of movement with a European citizenship not social, but basically libertarian, since the union is only monetary and as such neither economic or financial[31].

At the origin of the European project «the founding fathers and, more generally, most of the relevant national elites conceived the European integration as a project capable of creating a virtuous circle between open and outward-looking economic policies on the one hand, and closed welfare states and inward-looking social policy on the other. ‘Smith abroad, Keynes at home’»[32].

But this combination, Welfare State at home, Member State abroad defined an untenable and “irrational institutional architecture of the Union” that has favored self-defeating policies whose effects are visible today[33]. Internal market and competition law «have an important effect on the organization of ‘services of general interest’, including, most importantly, social services of various kind (arts 45-66 TFEU). Enforcement in both areas has the potential for undermining the ability of states to regulate such services in ways necessary to preserve domestic commitment to solidarity and social protection»[34]. Smith is more than ever alive, while Keynes died.

The European Union was designed as a liberalization machine putting forward a negative rather than positive integration that would have been possible fostering a European social dimension[35]. It should not be forgotten the invasive role of the European Court of Justice oriented to the economic freedoms, thanks to the doctrine of “Direct effect of European Union Law”, the “Primacy of EU law” and the “Mutual recognition” in the Single Market[36].

 The economy as main unification factor has been converted in the main division factor. The monetary union was thought as the privileged instrument to consolidate the free market, assigning to the national level the protection of social rights. It generated a kind of flat solidarity among Member States since it worked mainly within the internal borders, given the absence of a European Welfare system. In general, the goals of solidarity, social protection, economic and social growth, social and territorial cohesion textually provided by the Treaties and the Charter of Fundamental Rights of the European Union have to be gained individually by each States, with their own means[37]. But this means that inequality in Europe is “relatively stable, but absolutely alarming”[38].

The crisis is amplified by the impossibility of sovereign economies in the Euro-zone to competitively devalue their currencies as they are locked into a single common unit[39]. National social spaces have been converted «into adjustment variables whose main function is to contribute to the pursuit of EMU-related objectives. This transformation alters the balance between the economic and the social dimension in the EU legal order, deforming one of the defining traits of its constitutional identity»[40].

Besides this, the other major problem of the European Union is that the Commission and the Council that have not been politically democratized through popular investiture, are not even subjected to the strict limits to guarantee the equality of all European citizens[41]. In these institutions, each State defends its own interests and the weaker States are forced to suffer the commands of the strongest ones. Cooperation in difficult time is converted into the competition of winners and losers and instead of being redistributive, solidarity has competitive traits[42].

The losers had to comply with bigger entities even at the cost of the loss of the representative function of the Parliament: «every Government has also a duty to educate Parliament». These were the words of Mario Monti, Head of the Italian Government at the worst of the Italian economic crisis. The statement sounded dangerous to many scholars and politicians because it had the effect to weaken the democratic legitimacy in favor of a technocratic design more and more away from meeting the needs of the citizens[43].

National solidarity operates for European workers in the host State because they are economically active subjects. The access to social assistance for a not permanent resident is conditional on the self-sufficiency requirements intended to demonstrate that the migrant will not become an unreasonable burden on the State (Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States)[44]. The Regulation 883/2004 on the coordination of social security systems establishes that special non-contributory cash benefits shall be provided exclusively in the Member States in which the persons concerned reside in accordance with its legislation. So when the Member States lay down conditions for granting of the special non-contributory cash benefit, they do not fulfill the obligations arising from the EU law and they can derogate to the non-discriminatory principle (Article 4 of the Regulation 883/2004) until the citizen does not gain the permanent residency permit[45].

The economic European funds managed by the European Commission (European Social Fund) are episodically used for the deprived areas of the Union, not divided in a periodical redistributive manner. The widest dimension of Europe thanks to its opening to the Eastern European countries reduced the impact of the funds on each territory and postpones the homogenization of different economies. Indeed, the Treaty of Lisbon expressly refers to competitiveness, outlining an open market economy and a free competition also vividly confirmed by the recent jurisprudence of the European Court of Justice about cases that involved Eastern European countries[46].

After the shock of the financial crisis in 2009, the Europlus of 2011 was the first instrument to contrast the adverse economic situation in which the States committed themselves to incorporate the budgetary rules of the European Union into national legislation, as set out in the Stability and Growth Pact which was followed by the Six Pack and lastly the Fiscal Compact with its strict austerity rules which were supposed to provide a remedy for out-of-control government spending[47]. The mechanism was defined as a Counter-Constitution thanks to which the conquest of constitutional democracy and social guarantism were put under a shroud of oblivion. Sovereign debts «were to be managed according to the principles of austerity because only in this way, near-defaulting states were told, would they regain the confidence of markets»[48].

But the wide limitation of sovereign powers on the budgetary question was seen to contrast the national constitutions, as well as the Law of Treaties itself because it imposed economic reforms bypassing democratic processes. Austerity policies contrast also with the Charter of Fundamental Rights of the European Union that has the same value as the Treaties (art. 6 TFEU). It provides a specific chapter on Solidarity clearly violated in its article 34 according to which the Union recognizes and respects entitlement to social security benefits and social services […] in accordance with the rules laid down by Community law and national laws and practices. It also recognizes that everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices.

Austerity policies turned out to be “stone rafts” unable to provide help and triggering a conflict among rich and poor States in a framework of cascading inequalities that is far from the equal social dignity of citizenship. On the contrary, European citizenship gained a punitive character which contrasts the original idea of an ever closer union[49]. But citizenship has to be egalitarian, providing a common set of rights otherwise it is the perfect tool to the consolidation of a free market for rich and a flea market for poor.

4. “Flags of convenience” and other tricks. Labour and social rights on the brink: politically too slow, judicially too loose.

The absence of a unified European social system makes possible the social dumping, as a set of practices aimed at gaining an advantage over competitors, which could have important negative consequences on economic processes and workers’ social security. The pattern of competition provides market participants with vast incentives to avoid or circumvent regulatory constraints, including social regulations. This practice is very often used by employers to find cheaper labor in different national systems in order to save money and to increase profit. Tensions between social regulations and the market-making agenda became particularly evident and worrisome with the extension of the European market to the Central-Eastern European countries.

The enlargement of the market offered an attractive ground for the evasion of social regulations, confirming the primacy of economic rights over social protection and triggering a top-down process. Social dumping poses a major risk to social cohesion and solidarity. It widens existing gaps and creates new divisions at the company, sectoral and societal level and new fragmentations in the protection of social rights[50].

In the last decade, the European Court of Justice decided landmark cases mainly oriented to safeguard economic freedoms enshrined in Articles 49 and 56 TFEU and stating their prevalence over the right of workers to take collective action and the effectiveness of social action. Some of the most famous cases are Viking, Laval¸ Rüffert, and Luxemburg[51].

The Viking Case (C-438/05) concerned a collective action related to the reflagging of the vessel Rosella from Finland to Estonia. The Rosella was operating at a loss and the shipping company wanted to reflag it and enter into a collective bargaining agreement with an Estonian union, to impose lower wages. The Finnish Seaman’s Union (FSU) objected to the reflagging and the International Transport Workers’ Federation (ITF) had been running a Flag of convenience campaign (FOC), asked all affiliated member unions not to negotiate with Viking Line and to take other solidarity industrial action against both the Rosella and other Viking vessels[52].

The EU Court ruled that such collective action is not excluded from the scope of Article 49 TFEU (ex 43 EC) on the right of establishment. The Court stated that Article 49 TFEU is capable of conferring rights on a private undertaking which may be relied on against a trade union or an association of trade unions. Indeed, the provisions on freedom of establishment have horizontal effects. The Court pointed out that it is clear from its case-law that the abolition, as between the Member States, of obstacles to freedom of movement of persons and freedom to provide services, would be compromised if the abolition of State barriers could be neutralized by obstacles resulting from the exercise, by associations or organizations not governed by public law, of their legal autonomy. The Court held that collective action, such as that at issue in the dispute, constitutes a restriction of the right of establishment. The restriction may, in principle, be justified by an overriding reason of public interest, such as the protection of workers, provided that it is proportional. It was for the national court to ascertain whether the restriction could be justified[53].

The Laval Case (C-341/05) concerned a Latvian company which posted workers to work for construction companies in Sweden. The company was the target of collective actions by Swedish trade unions that wanted to force it to enter into negotiations with them on the rates of pay for posted workers. The negotiations broke down and Laval signed collective agreements with the Latvian building sector trade union, to which 65 percent of the posted workers were affiliated. The Swedish trade union took collective action (by means of a blockade of all Laval sites in Sweden) that was supported by other Swedish trade unions. The company brought proceedings in the Swedish courts arguing that the trade union action was unlawful and it conflicted with rights established under Article 49 EC [now Article 56 of the TFEU]. The Laval case went to the ECJ, where it was considered in the context also of the Viking case and under the specific consideration of Directive 96/71 on posted workers (PWD)[54]. The latter sets out minimum standards that must be applied in the case of workers posted from one Member State to work in another. Article 3 of the directive states that the Member States should ensure that terms and conditions established by law, or by universally applicable collective agreements, apply to posted workers, in particular in relation to minimum work periods, breaks, annual holidays and rates of pay.

The EU Court held that article 56 TFEU and Article 3 of Workers Directive preclude a trade union from attempting to force a provider of services established in another Member State to enter into negotiation regarding rates of pay and to sign a collective agreement with terms besides and above the hard nucleus. In Sweden, there was no statutory minimum wage and there were not collective agreements universally applicable. Consequently, in the absence of legally enforceable national provisions, industrial action to impose terms could not be justified under EU law. 

The Rüffert Case (C-346/06) concerned a law from Lower Saxony in Germany (Land Niedersachsen) on the award of public contracts, applying to all contracts with a value of more than €10.000. The law aimed to counteract distortions of competition within the construction and transport sectors that could arise through the use of cheap labor and practice of social dumping. To gain its goals the law limited the right to contract to those undertakings prepared to pay the wages laid down in the relevant sectoral collective agreement. But the law also extended beyond the contract to sub-contractors and provided for a penalty on the contractor for any breach of the law by the sub-contractor. A German company won a tender with the German state of Lower Saxony concerning the construction work at a prison. The company subcontracted work to a Polish service provider whose workers were paid lower wages than prescribed by the relevant collective agreement. Lower Saxony annulled the contract and imposed financial penalties on the company since the German company did not comply with the contract.

The EU Court stated that the demand to pay wages according to the relevant collective agreements did not comply with the Posting Workers Directive, read in the light of Article 56 TFEU. According to the Court, the wages were not fixed in accordance with one of the procedures provided for in the Posting Workers Directive. The collective agreement mentioned in the Public Procurement Act in Lower Saxony was not generally applicable (according to Article 3.1 of the Directive). Furthermore, the method used in Lower Saxony could not be regarded as an application of the method in 3(8) of the Directive. The main reason was that Article 3(8) may only be used if there is no system for declaring collective agreements to be of universal application, which is not the case in the Federal Republic of Germany.

The case Commission v. Luxemburg (C-319/06) was about the right implementation of the Posting Workers Directive by Luxembourg. According to the Commission, Luxemburg had failed, in several respects, to implement it correctly. The Commission claimed that Luxembourg imposed obligations on those undertakings which went beyond those laid down by PWD (for example, by wrongly describing national provisions as mandatory provisions falling under national public policy, and thereby requiring undertakings which post workers to its territory to comply with them). The Commission also criticized Luxembourg for failing fully to transpose Article 3(1) (a) of Directive 96/71, relating to maximum work periods and minimum rest periods, and for violating Article 49 EC by requiring foreign undertakings posting workers to Luxembourg to fulfill certain additional requirements that were not required by undertakings established in Luxembourg.

The Court’s interpretation of Article 3.10 of the Directive is of special interest since it recognizes that the Member States may extend conditions of employment on matters besides the hard nucleus if they concern public policy provisions. The public policy exception is, according to the Court, a derogation from the fundamental principle of freedom to provide services, which must be interpreted strictly and the scope of which cannot be determined unilaterally by the Member States. Consequently, the action of the Commission was upheld in its entirety.

5. Something is changing? Directive 2018/957 on posted workers.

In 2018, the new Posted Workers Directive 2018/957 was adopted in order to remedy  these  unsocial results evidenced in the CJEU case law making acceptable the situation of social dumping. The main problem of the previous directive was that it prevented States and trade unions from imposing on foreign companies full compliance with the regulatory and remuneration standards set up by the collective agreements not universally applicable. The new directive was welcomed by the European Trade Union Confederation (ETUC) because it could finally address, to some extent, the long and sluggish building of Social Europe.

The first important point is the ‘subject-matter and scope’ in article 1: «This Directive shall ensure the protection of posted workers during their posting in relation to the freedom to provide services, by laying down mandatory provisions regarding working conditions and the protection of workers’ health and safety that must be respected». In par. 1a, there is a safeguard clause according to which «[t]his Directive shall not in any way affect the exercise of fundamental rights as recognized in the Member States and at Union level, including the right or freedom to strike or to take other action covered by the specific industrial relations systems in the Member States, in accordance with national law and/or practice. Nor does it affect the right to negotiate, to conclude and enforce collective agreements, or to take collective action in accordance with national law and/or practice». This is particularly important in relation to previously decided Laval case on the right to strike because it allows to negotiate better rates.

According to Article 3 par. 1: the Member States shall ensure, irrespective of which law applies to the employment relationship, that undertakings guarantee, on the basis of equality of treatment, that workers who are posted to their territory are offered the same terms and conditions of employment as nationals of this State. In fact, the Directive covers matters which are laid down in the Member State where the work is carried out: - by law, regulation or administrative provision, and/or - by collective agreements or arbitration awards which have been declared universally applicable (or otherwise apply in accordance with paragraph 8).

The matters concern maximum work periods and minimum rest periods, minimum paid annual leave, remuneration, including overtime rates [this point does not apply to supplementary occupational retirement pension schemes]; the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings; health, safety and hygiene at work; protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people; equality of treatment between men and women and other provisions on non-discrimination; the conditions of workers’ accommodation where provided by the employer to workers away from their regular place of work; allowances or reimbursement of expenditure to cover travel, board and lodging expenses for workers away from home for professional reasons.

The second important new issue is that article 3, par. 1, let. c, substituted the “minimum rate” with “remuneration, including overtime rates”. Thus, the Directive makes a step forward in comparison to a minimalistic reading of Directive 96/71, in the direction of the principle of equality of treatment with national workers.

For the purposes of this Directive, «the concept of remuneration shall be determined by the national law and/or practice of the Member State to whose territory the worker is posted and means all the constituent elements of remuneration rendered mandatory by national law, regulation or administrative provision, or by collective agreements or arbitration awards which, in that Member State, have been declared universally applicable or otherwise apply in accordance with paragraph 8».  Member States shall ensure that undertakings guarantee, on the basis of equality of treatment, allowances or reimbursement of expenditure to cover travel, board and lodging expenses for workers away from home for professional reasons (Article 3, par. 1 let. i) and the conditions of workers’ accommodation where provided by the employer to workers away from their regular place of work (Article 3, par. 1 let. l).

Allowances paid in reimbursement of expenditure actually incurred on account of the posting workers, such as expenditure on travel, board, and lodging shall not be considered part of the remuneration. The employer shall reimburse the posted worker for such expenditure in accordance with the national law and/or practice applicable to the employment relationship. In order to prevent elusive practices, where the terms and conditions of employment applicable to the employment relationship do not determine whether and, if so, which elements of the allowance specific to the posting workers are paid in reimbursement of expenditure actually incurred on account of the posting or which are part of remuneration, «then the entire allowance shall be considered to be paid in reimbursement of expenditure» (Article 3, par. 7).

Also important is the provision in Article 3, par. 8, 2 according to which in the absence of, or in addition to, a system for declaring collective agreements or arbitration awards to be of universal application, Member States may base themselves on: - collective agreements or arbitration awards which are generally applicable to all similar undertakings in the geographical area and in the profession or industry concerned; and/or - collective agreements which have been concluded by the most representative employers’ and labour organizations at national level and which are applied throughout national territory. For this purpose, it is necessary that national undertakings in a similar position are required to fulfill such obligations with the same effects (Article 3, par. 8, 3).

At last, the directive also sets up the maximum duration of posting up to 18 months. A 12 months initial period with a possible 6 months extension where the service provider submits a motivated notification. Where the effective duration of a posting exceeds 12 months, posted workers have a right to all the applicable terms and conditions of employment which are laid down in the Member State where the work is carried out: - by law, regulation or administrative provision, and/or; - by collective agreements or arbitration awards which have been declared universally applicable (Article 3, par. 1 a). In order to prevent elusive practices, to determine the duration of the posting, all periods of posting corresponding to the replacement of posted workers by other posted workers performing the same task at the same place shall be considered.

The directive provides also some measures for the better control and monitoring the posting workers. The publication on a national website is required of accurate and up-to-date information about the working conditions applicable in that Member State, according to national law and practice. National authorities in each Member State have to cooperate with each other on the control and surveillance of posting workers and ensure compliance with applicable national and European Union law.

Member States have the obligation to ensure the compliance with applicable national and European Union law and they have to implement: 1) administrative sanctions in case of violation of the national provisions that will be introduced due to the new directive, and 2) adequate procedures to ensure that workers and/or their representatives are able to comply with and be protected by national and European Union law.

6. Some conclusions.

It is not easy to regain the calm after the storm especially when the harbor is still far away. The economic crisis did not end and the European citizens have the perception of a lock in the gears. The European Union is a great idea and a big project that needs a social propulsive drive to move forward. Since the pure economic approach revealed its undeniable gaps, European citizenship should offer something new and different from the past. It is not the proposal of a Federal Europe but a well-ordered system of convergence of the national systems to a hard core of social protection.

What is missing is the feeling that European citizenship is not just an easy boarding pass for travelers and consumers but mainly something that can be really invoked to gain protection in difficult time. No one in Europe would probably use the formula: I am a European citizen with the true conviction and pride that it could change his own social and economic position. On this point, there is something to work on for the institutions and the States. The European Pillar of Social Rights set out by the Commission in April 2017, is a symptom of this awareness but it is still a weak normative measure: soft law without concrete implementation measures[55]. It is an appetizing cake-design waiting for the institutional roll-up sleeves attitude toward solidarity and social rights. It is, of course, an entirely new adventure to be experimented in a transnational institutional key, that requires to overcome the day by day crisis management, and it is a long-oriented social trajectory. Probably it will not happen as a result of a kind of big bang change, but thanks to real and concrete measures of social aids[56]. Europe needs, more than ever, a Social Union that would «support national welfare states on a systemic level in key functions such as macro-economic stabilization, and guide the substantive development of national welfare states through the establishment of general social standards and common social objectives»[57].

Maybe Europe, in its entirety, can be once more, the fertile laboratory of new beginnings. On the contrary, a fragmented Europe would not help indebted States and their citizens that would probably be submerged in the stone rafts of national egoisms.

1. The theoretical foundation of social protection lies with the principle of solidarity that aims to ensure specific social rights to reduce vulnerability of its different threats. Social protection, secured by State, gives equal opportunities to live a dignified life, while its lack is the main cause of social uneasiness especially if austerity policies cut dramatically social expenditure. The current economic and political crisis in Europe is also the result of a weak commitment to solidarity and social rights by the European institutions. The solidarity principle even if textually provided (in the Treaties and in the European Charter of Fundamental rights) seems to be a cherry waiting for the cake, that it would come to fruition with the implementation of a social European citizenship.

⃰ This paper, blind peer reviewed, has been elaborated within the research project “Transformaciones de la Justicia. Autonomía, inequidad y ejercicio de derechos” (DER 2013-48284-R, 2017-2020), Programa estatal de Fomento de la Investigación Científica y Técnica de Excelencia del Ministerio de Economía y Competitividad del Gobierno de Espaňa. Instituto de Derechos Humanos, Universitat de València.

[1] J. Fourastié, Les Trente Glorieuses: Ou la révolution invisible de 1946 à 1975, Paris 1979. See also, N. Crafts, G. Toniolo, ‘Les Trente Glorieuses’ : From the Marshall Plan to the Oil Crisis, in Dan Stone (ed.), The Oxford Handbook of Postwar European History, Oxford 2012, pp. 356 ff.; A. Supiot, Grandeur et misère de l’État social, Paris 2013. The adjective glorious is also historically used to refer to the liberal revolution in England in 1689 with the definitive defeat of absolute monarchy and the introduction of a constitutional paradigm thanks to the Bill of Rights.

[2] H. Arendt, Was ist Politik? Fragmente aus dem Nachlaß, Ursula Luds ed., foreword by Kurt Sontheimer, München 1993, pp. 28 ff. It is very far from this point of view the slogan “There is not alternative” widely invoked nowadays to impose specific economic directives to the governments of the countries with high budget deficit. It seems that the time of politics expired also because it normally requires a “spectrum of time” that is inevitably reduced in the emergency of the crisis. Urgency and necessity lead to quick and slim solutions according to a philosophy of austerity.

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[8] Of course, it is a recall of the expression of the book by J. Habermas, The Inclusion of the Other: Studies in Political Theory, Cambridge, Mass. 1993. About the legacy of the social question in the XIX century see also, D. Moggach, P. Leduc Browne (eds.), The Social Question and the Democratic Revolution. Marx and the Legacy of 1848, Ottawa 2000.

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[10] Above all in the Italian debate see N. Bobbio, The age of rights, Cambridge 1995; G. Pino, Crisi dell’età dei diritti? in Etica e politica/Ethics & Politics, XV, 1 (2013), pp. 104 ff.; Id., Diritti sociali. Per una critica di alcuni luoghi comuni, in Ragion pratica, 47 (2016), pp. 495 ff.;  Id., Costituzionalismo dei diritti. Struttura e limiti del costituzionalismo contemporaneo, Bologna 2017.

[11] N. Bobbio, Eguaglianza e libertà, Torino 1995.

[12] T. H. Marshall, Citizenship and Social Class, London 1992.

[13] About the democratic crisis also in EU context see, in the Italian debate, L. Canfora, G. Zagrebelsky, La maschera democratica dell’oligarchia, (G. Preterossi ed.), Roma-Bari; C. Crouch, Post-Democracy, Cambridge 2004.

[14] In the Italian constitutional debate about the meaning of the fundamental principles of the Constitution see G. Branca (ed.),  Commentario della Costituzione, Art. 1-12: Princìpi fondamentali, Bologna-Roma 1975. About art. 1 and social democracy see C. Mortati, Commento all’art. 1, in G. Branca (ed.),  Commentario della Costituzione, Art. 1-12: Princìpi fondamentali, cit., p. 1 ff.

[15] About the gap between generations due to the transformation of the State and the counter-revolution that put Europe in retreat see, J. Zielonka, Counter-revolution. Liberal Europe in retreat, Oxford 2018; J. Clifton, F. Comín, D. Díaz Fuentes, Privatization in the European Union: public enterprises and integration, Dordrecht 2003; E. Huber, J.D. Stephens, Development and crisis of the welfare state: parties and policies in global markets, Chicago 2001.

[16] J. Zielonka, Counter-revolution. Liberal Europe in retreat, cit., p. 55. Not by change in 1994 the entrepreneurial skills were decisive to the political rise of Silvio Berlusconi in the public opinion and  among the voters. 

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[21] G. Zagrebelsky, Moscacieca, Roma-Bari 2015, pp. 33-45.

[22] G. Gurvitch, The Bill of Social Rights, New York 1946, p. 44.

[23] T. Judt, Ill Fares the Land, London 2009.

[24] In the current debate about the crisis of democracy in Italy, Luigi Ferrajoli spoke of wild powers that do not recognize the limits of constitutional democracy but foster its populist involution. L. Ferrajoli, Poteri selvaggi. La crisi della democrazia italiana, Roma-Bari 2011; See also G. Azzariti, Il costituzionalismo moderno può sopravvivere? Roma-Bari 2013 who speaks of a return to the past in the absolutization of powers. 

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[27] C. Bordoni, in Z. Bauman, C. Bordoni, State of crisis, cit.

[28] On the difference between “embedded” and “disembedded” economic orders see K. Polanyi, The Great Transformation,  Massachusetts 1944.

[29] ETUI, Enlargement of the European community following the accession of Greece, Spain, and Portugal: socio-economic aspects, Brussels 1979.

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[31] F. Sharpf, Europe’s Neo-liberal Bias, inA. Hemerijck, B. Knapen, E. van Doorne (eds.) Aftershocks. Economic Crisis and Institutional Choice, Amsterdam 2009, pp. 228-234.

[32] M. Ferrera, The Boundaries of Welfare: European Integration and the New Spatial Politics of Social Protection, Oxford 2006, p. 92.

[33] L. Ferrajoli, Democrazia e diritti nella crisi dell’Unione Europea, in Fundamentos, 9 (2016), pp. 16 ff.; K. Tuori, K. Tuori, The Eurozone Crisis. A Constitutional Analysis, Cambridge 2014. About the European integration and the transformation from Nation-State to member State see C. J. Bickerton, European Integration: From Nation-State to Member State, Oxford 2012.

[34] A. Sangiovanni, Solidarity in the European Union, in Oxford Journal of Legal Studies, (2013), p. 14; N. Boeger, Solidarity and EC Competition Law, in European Law Review, 32 (2007), pp. 319 ff. L. Baccaro, C. Howell, Trajectories of Neoliberal Transformation. European Industrial Relations Since the 1970s, Cambridge 2017. 

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[36] Van Gend en Loos v. Nederlandse Administratie der Belanstinge (Case 26/62),  Costa v. Enel (Case 6/64),and Cassis de Dijon (Case 120/78).

[37] As written in the sixth preambular  provision of the Treaty of the European Union (TUE), the Member States express their desire ‘to deepen the solidarity between their peoples while respecting their history, their culture and their traditions’. According to art. 2 TEU, solidarity is a foundational value of the European Union. According to art. 3 (3) TEU, the Union aims at promoting ‘economic, social and territorial cohesion, and solidarity among Member States’. See also Articles 9, 67, 80, 122, 194, 222 of the TFEU.

[38] M. Dauedstädt, C. Keltek, Inequality in Europe. Relatively Stable, Absolutely Alarming, in Politk für Europe, (2017), pp. 2-4.

[39] For an analysis of the European debt crisis see, T. Draper, An analysis of the European debt crisis: its etiology, current status, and possible future direction, in Cris Bullettin, 1, (2013).

[40] F. Costamagna, National Social Spaces as Adjustment Variables in the EMU: A Critical Legal Appraisal, in European Law Journal, 24 (2018), p. 164. M. Ferrera, Solidarity in Europe after the crisis, in Constellations,  21, 2 (2014) pp. 222 ff. M.A. Wilkinson, Politicising Europe’s Justice Deficit: Some Preliminaries, in D. Kochenov, G. De Búrca, A. Williams (eds.), Europe’s Justice Deficit?, Oxford-Portland (Oregon), 2015, pp. 111 ff. J. Viehoff, K. Nikolaïdis, Social Justice in the European Union: The Puzzle of Solidarity, Reciprocity and Choice, in D. Kochenov, G. De Búrca, A. Williams (eds.), Europe’s Justice Deficit?, cit., pp. 277 ff. C. Margiotta (ed.), Europa: diritto della crisi e crisi del diritto.Austerità, diritti, cittadinanza, Bologna 2018.

[41] L. Ferrajoli, Democrazia e diritti nella crisi dell’Unione Europea, in Fundamentos, 9 (2016), pp. 16 ff.

[42] W. Streeck, Competitive solidarity: Rethinking the European social model, in MPIfG Working Paper 99/8.

[43] That was an “executive time” that expressed the distrust towards politicians and the trust towards technocrats, G. Zagrebelsky, Moscacieca, Roma-Bari 2015, pp. 11 ff. During the worst years of the crisis the impact of the Troika on the political reforms in Italy as well as in Greece was huge. For the financial profiles of the crisis, see C. Lapavitsas, Profiting without Producing. How Finance Exploits Us All, London 2013. M. Ferrera, The European Social Union: A Missing but Necessary Political Good, in F. Vanderbroucke, C. Barnard, G. De Baere (eds.), A European Social Union after the Crisis,Cambridge 2017, pp. 4