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Journal ArticleDOI

The (Possible) Role of the Right to Social Security in the EU Economic Monitoring Process

01 Jan 2016-German Law Journal (Cambridge University Press (CUP))-Vol. 17, Iss: 3, pp 277-314

AbstractThe outbreak of the financial and economic crisis in 2008 had a severe impact on the member states of the European Union. Countries like Greece had to ask the Troika (the European Commission, the European Central Bank and the International Monetary Fund) for financial aid. In return, they were obliged to reduce public spending and, as a result, national social security systems were drastically reformed. Furthermore, the EU has exercised its competences to supervise national budgets more extensively, even for countries not applying for financial aid through the Country Specific Recommendations under the European Semester. Like the decisions providing financial support, these recommendations also touch upon member states' social security systems. Moreover, the actions of the EU seem to generate a tension between the social rights provisions in (inter)national human rights instruments and the EU economic monitoring process, hence creating a possible deficit at the level of the EU. The five collective complaints against Greece under the framework of the European Social Charter (Council of Europe) illustrate this tension. This Article investigates this tension further and provides insights in possible ways to close the gap between (inter)national social rights provisions and the EU economic monitoring process by looking at the right to social security in the EU legal order. In doing so, this Article scrutinizes the judicial safeguards available at EU level, namely the right to social security in the Charter of Fundamental Rights (CFEU) and the role of general principles of Union's law for the protection of fundamental rights. It will become clear that a lot of uncertainty still remains regarding the content and scope of the right to social security in the CFEU, as well as the enforceability of this provision in the EU economic monitoring process. more

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Xavier Groussot1
Abstract: This article analyses the attitude of the French “public law” courts towards the basic EU law principles. It is argued that though the Conseil d’Etat has, in the past, been reluctant to welcome the principle of supremacy, the recent jurisprudence demonstrates that it has drastically changed its stance and seeks, instead, appeasement and judicial dialogue with the ECJ. The Conseil constitutionnel with its doctrine of “reserve de constitutionnalite” has clearly influenced the administrative courts. As to the general principles of Community law, it appears that though administrative case law has now clearly recognised their reception in matters falling within the scope of Community law, the Council of State is disinclined to accept their spill-over within purely internal matters.

1 citations

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Abstract: The paper examines the relationship between the severe economic crisis facing Greece and the country’s social protection system, arguing that this relationship is ambivalent. On one level, the welfare state itself has contributed in a far from trivial way to the fiscal crisis of the state, with its various failures including huge deficits in key programmes such as pensions and health. On a second level, the crisis and the measures to counter it deprive the welfare state of resources, while at the same time setting in motion sweeping changes. On a third level, social protection can help cope with the consequences of the crisis, but enhancing its capacity to do so will require considerable reconfiguration and proper funding of social safety nets. The paper concludes by discussing the prospects for a revival of welfare state building in Greece in the current harsh climate.

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Abstract: The present contribution supports the contention that general principles of EU law do not operate as an unstoppable centripetal force at the service of an activist judiciary. Quite the contrary, when having recourse to general principles, the ECJ strives to preserve the vertical and horizontal allocation of powers sought by the authors of the Treaties. Horizontally, the ECJ distinguishes between matters pertaining to the province of constitutional law and those which are subject to legislative discretion. Stated differently, general principles of EU law are applied without encroaching upon the competence of the EU legislature. Vertically, the ECJ is respectful of the constitutional traditions of the Member States but not to the extent of foregoing the basic constitutional tenets of the Union. General principles seek to create a �common constitutional space� where EU and national law engage in a dynamic dialogue which gives rise to a mutual influence between the two levels of governance. Hence, as instruments of constitutional dialogue, general principles facilitate the constant renewal of the EU legal order, epitomising the �EU�s living constitution�. The article examines the horizontal direct effect of general principles, paying attention to the gap-filling function of general principles, and their role in consistent interpretation and as grounds for review, in a situation of constitutional pluralism.

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