The problems of a social Europe

Josefina Cuesta, Université de Salamanque (Espagne)

The Complex Evolution of European Integration

With the coming into force of the Treaty of Rome on 1 January, 1958, a complex process of European integration began. On 4 January, 1959 the European Free Trade Association (EFTA) was created and on 14 December, 1960, the Organization for Economic Co-operation and Development (OECD). The UK, Ireland and Denmark joined the EEC on 1 January, 1973. On 10 December, 1974, at the Paris Summit, it was decided to elect a European Parliament by direct universal suffrage. On 1 January, 1981, Greece joined as the tenth member of the EEC and on 1 January, 1986 it was followed by Spain and Portugal.

The Single European Act came into effect on 1 July 1987, and added a title to previous treaties on economic and social cohesion and gave structure to European political cooperation. The Single European Act (1986) included in the Treaty of Rome the will to create an area without borders, eliminating controls over people –of any nationality-  crossing the internal borders. This area was not created until the final date foreseen, which was 31 December, 1992.

Nevertheless, the development of the Single European Act led the Council in 1990 to extend  the right of residence to all persons not carrying out economic activity, as long as they had enough resources available and social coverage. This extended right to circulation and residence of persons was effectively enshrined with the creation of European citizenship in the Treaty of the European Union in 1992 .

This Treaty made explicit the nature of European citizenship set out in the Treaty constituting the Community (article 17, formerly 8). After the signing of this Treaty, the declaration of the European Council in Birmingham went further, in October 1992, arguing that citizenship in the Union gives our citizens more rights and more protection, without supplanting national citizenship in any way, taking into account that the matter of whether a person has nationality in one or another of the member States is determined solely by the internal law of that State.

Actually, the European Union was created in the Treaty of Maastricht of 1 November, 1993, which enshrined the passing from a merely technical Europe towards integration of a political nature. All the more or less utopian conceptions that had been formulated since the 19th century seemed to potentially come together in this Treaty.

“According to the Treaty of Maastricht, a citizen of the EU is any person who has nationality in a member State. EU citizenship was created to reinforce and foster European identity, having citizens participate more fully in the process of Community integration.  Thanks to the development of the single market, citizens enjoy a series of general rights in different spheres, such as the free circulation of goods and services , consumer protection and public health, equality of opportunities and treatment, access to a job and social protection” (my translation) . Thus we have a distinction, a split made between two political-legal figures, which at the same time are superimposed: those of citizenship and nationality, a distinction which for practical effects is of practically no value in the purely international sphere. 

The construction of Europe, moving from the economic plane to the political plane, reveals a greater link between the governing bodies of the Union in the legislative aspect, with the establishing of the procedure of co-decision between the Council and the Parliament for most of the laws, i.e. between the authorities who represent the governments and those which are considered to be direct representatives of the citizens. Actually, the Treaty of Maastricht, superimposed on the previous decisions and practices, converts the European Union into an entity that is difficult to assimilate, and apparently, to administrate. What is clear is that the Laeken Declaration proclaims that the unification of Europe is imminent, and that this real change demands methods other than the ones followed for the past fifty years.

In 1997, the Treaty of Amsterdam, which went into effect on 1 May, 1999, brought a political solution that permits progress in the free circulation of persons. The integration of the Schengen Agreement in the Treaty of the European Union, however, allowed certain States to manifest their desire to remain in a special situation, retaining control over their borders with other EU states. 

Subsequently, on 10 December 2000, the “calamitous compromise”  of the Treaty of Nice was reached, entailing the re-structuring of the governing bodies of the Union and proclaiming the Charter of Fundamental Rights of the European Union, which does not form part of the Treaties. The extreme complexity of the text of the Treaty of Nice, granting a distribution of votes according to variables that were subsequently considered controversial, also expresses the exhaustion of the Europe of governments and bureaucrats. 

In these circumstances, the creation of a European Convention was decided, charged with drawing up a Constitution for Europe.  It was presided over by the former President of France, Valéry Giscard d’Estaing . A draft for the European Constitution was submitted to the Inter-Governmental Conference on 30 September, 2003, whose task was to convert the Convention draft into a draft for a constitutional treaty. In the Conference debates, the ten future new members of the Union were present. In its debates the Conference tore the draft of the convention to pieces and submitted to the European Council (12-13 December, 2003) a text containing even more complex elements. The Council did not come to any agreement, mainly owing to the positions of Spain and Poland, who were not in agreement with their lack of representation in the votes of the Council and the initial draft remained as the only basis for the writing of the new treaty.

  To this was added the fact that on 16 April 2003, the treaties governing the membership of ten new member States were agreed on in Athens, and they became full members on 1 January , 2004.

The Nature of the Treaty Draft

This draft of the “Treaty Establishing a Constitution for Europe”  was adopted on 18 June, 2004 and led to great difficulties, both legal and political. In this regard, it must be taken into consideration that the text in question has 36 Protocols, 2 Appendices and 409 declarations relating to the provisions of the Constitution.

This is an atypical convention whose objective is not only to regulate the relations between international subjects, but also to structure internal relationships that are more typical of a federal or confederated organization, without this constituting an authentic and unique international subject. 

What is, then, the political system that the so-called Constitution enshrines? Without a doubt this question has to be answered as a function of the definitions and objectives stated in the Treaty.  In article I-1, its first paragraph should be read and understood in its entirety, since it establishes that “Reflecting the will of the citizens and States of Europe to build a common future, this Constitution establishes the European Union, on which the Member States confer competences to attain objectives they have in common.  The Union shall coordinate the policies by which the Member States aim to achieve these objectives, and shall exercise on a Community basis the competences they confer on it.”.

Article I-2 declares the values of the Union, and I-3, its objectives, and in number 4 it refers specifically to its relations with the rest of the world, and in particular, respect for the principles of the United Nations Charter. Article I-5 refers to the relations between the Union and the member States and enshrines that the Union will respect the equality of the member States before the Constitution, which likewise enshrines respect for their national identity, inherent in their fundamental political and constitutional structures, inclusive of regional and local self-government.

Another, no less interesting, aspect is found in article I-6, which prescribes that “The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States”. Thus, it can be seen that although the Treaty states that it respects the constitutions of the member States, since EU law shall have primacy over States’ rights, its institutions shall nonetheless be affected in cases where the rights of the member States’ constitutions are subordinated to those that community legislation constitutes or may constitute in the future. In other words, the member States renounce part of their legislative capacity.

How the Governing Bodies of the Union Function

The Draft of the Treaty regulates better and more clearly, with the necessary modifications, both the workings of the bodies of the Union and the systematization of its normative provisions. Until this instrument comes into effect, the four fundamental institutions of the Community will continue to have their current functions: the European Parliament (art. 3.1 of the Single European Act); the Council of Ministers (Sectorial); the European Council (or Council of Heads of State or Government) starting with the Paris Summit of December, 1974, also recognized in the Single European Act; the Court of Justice and the Court of Accounts, regulated by Foundational Treaties and by the subsequent Basic Treaties that extended and modified them .

As to the institutional provisions for the functioning of the union, the Draft Treaty clearly differentiates the competences of the European Parliament (articles III-330 to III-340); and the European Council (article III-341); the Council of Ministers (III-342 to III-346); the European Commission (articles III-347 to III-352); the Court of Justice of the European Union (articles III-353 to III-383) and the Court of Accounts  (articles III-384 and III-385).

There are very specific provisions that for reasons of space cannot be enumerated, described and compared here, but in spite of their consistency and systematic nature, there are aspects of the articles that could be qualified before their application. 

Systematizing the Normative Provisions

Title V, regarding the exercising of Union competences and the legal acts of the Union referred to in article I-33, clearly defines the legal figures of European laws, European framework laws, European regulations, European decisions and recommendations and opinions, subsequently detailing satisfactorily those that are legislative acts (article I-34); non-legislative acts (article I-35); delegated European regulations (article I-36) and implementing acts (article I-37), and furthermore regulating the principles common to the Union’s legal acts (article I-38). Undoubtedly the new methodology will further a better application and interpretation of Union law, already complex and very extensive.

Previously, Community treaties stipulated the diverse legal instruments for integration and for certain cases the Court of Justice gave an opinion on its scope and instrumentation.  This judicial body particularly recognized the nature of directly applicable provisions, articles 48 (58), 52 (59), 53 (60), and 59 (61) EEC, and likewise deemed that article 119 EEC produces certain direct effects . According to article 186 EEC, the regulations are by definition directly applicable . As regards the Directives, which set objectives, they are compulsory as to the latter, but leave it up to the member State to choose the means to meet the objectives and on occasion produce direct effects in their relationships with private parties .

When the Draft of the Constitutional Treaty goes into effect, it will be necessary to take jurisprudence into consideration in order to determine the real effectiveness of the new provisions.

This is particularly important, not in the case of civil and political rights, but in certain suppositions of economic, social and cultural rights. This is because what the draft enshrines is the equality of the member States before the Constitution, but it does not go so far as to establish basic real equality of rights for all nationals of the member States.  According to M. Durossaet: “The disparities between the States are so large and run the risk of  becoming more accentuated with the joining of the PECO, in all areas… disparities in development between countries and disparities between social systems explain why the obligations imposed by Community law are, most frequently, minimal” .

Under these conditions, one might wonder, in particular regarding the social aspect, whether all so-called European citizens enjoy the same rights, when the States they are nationals of have conferred on them, by virtue of their domestic law, rights that are different from those of other nationals of each State in the EU. It is well-known that not all member States have the same level of income, much less the same salaries or social rights. It is precisely in these disparities where the EU has difficulty in achieving its problematic social cohesion.

The Fundamental Rights of the Citizens of the Member States of the Union

Once the constitutional Treaty goes into effect, the EU’s Charter of Fundamental Rights, solemnly proclaimed in Nice, will be one of the most serious guarantees in the area of individual rights of this text. From a solemn declaration it will move to a legally binding Treaty that guarantees the exercising of recognized rights in this case. In this respect it is necessary to consider that the provisions of the “Protocol relating to Article I-9 (2) of the Constitution on the Accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms” establish that the agreement regarding accession “shall make provision for preserving the specific characteristics of the Union and Union law” (article 1).

Chapter IV deals with solidarity, in articles II-87 to II-106 and specifies workers’ right to information and to be consulted, the right to negotiation and collective bargaining, access to job services, protection in case of wrongful dismissal, just and fair job conditions, prohibition of child labour and protection of young people in their work, social life and family life, social security and social aid according to the modalities established by Union law and by national legislation and practice, health protection, access to services of general economic interest in order to promote the social and territorial cohesion of the Union, and environmental and consumer protection.

It should be highlighted that this Chapter elevates to the status of fundamental rights those rights that figure in Section 1, Employment (articles III-203 to III-208) and Section 2, Social Policy (articles III-209 to III-219) of Chapter III  of Part III, the basic pillars of a “Social Europe”.  But this is to point out, notwithstanding, that the social rights thus regulated have a more restricted and even constricted nature than those that are generically set out in the Charter.

Neither can we ignore the argument of B. Cassen in that “this is undoubtedly the only “social” Charter that explicitly subordinates social rights to the imperative of the international mobility of capital and free trade” .

Chapter V refers to citizenship –already contemplated in Maastricht and Amsterdam- and specifies in articles  II-99 to II-106 the right to active and passive suffrage in elections  to the European Parliament,  the right to active and passive suffrage in municipal elections, the right to good administration, access to documents, to submit complaints to the European Ombudsman, the right to petition the European Parliament, freedom of circulation and residence and diplomatic and consular protection.

Justice is treated in Chapter VI and developed in articles II-107 to II-110, enshrining the right to effective remedy and a fair trial, the presumption of innocence and the right of defence, the principles of legality and proportionality of criminal offences and penalties, the right to not be tried or punished twice for the same criminal offence.

The Charter ends by establishing the general provisions governing its interpretation and application, which are the subject of Chapter VII, which regulates the sphere of application, the scope and interpretation of the rights and principles, and it should be mentioned that number 4 of article II-112  which says that “to the extent that the present Charter reproduces fundamental rights resulting from the constitutional traditions common to the member States, those rights will be interpreted in harmony with the above-mentioned traditions” . Undoubtedly the jurisprudence of the Court of Justice will be decisive as to the scope and content of these traditions. In the last instance it establishes the level of protection and prohibition of the abuse of law.

Economic Europe and Social Cohesion

The most important thing to point out is that, apart from the guarantees it offers in the aspect of human rights, it is foreseen that the policies and internal actions that regulate the economic aspects are legally defined and in principle are articulated in a binding way both as regards the internal market, free circulation of persons and services, freedom to offer those services, free circulation of goods, cooperation in customs, prohibition of quantitative restrictions both for importing and exporting, capital and payments, norms of competition, economic and monetary policy and specific provisions for the member States whose currency is the Euro [Title III of Part III of the Draft of the Treaty]. The third Part of a Treaty in which the terms “market”, “banking” “competition” and “capital” are dominant .

To meet these objectives, article III-173, without prejudice to what is set out in article III-172, 2 prescribes that a European Framework Law of the Council will establish the measures aimed at meeting the established legal and administrative provisions of the member States that have a direct influence on the establishment or functioning of the internal market. The Council will state their unanimous opinion after consulting with the European Parliament and the Economic and Social Committee.

Seen superficially from this overview, nobody can deny that the economic part of the Treaty is the best structured and most consistent. This is not surprising if we take into account that since the Treaty of Rome of 1957, moving through the Treaties of Maastricht and Amsterdam, the Europe that began to be built starting with the European Economic Community was and is fundamentally economic, with a clearly defined market model.

This affirmation seems to be confirmed by the density and number of Protocols annexed to the Treaty, the most significant, among others, being those referring to: Central Bank systems and the European Central Bank (No. 4); Statutes of the European Investment Bank (No. 5); Procedure applicable in the case of excessive deficit (No. 10); Convergence criteria (No. 11), Euro-group (No. 12); Provisions relating to the United Kingdom and Northern Ireland with respect to economic and monetary Union (No. 14); National Bank of Denmark (No. 15). Even Protocol No. 29, on economic, social and territorial cohesion, refers fundamentally to Structural Funds, without making any reference to social policies and rights as factors of economic solidarity.

In contrast to this, social Europe seems to be a corollary of economic Europe. In this sense, Colina, Ramírez and Sala have already observed that: “the liberal approach was the starting point in the drawing up of the Foundational Treaties and that suffices to explain the lack of development of a community social policy, which is certainly not extensive and complete. Thus, the objective of Community social provisions has always been that of placing the social costs of firms in the different countries of the Community on an equal footing to avoid altering the free competition among them by means of less advanced legislation in a member State” .

Subsequently, G. Sintes said that: “Three ways have been opened for the construction of a European social area: the first consists of harmonizing the systems by means of constrictive rights; the second, of bringing those systems closer through cooperation between states; and the third would be based on collective bargaining. If the legislative route is advisable in certain situations, it would be wiser to bring about their interconnection rather than systematically wanting their harmonization… However, harmonization should not be prohibited; it is possible, even desirable, in certain social issues, since the realization of the territorial market makes it necessary to avoid distortions in competition, or because there is consensus among the social parties” .

Before the Treaty of Nice, the Court of Justice legal opinion 2/91, of 19 March 1993 differentiated between exclusive competences of the Community and competences shared with the member States. The Court decided that the Community and its objectives would be compromised if States could make commitments in areas not referring to common policies, when those agreements could possibly affect the play of Community rules. It is enough for the Community to have one competence in the field covered by an Agreement/Convention for States not to be able to freely commit themselves. In the case of shared competences a close cooperation is imposed between the States and the Community institutions in the process of negotiating and executing the obligations taken on.

Even so, this legal opinion referring to Convention 170 of the WTO considered that “in the current state of Community law, social policy turns out to be predominantly the competence of the member States” .

This does not mean that there is no legal basis for social cohesion. Article 118 of the Treaty of Rome was content to entrust the Commission with a task aimed at fostering collaboration between member States with regard to social issues. This objective ended up being a simple power of formulating legal opinions or recommendations, acts that following the definition of former article 189 (converted into EC article 349) are not really binding on member States. This state of affairs was changed quite a bit with the Treaty of  Amsterdam, which introduced a new Title (Title VI-A) of Part III of the EC Treaty.

The agreement on social policy in the Treaty of Amsterdam established the fields of action in which directives can be adopted with a qualified majority (article 2 of the agreement) and the parliamentary co-decision procedure.  Article 251 replaces the simple cooperation procedure.

  The “European Social Area”, which had its origins in the European Council of Hannover (June 1988) and was enthusiastically promoted by J. Delors and M. Marín, does not appear in the text of the Treaty  as having its basis in a suitable framework  for the extensive development of social rights. The impression it gives is that the broadening of this area of cohesion is not adequately provided for and developed with proven legal effects.

It is not surprising that this could be the result of the “Open Coordination Method”  (OCM) introduced at the Lisbon summit and which figures in the conclusions of the Presidency of 2000. 

This is even more understandable if we consider the literal meaning of the opinion of the Commission when they say that “taking into account the differences between the member States, European social policy should define common objectives and not try to harmonise the social systems, which in turn is incompatible with the European political framework” .

What in this aspect is well-known and worth highlighting is that the definition of the European social model adopted by the European Commission in Barcelona (March 2002) according to which “the European social model is based on a high benefit economy, a high level of social protection, education and social dialogue”,  has been considered as adopted.

It is difficult to imagine how this result could have occurred through a simple policy of objectives, disregarding the necessary and possible harmonization, which should be based on an ever greater set of rules for convergence, in an initially selective and gradually extendable area.   

In its day, the report by Martine Aubri (1989) characterized the European social model as having three fundamental pillars:  a) in all countries and for some time now, the State has fulfilled the role of protecting salaried workers; b) in all the States, workers’ representation in businesses has been institutionalized; c) collective bargaining is a generalized, usual and growing practice in the social relations of Community countries. In particular it points out that diversity has often served as a “pretext of the opponents of European construction, who conclude that it is impossible to harmonize social relations” .

And it is not that the Treaty does not deal with these aspects; on the contrary, social rights, which are as important for citizens as civil and political rights, appear in the working draft inserted in Chapter III of Part III under the overly generic heading   “policies in other spheres”.

Thus, in Section 1, relating to employment (articles III-203 to III-208), what the first of them is really referring to is a coordinated strategy for employment. Article III-204 establishes that employment policies of the member States should be carried out “in compatibility with the general orientations of the economic policies of the member States and of the Union”. Moreover, article III-206, number 2 is limited to specifying that the Council, upon the proposal of the Commission, will each year contribute orientations that the member States should take into account in their respective employment policies, the effect of which, according to number 5, is to prepare “an annual Report for the Council about the employment situation in the Union and the application of the employment orientations”.

This last sentence leaves it very clear that the orientations in this case are not binding. Although in III-207 the possibility of a European Framework Law is provided for, in its final paragraph it states that it none of the legal and regulatory provisions of the member States will include harmonization, and the furthest it goes in article III-208 is to create an Employment Committee of a consultative nature to foster coordination in employment and labour market issues.

Much the same can be said of section 2 of social policy, the object of articles III-209 to III-219, through which the European Social Fund was created, a body which already existed before the Treaty. In article III-209, in the first paragraph, it speaks of social objectives, mentioning the European Social Charter of 18 October 1961 and the 1989 Community Charter of Social Rights of Workers. At the same time, in paragraph 2, it establishes that “with this end, the Union and the member States will act taking into account the diversity of national practices (…) as well as the need to maintain the economic competitiveness of the Union”, and in paragraph 3 “they consider that this evolution will be the consequence of the workings of the internal market that  will favour the harmonization of the social systems (…) and the approximation of the regulatory and administrative legal provisions of the member States” . Here we can clearly see the subordination of social policy to economic competitiveness and market interests.

An observer as highly considered as B. Cassen considers that it is either a European ‘Constitution’ that has been presented as a watered-down constitution, or else it is a pieced together copy of the statutes of the IMF and the charter of the WTO .

Regarding these aspects, A. C. Robert states very categorically that “this Treaty makes economic liberalism the supreme objective of the Union. Ignoring the social question, it shortcircuits universal suffrage and imposes an official ideology” . A more nuanced opinion is that of P. Rodier, who considers that “if the community and the member States put social measures into practice that take into account the need to maintain the economic competitiveness of the Community, this does not impede that certain objectives may not be subordinated to economic considerations (a formula sometimes used in Preambles to directives regarding workers’ rights). Social objectives can thus occasionally take precedence over economic necessity. The Community institutions have affirmed this through the relative measures for workers’ health and safety and they likewise do so for discrimination issues (…) through an imperative to protect the fundamental rights of the person rather than of the worker” .

In what is perhaps a too optimistic sense, J.-C. Javillier maintains that “the long-term development of Community labour law cannot be realized without a permanent affirmation of the fundamental values that are the basis of every political democracy. It is thus not surprising that based on the Treaties, the directives and the decisions of the Court of Justice of the European Communities, a Community public social order has developed. Community norms are articled around national norms, always in a sense favourable to workers” .

In any case it is necessary to state that, considering the social improvements enumerated it the first paragraph of article III-210 (sections d, f, g,), the conclusion reached, by virtue of paragraphs 2 and 3 of the precept itself, is the possibility of establishing a European framework law to foster cooperation by means of the establishment of minimum norms to be implemented gradually with regard to worker protection in labour contract disputes. The representation and collective defence of the interests of workers and employers and the work conditions of nationals from third countries allow for the adoption of a Decision so that the ordinary legislative procedure would be applicable if the Council unanimously declares it so, after consulting the European Parliament.

From all this it can be understood that social cohesion will only be achieved with many difficulties and within a foreseeably long period of time. To a certain extent this is logical since the social and economic situations of the 25 member States are very different, especially with respect to the 10 countries who have just joined the Union.  According to a new report by the WTO, “the region where economic insecurity has increased most in the last decade is Eastern Europe” .

The establishment of already existing consultative bodies, such as the Committee of the Regions and the Social and Economic Committee, provided for in articles III-386 to III-392, is undoubtedly a necessary but not sufficient step for achieving social and territorial cohesion in Europe.  The big problem lies in that, as time goes on, until a truly selective harmonization of legislations is achieved, the greater the risks involved in attaining a positive cohesion.

The social differences of the countries in the Union, even in the most developed ones, are truly important, in areas as characteristic as the length of the work week (from 38 hours in France up to 48 in Germany) or salary levels and a minimum wage (only 8 States have established the latter). The same is true with social protection systems, in spite of the Law derived in this matter. Competitiveness, advocated by the Treaty, can produce socially perverse effects, such as relocations of firms, with the consequent loss of jobs, consolidating low salaries in the areas they go to. In Germany, where the business exodus has been greater, unemployment affects 12.6% of the active population.

This would mean a kind of social dumping within the EU that would be based on the reduction of labour costs, with a general downward trend as regards job stability, salaries and working conditions . Experts in the European Commission have already referred to social dumping “which is completely understandable to the extent that new member States have joined the Europe of Fifteen with a mean income that corresponds to approximately 46% of the average … The mean gross monthly salary of the new member States in 2000 was 40% of the mean in the Fifteen” .

Given the above, the polemic over the “Bolkestein Directive” must necessarily be mentioned in tandem with the relocation of businesses and freedom of establishment in the midst of a larger Europe before the Treaty enters into effect. The most conflictive aspect is the “country of origin clause” and the elimination of authorizations and licensing in the country where the service companies are established, when the services are provided to another member State or set up from one.  The clause includes that only “the provisions of the State of origin are applicable” in the services given and in the content of labour contracts and the working conditions and their respective costs.

The positions are conflicting within the European Parliament. The governments of France, Belgium, Sweden and Germany are very much against it, whereas the UK and the Eastern European countries are in favour of it. The Liberal and Popular parties support it, whereas the Socialists and other parties are against it.

Something similar occurs with the social parties involved, and whereas the European employers association (UNICE) considers the norm to be suitable, the European Trade Union Confederation (ETUC) feels that it marks the end of the social dimension of  the European interior market.

Outside the places where the debate was taking place, on Saturday 19 March 2005 more than 60,000 demonstrators protested in the streets of Brussels under the slogan “More Employment and Better Employment”, “Defend Social Europe, Stop Bolkestein”. In France as well the debate has reached the street. The President of the European Commission, Durao Barroso, has promised a revision, but the future of the “European Constitution” is still to be decided.

Under these circumstances, it is easy to prognosticate that the conclusions of the Summit will include a reference to the need to negotiate the Draft. 

The freedom of establishment and the free circulation of persons and goods, in all areas and among the 25 members may also increase this trend in the central nucleus of the Union. We can see that many rights acquired in the most advanced States are being gradually done away with or reduced by their respective governments. This is what is happening in France with respect to work day flexibility (the general strike on 11 March 2005 showed a rejection of the social policy adopted), and in Germany, which has reduced unemployment benefits and in general reformed its social protection, and in Spain, where the labour market is based on precariousness  and a disproportionate number of temporary work contracts, over 33%, which triples the European average. All of this within a high unemployment rate, also much higher than the European average.

Whereas in the WTO they have been working for years to reach what its General Manager calls a “decent job”, in the “Constitutional” draft there are no key words to be found to the effect of “job quality” or “job stability”.

If there is not a bare minimum of Community and/or State legislative intervention there is no doubt that the business trend will continue being to replace permanent jobs with personnel subject to a frantic rotation of increasingly precarious temporary contracts.

The situation of social defencelessness, which arose from an unjust interpretation of “flexibility”, remains as unalterable dogma.  This helplessness may perpetuate, and will become even more intensified if the reforms of the social protection systems reduce both the time and the amount of unemployment benefits.

It is not enough that economic growth may lead to a reduction in unemployment, which unfortunately is not a certain nor much less an automatic result in many situations. It is not just a matter of administrating unemployment, but of installing labour markets that combine flexibility with job dignity, quality and stability.

This solution can hardly be obtained through a new dialogue on social Europe if this pact is not based on: a high degree of social responsibility on the part of  the States; moderation in obtaining business profits quickly and at any price, accepted by the employers’ associations; and strong trade unions (affiliation rates are too low in Europe)  which seriously defend the interests of the workers in a framework of objectivity and realism.

Concerning this, the Economic and Social Council recognized in the Treaty, in its previous nature as a consultative body, can play an important role of support in the application of the Social Agenda 2006-2010, basing itself on the need to update the Lisbon strategy. However, its activity runs the risk of becoming ever more difficult to carry out.  “It is not enough to sign papers and trust that the parties will subsequently fulfil the agreement. The counterpart of any agreement should be the guarantee that it will be fulfilled, and that it of course it fulfils the objectives pursued” .

The European Trade Union Confederation (ETUC) has already declared that “putting economic and social policies on the same level is a good approach” .

UNICE, which represents European employers, “has insisted on the aspect of competitiveness and underlined the importance of creating, above all, employment of better quality and lasting growth, and affirms that social policy cannot be financed except by growth (…) taking into account national traditions, organizations and systems” .

The Social Platform, which groups the representatives of European social NGOs, points out that “the modernization of social protection (…) should guarantee decent living conditions for everyone (…) and this should be our number one priority, over and above a balanced budget” .

For their part, the Commission, based on the Report on the High Level Group, specified that the Lisbon strategy “should: be adapted to the new economic situation; completed with an initiative to increase the working population; and be combined with a pact of stability and growth” .

Although the Council of Nice (Dec. 2000) confirmed the orientations of the European Social Agenda, its effectiveness can be called into question as long as the social norms for European business are not harmonized. 

Faced with such differing positions, in spite of their points of convergence, it is not difficult to predict that European trade unions and social NGOs will not remain indifferent to the work of the Commission and the evolution of the labour measures that governments are adopting.

We can reasonably expect a high degree of trade union and NGO protest in Europe and also the need to deal with a mechanism of flexibility in the assessment of budget balancing. C. Yarnoz described with objectivity that “The European Ministers of Finance in the Eurozone (Eurogroup) and of the whole EU (Ecofin) were putting the finishing touches on the new and weakened Stability Pact that EU leaders plan to approve in the Summit on Tuesday and Wednesday (22-23 March, 2005).  As Germany and France demand, the new rules include extenuating and exempting circumstances for those who surpass 3% of the deficit, impede corrective measures from being applied automatically and give longer time periods to correct budgetary imbalances” .

These proposals of Ecofin were accepted by the European leaders at the Summit of the European Council in spring, 2005, with the express congratulations of Germany and France to the President, Jean-Claude Juncker, for the agreement achieved.

On the other hand, it is necessary to point out that the 3rd section of the oft-quoted Chapter III refers explicitly to “economic, social and territorial cohesion” (articles III-220 to III-224). And perhaps it is not appropriate to divide into three sections (employment, social policy and cohesion) what should be the object of a more homogeneous treatment.  Nevertheless, this differentiation can in part be justified because, whereas employment and social policies essentially concern the rights of persons, those of cohesion refer to funds made available in order to gradually reduce economic inequality for the harmonious development of the EU.

The instruments and economic means conferred for the 2000-2006 period were  defined by the European Council of Berlin in March 1999.

Budgetary appropriation for these effects –taking enlargement into account- is 261,000 million euros for this period, equivalent to 30% of the EU’s GDP.

It is well-known that the regional policy takes the form of structural funds and cohesion funds, but what they are specifically destined for is not always known.

The three objectives of the structural funds are: to foster the development and structural adjustment of backward regions (67% of the endowment); support the economic and social transformation of areas with structural difficulties (11.5%) and support the adaptation and modernization of educational and training and employment systems (12.3%).

Cohesion funds contribute to the financing of projects related to the environment, trans-European networks of infrastructures, and transportation. States with a per capita GDP below the Community average are given money. The resources available for the 2000-2006 period are 118,000 million euros, with another 7,600 million for new members. 

The Draft of the Treaty for a Constitution, in paragraph 2 of article III-220 states that the Union shall attempt to reduce the differences between the levels of development of the different regions and the backwardness of the least favoured regions .

For its part, article III-223, paragraph 1, defines the functions and objectives of the structural and cohesion funds and in paragraph 2 it goes into more detail about what will be in force after the Treaty is signed “they will be established by means of a European law of the Council.  This will be declared unanimously after approval by the European Parliament” .

What should be highlighted about this precept is that these instruments of territorial and economic cohesion  will be regulated by a new set of regulations that must be passed by the European Parliament and unanimously accepted by the Council, and to this effect it is not surprising what  M. Lechantre and D. Schajer had to say:  “enlargement as from 2004 is going to induce a brutal gap in wealth in the midst of the Union; the future of the territorial policy will be the object of lively discussions in the negotiation of the next financial perspectives” .

Based on the above we can now distinguish between “social cohesion” and “economic and territorial cohesion”, which are different but closely related aspects. 

If we wish to attain a Social Europe or a “European Social Model” that is something more than just a regionalization of a globalized economy within the parameters of neo-liberalism on a continental scale, we will undoubtedly have to go on to broaden the contents of the “European Social Area”, modernize the instruments that guarantee social rights and set in motion a process of rationalization of market forces for a more equitable distribution of the wealth brought by growth

In any case, it can be said that the Draft of the Treaty contains notably solid, although problematic, building material in its economic system, but narrow and conditioned material for its social system. Only after it enters into effect will we be able to see how it develops.

In synthesis, it could be affirmed that:

-          The Draft of the Treaty will not set up a “Constitution” either politically or legally. It does not create a federal or confederal state. What is established is a double legal personality, that of the Union and that of the member States, when on an international scale what we really have are twenty-six legal personalities as subjects of International Law.

-          Thus, it cannot be conceived how in the midst of the same State, whatever its configuration, diplomatic representations are recognized, at the level of Ambassadors whose agents enjoy a privileged set of rules and immunity, unless that State is nothing more than a Supranational Organization which those States represented diplomatically form part of.

-          Neither is it consistent to have the explicit distinction in the Treaty of a double form of representation: that of the States forming the EU Council and that of the Peoples of the same, who, through suffrage, elect the members of the European Parliament. In spite of the broadening of the competences of the Parliament, it can be clearly gathered that, actually, the true power of decision in political and legal terms, apart from the functions of the Commission, resides, according to the Treaty, in the European Council.

-          European citizenship does not derive from the “Constitution for Europe”, but rather has its origins in the twenty-five national constitutions which are what confer that status. What the Constitution establishes are certain areas of rights   common to the nationals of the member States forming the Union. Except in the case of diplomatic protection (shared), it cannot be affirmed that European citizenship even merits that name for the time being or that it confers, with respect to third parties, broader rights than those attributed in the respective legal systems of the countries.

-          European social cohesion, inscribed in the values that the constitutional text puts forward, and in spite of the enormous problematic involved, may be possible and may be achieved gradually.  The “European social model” simply does not exist outside of the statement of its objectives and it is imperative to create it. However, it will necessarily have to become consolidated, both by the extensive interpretation of the rights recognized in the Treaty, and this must be done by not renouncing legislative harmonization in the primacy of Community law, and by means of its reception in the internal legal system of each country. The difficulties lie in the application of these rights through the derived legislation that provides for diverse modalities and spheres for their promulgation and application. 

-          In conclusion, the Treaty, with all its defects in economic orientation, is a relative element for the continuity of European construction. However, in order to achieve its objective and some of its ends, such as giving real content to European citizenship, as well as the broadening of the space of social cohesion at greater levels, it will need the decided convergence of political wills and popular aspirations, within a framework of deep solidarity.