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The EU Charter of Fundamental Rights and the Social Dimension of International Trade

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The EU Charter of Fundamental Rights

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 8))

Abstract

The Chapter explores to what extent a legally binding EU Charter of Fundamental Rights is capable of influencing how the European Union balances demands of social rights with those of international trade, most notably within the World Trade Organisation. The author analyses the approach developed by the European Union in relation to core labour standards in order to assess whether the provisions of the Charter effectively impose on the EU institutions new specific obligations vis-à-vis third countries.

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Notes

  1. 1.

    For an exhaustive overview of the debate on the social dimension of international trade, see C. Di Turi, ‘Globalizzazione dell’economia e diritti fondamentali in materia di lavoro’ (2000) Rivista di diritto internazionale 113, and ‘Liberalizzazione dei flussi commerciali internazionali, norme di diritto internazionale del lavoro e promozione della dignità umana’ (1998) 37 Diritto comunitario e degli scambi internazionali 51; R. Howse and M. Mutua, ‘Protecting human rights in a global economy. Challenges for the World Trade Organization’ (2000), accessible at http://lic.law.ufl.edu/∼hernandez/Trade/Howse.pdf; V. A. Leary, ‘The WTO and the social clause: Post-Singapore’, (1997) 8 European Journal of International Law 118; F. Maupain, ‘La protection internationale des travailleurs et la libéralisation du commerce mondial: un lien ou un frein?’ (1996) Revue Générale de Droit international Publique 45; Y. Moorman, ‘Integration of ILO core rights labor standards into WTO’ (2001) 39 Columbia Journal of Transnational Law 555; A. Perulli, ‘La promozione dei diritti sociali fondamentali nell’era della globalizzazione’ (2001) 02 Diritto delle Relazioni Industriali 157; E.-U. Petersmann, R. Howse and P. Aston, ‘Trade and human rights: An Exchange’, Jean Monnet Working Papers WP 12/2002; S. Sanna, ‘Diritti fondamentali dei lavoratori: ruolo dell’OIL e dell’OMC’ (2004) 78 Diritto del lavoro 147; J.-M. Siroën, ‘Organisation mondiale du commerce, clause sociale et développement’ (1997) 98 Mondes en Developpement 29; M. Balboni, ‘Diritti dei fanciulli e commercio equo: clausola sociale o altro?’, in L.S. Rossi (ed.), Commercio internazionale sostenibile?: WTO e Unione europea (il Mulino, 2003) 119.

  2. 2.

    The link between the non respect of core labour standards and developing economies, namely the circumstance that violations thereof mainly take place in developing countries, is widely accepted. As far as the European Union is concerned, in its Communication of 2001 on the promotion of core labour standards in the context of globalisation, the Commission for instance noted that «In many developing countries, a large part of the local economy is informal and unregulated. Poorer people are heavily reliant on the informal sector, both as workers and consumers, and they consequently tend to be less well protected by core labour standard agreements», Commission of the European Communities, Communication from the Commission to the Council, the European Parliament and the Economic and Social committee “Promoting core labour standards and improving social governance in the context of globalisation”, COM(2001) 416 final, 18.7.2001, 11–12.

  3. 3.

    Reference is herein made to Art. XX of the WTO Agreement.

  4. 4.

    In its Communication of 2001 the Commission states that agreement on the universality of core labour standards has been reached within the international community and that the universal application of those standards must be promoted, Communication “Promoting labour standards”, n. 2 above, at 13.

  5. 5.

    C. Di Turi, ‘Globalizzazione dell’economia e diritti fondamentali in materia di lavoro’, n. 1 above, at 131.

  6. 6.

    General Assembly of the United Nations, Universal Declaration of Human Rights, UNGA Resolution 217 A (III) of 10 December 1948.

  7. 7.

    General Assembly of the United Nations, International Covenant on Civil and Political Rights, UNGA Resolution 2200A (XXI) of 16 December 1966.

  8. 8.

    General Assembly of the United Nations, International Covenant on Economic, Social and Cultural Rights, UNGA Resolution 2200A (XXI) of 16 December 1966.

  9. 9.

    Report of the UN World Summit for Social Development (also includes the Copenhagen Declaration and Programme of Action), A/CONF.166/9.

  10. 10.

    ILO Declaration on Fundamental Principles and Rights at Work – 86th Session, Geneva, 19 June 1998.

  11. 11.

    C. Di Turi, ‘Liberalizzazione dei flussi commerciali internazionali, norme di diritto internazionale del lavoro e promozione della dignità umana’, n. 1 above, at 64.

  12. 12.

    Developing countries also criticize the fact that the introduction of a social clause would imply a de facto discrimination of their product vis-à-vis competing ones. However, Howse and Mutua offer an interesting interpretation of the national treatment principle under WTO law, which rules out such an argument. One of the WTO members’ basic obligations is to provide treatment as favourable to imports as that provided to domestic products. Therefore they assume that a country that has banned slave labour in domestic production, for instance, could equally ban imports of products from facilities that use slave labour. This would amount to equal treatment of both domestic and imported products, with reference to the requirement that slave labour not be used. The authors conclude that requiring a country to accept imported products produced with slave labour, regardless of the treatment of similar domestic products under its law, would amount to demanding more favourable treatment for imports. See R. Howse and M. Mutua, n. 1 above.

  13. 13.

    WTO Doc. WT/Min(96) Dec./W., 18 December 1996, point 4.

  14. 14.

    ILO Declaration on Fundamental Principles and Rights at Work, supra, point n. 5, which in particular states that: “[La Conférence international du travail] souligne que le normes du travail ne pourront servir à des fins commerciales protectionnistes et que rien dans la présente déclaration et son suivi ne pourra être invoqué ni servir à des pareilles fins; en outre, l’avantage comparatif d’un quelconque Pays ne pourra, en aucune façon, être mis en cause du fait de la présente déclaration et son suivi”.

  15. 15.

    C. Di Turi, ‘Liberalizzazione dei flussi commerciali internazionali, norme di diritto internazionale del lavoro e promozione della dignità umana’, n. 1 above, at 69.

  16. 16.

    Communication from the Commission to the Council on ‘fair trade’, COM(1999) 619 final, 14.

  17. 17.

    Communication from the Commission to the Council, the European Parliament and the Economic and Social Committee: “Promoting decent work for all. The EU contribution to the implementation of the decent work agenda in the World”, COM(2006) 249 final, 8.

  18. 18.

    Communication from the Commission to the Council, the European Parliament and the Economic and Social Committee, “Promoting core labour standards and improving social governance in the context of globalisation”, COM(2001) 416 final, 1. See also Communication from the Commission to the Council: “The trading system and internationally recognised labour standards”, COM(1996)0402 final.

  19. 19.

    European Parliament Resolution on the Communication from the Commission to the Council on the trading system and internationally recognised labour standards (COM(96)0402 C4-0488/96), [1999] OJ C104/63, point B. See also Resolution on the compliance with and consolidation of international labour standards [1987], OJ C 99/11, as well as Resolutions of 9 September 1986, [1986] OJ C255/69, 18 November 1988, [1988] OJ C 326/315,11 October 1990, [1990] OJ C 284/152, 30 September 1993, [1993] OJ C 279/16, 28 October 1993, [1993] OJ C 315/242, 9 February 1994, [1994] OJ C 61/89, 14 December 1995, [1995] OJ C 17/175, 15 May 1997, [1997] OJ C 167/158 and 15 January 1998, [1998] OJ C 34/156, calling for guaranteed minimum standards with regard to freedom of association, freedom to engage in collective bargaining, working hours, the minimum age for employment, security of employment, industrial safety and inspection of working conditions and the introduction of a code of good conduct for European multinational undertakings.

  20. 20.

    Ibid., point C.

  21. 21.

    Communication ‘Promoting core labour standards and improving social governance in the context of globalisation’, n. 2 above, 1.

  22. 22.

    Communication on ‘fair trade’, n. 16 above.

  23. 23.

    Ibid., 11.

  24. 24.

    Communication ‘Promoting core labour standards and improving social governance in the context of globalisation’, n. 2 above.

  25. 25.

    Ibid., at 10.

  26. 26.

    European Parliament Resolution on the Communication on the trading system and internationally recognised labour standards cited, point P, where the Parliament considers that the affirmation of fundamental rights in the European Union treaties imposes obligations on both the developed and the emerging countries.

  27. 27.

    European Parliament Resolution on the Commission Communication to the Council, the European Parliament and the Economic and Social Committee entitled “Promoting core Labour Standards and Improving Social governance in the context of globalisation” (COM(2001) 416 — C5-0162/2002 — 2002/2070(COS)), OJ C271E/598. Before the Charter was proclaimed in 2000, the European Parliament used to make reference to the Social Charter adopted by 11 Member States at the Strasbourg European Council on 8 and 9 December 1989 as shown in the European Parliament Resolution on the Communication on the trading system and internationally recognised labour standards cited, point H.

  28. 28.

    Ibid., points 10 and 11.

  29. 29.

    See Communication on ‘fair trade’, n. 16 above, and Communication “Promoting core labour standards and improving social governance in the context of globalisation”, n. 2 above, 11. Also the European Parliament favours this approach, as shown in the Resolution on the Commission Communication “Promoting core Labour Standards and Improving Social governance in the context of globalisation”, n. 2 above, point 13.

  30. 30.

    Communication “Promoting core labour standards and improving social governance in the context of globalisation”, n. 2 above.

  31. 31.

    Ibid.

  32. 32.

    Opinion of the European Economic and Social Committee: “For a WTO with a human face: the EESC’s proposals” of 26 March 2003.

  33. 33.

    Title II: Economic and trade co-operation, Chapter 5: Trade-related areas, Article 50: Trade and labour standards.

  34. 34.

    European Parliament Resolution on the Communication from the Commission to the Council on the trading system and internationally recognised labour standards, n. 19 above, point 24.

  35. 35.

    Council Regulation (EC) No 732/2008 of 22 July 2008 Applying a Scheme of Generalised Tariff Preferences for the period from 1 January 2009 to 31 December 2011 and amending Regulations (EC) No 552/97, (EC) No 1933/2006 and Commission Regulations (EC) No 1100/2006 and (EC) No 964/2007, [2008] OJ L 211/1, replacing Council Regulation (EC) No 980/2005 of 27 June 2005 Applying a Scheme of Generalised Tariff Preferences, [2005] OJ L 169/1.

  36. 36.

    Council Regulation (EC) No 732/2008, Chapter III “Temporary withdrawal and safeguard provisions”, particularly Art. 15.

  37. 37.

    Ibid., Annex III, Part A “Core human and labour rights UN/ILO Conventions”.

  38. 38.

    Communication “Promoting core labour standards and improving social governance in the context of globalisation”, n. 2 above.

  39. 39.

    Ibid.

  40. 40.

    It has been submitted that the Charter contains a myriad of rights which could fall under the “social” heading, which demonstrates how difficult it is to establish boundaries in this sphere. See P. Lorber, ‘Labour Law’, in S. Peers and A. Wards (eds.), The EU Charter of Fundamental Rights (Hart Publishing, 2004) 211, at 218. For the purposes of the present analysis the focus is on social rights connected to working activities, namely labour rights referring to individual and collective rights of workers.

  41. 41.

    This right is also based on Art. 11 of the Community Charter of the Fundamental Social Rights of Workers.

  42. 42.

    Text of the explanations relating to the complete text of the Charter as set out in CHARTE 4487/00 CONVENT 50, CHARTE 4473/00 CONVENT 49. Even if not endowed with legal binding force, the explanations by the Praesidium are a valuable instrument for the interpretation of the provisions of the Charter. In particular, they are granted interpretative value by Art. 52(7) CFR.

  43. 43.

    Art. 52(3) CFR reads as follows: “Insofar as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection”.

  44. 44.

    As pointed out in the Explanations by the Praesidium, this Article mirrors the content of Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work. It also draws on Art. 3 of the Social Charter and point 19 of the Community Charter on the rights of workers, and, as regards dignity at work, on Art. 26 of the revised Social Charter. Paragraph 2 is based on Directive 93/104/EC concerning certain aspects of the organisation of working time, on Art. 2 of the European Social Charter and on point 8 of the Community Charter on the rights of workers.

  45. 45.

    The second paragraph of Art. 33 CFR draws on Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding and Directive 96/34/EC on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC. It is also based on Art. 8 (protection of maternity) of the European Social Charter and draws on Art. 27 (right of workers with family responsibilities to equal opportunities and equal treatment) of the revised Social Charter.

  46. 46.

    Freedom to choose an occupation, as enshrined in Art. 15(1), is recognised in the case law of the Court of Justice (see inter alia Case 4/73 Nold [1974] ECR 491, paras 12 to 14; Case 44/79 Hauer [1979] ECR 3727; judgement of 8 October 1986, Case 234/85 Keller [1986] ECR 2897, para 8). This paragraph also draws upon Art. 1(2) of the European Social Charter, which was signed on 18 October 1961 and has been ratified by all the Member States, and on point 4 of the Community Charter of the Fundamental Social Rights of Workers of 9 December 1989.

  47. 47.

    Art. 16 CFR is based on the Court of Justice’s case law, which has recognised freedom to exercise an economic or commercial activity (see Case 4/73 Nold, n. 46 above, para 14, and Case 230/78 SPA Eridiana and others [1979] ECR 2749, paras 20 and 31) and freedom of contract (see inter alia Case 151/78 Sukkerfabriken Nykøbing [1979] ECR 1, para 19, and Case C-240/97 Spain v. Commission [1999] ECR I-6571, para 99) and Art. 4(1) and (2) TEC, which recognises free competition. The right to conduct a business is to be exercised in full compliance with Community law and national legislation. It may be subject to the limitations provided for in Art. 52(1) CFR.

  48. 48.

    Art. 32 CFR is based on Directive 94/33/EC on the protection of young people at work, Art. 7 of the European Social Charter and points 20 to 23 of the Community Charter of the Fundamental Social Rights of Workers.

  49. 49.

    This Article appears in the revised European Social Charter (Art. 21) and in the Community Charter on the rights of workers (points 17 and 18). Also, there is a considerable Community acquis in this field: see, for instance, Directives 98/59/EC (collective redundancies), 77/187/EEC (transfers of undertakings) and 94/45/EC (European works councils).

  50. 50.

    Art. 30 CFR is based on Art. 24 of the revised Social Charter. See also Directive 77/187/EEC on the safeguarding of employees’ rights in the event of transfers of undertakings, and Directive 80/987/EEC on the protection of employees in the event of the insolvency of their employer.

  51. 51.

    The principle set out in Art. 34(1) CFR is based on Arts. 137 and 140 of the EC Treaty and on Art. 12 of the European Social Charter and point 10 of the Community Charter on the rights of workers. The reference to social services relates to cases in which such services have been introduced to provide certain advantages but does not imply that such services must be created where they do not exist. The third paragraph draws on Arts. 30 and 31 of the revised Social Charter and point 10 of the Community Charter.

  52. 52.

    A.J. Menéndez, The rights’ foundations of solidarity: Social and Economic rights in the Charter of Fundamental Rights of the European Union, (2003) ARENA Working Papers WP 03/1, 5 ff. The difference between policy clauses, ordinary and fundamental rights lies in the issue of enforceability. In particular, Menéndez considers policy clauses those provisions of the Charter “that require public institutions to achieve a certain objective or goal, but without giving direct rise to any subjective fundamental position, [...] basically rights on which they can stand before courts”.

  53. 53.

    Ibid., Table 2, 9.

  54. 54.

    Ibid., Table 1, 8.

  55. 55.

    On the impact of the Charter on the activity of the European Parliament see in this volume F. Camporesi, Chapter 14.

  56. 56.

    In this respect see Case C-22/03 Optiver BV and Others [2005] ECR I-1839.

  57. 57.

    L.S. Rossi, ‘Il rapporto tra Trattato di Lisbona e Carta dei Diritti Fondamentali dell’UE’, in G. Bronzin, F. Guariello; V. Piccon, Le scommesse dell’Europa. Istituzioni, diritti, politiche (Ediesse, 2009).

  58. 58.

    Ibid.

  59. 59.

    Ibid.

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  1. University of Bologna, Bologna, Italy

    Valeria Bonavita

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    Di Federico Giacomo

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Bonavita, V. (2011). The EU Charter of Fundamental Rights and the Social Dimension of International Trade. In: Giacomo, D. (eds) The EU Charter of Fundamental Rights. Ius Gentium: Comparative Perspectives on Law and Justice, vol 8. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-0156-4_13

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