Social Rights & Covid-19 Symposium: European Social Policy in the Covid-19 Crisis

Silvana Sciarra, Italian Constitutional Court & University of Florence

The main argument I wish to offer to wider discussions on the legal dimensions of the responses to the Covid-19 pandemic is centered on the effects of the emergency measures adopted in the wake of the crisis, which inevitably developed into economic and social disruptions. The methodology policymakers ought to adopt should be long-sighted, while dealing with temporary solutions. The possible directions for these policies will no doubt need to be framed within the existing legal and political constraints while also being mindful of the need to respect and fulfill the principles set out in the European Social Pillar, which includes equal opportunities and access to the labour markets, the adoption of fair working conditions, and social protection and inclusion. All of these essential components will be implicated in future action at the European level, and it is therefore imperative that a systematic view of legal systems, both national and supranational, should prevail. Hence it would be problematic to transform emergency measures into permanent ones. Legal systems should continue to breathe the air of shared fundamental values which are meant to facilitate further evolving steps, in less trying times.

Opening of Political Space for a Renewed Dialogue

At the launch of her mandate as President of the European Commission, Ursula von der Leyen put forward promising plans to reconcile ‘the social and the market’ and implement the European Pillar of Social Rights. One of the promises she then kept was to start the consultation of the social partners for a European measure on minimum wages. This was a remarkable step, because it revived social dialogue (art. 154 of the Treaty on the Functions of the European Union - TFEU) on a very sensitive theme. Low wages throughout the EU had frequently been recalled as one of the contentious inheritances of the global economic and financial crisis in the aftermath of which several European supra-national institutions played a vital, yet contentious role.  The European Commission’s Recommendations during the European Semester often concentrated on this and related issues, recalling states’ responsibility in establishing fair working conditions, as well as in enhancing growth. Fair wages were also central in rulings delivered by several Constitutional Courts, arguing on the compatibility of austerity measures with fundamental rights and establishing criteria of proportionality and reasonableness. Comparable wages for work of equal value were also crucial in reforming European secondary legislation on posted workers. Some of them continue to cross borders during the pandemic because they provide essential services in the health sector and have been granted special permissions to circulate.

Despite the scepticism of Business Europe and the reluctance of Nordic unions to enter the field of wage policies, the floor has been opened for a discussion. This discussion,  will prove to be highly stimulating in strict legal terms, considering that wages are excluded from EU legislative competences (art. 153.5 TFEU) and yet included in soft-law recommendations. Furthermore, the Social Pillar refers to this principle, recalling most relevant international sources. A closer coherence with international standards is of extreme relevance when discussing ‘adequate’ wages and framing them in an interconnected economic context.

The public health dimension of the Covid-19 pandemic, which has been the most urgent priority for policy-makers, continues to remain pressing. However, wages should be kept at the core of future social policies and run parallel to other measures of economic support for people who were compelled to stay at home with no income. The fear that there will be unemployment caused by the pandemic should not distract policymakers from terminating the consultation on minimum wages. To the negative imaginary of an austere Europe which was complicit in rolling back citizens’ rights during the economic crisis, no other destructive symbols should be added. A sign of attention to dignity could be connected to fair wage policies, especially during the incoming German presidency of the EU. In Germany, legislation on minimum wages was enacted in 2014, in line with recommendations coming from European institutions. The results of this reform are promising.

Establishing the Net and Funding Recovery: Possible Options

The President of the Commission had also put an emphasis on the ‘European Unemployment Reinsurance Scheme’, a project sponsored by her predecessor and widely discussed in academic circles. Even in this case, the emergency caused by Covid-19 imposed a sudden change of manoeuvre. Hence, on April 2, 2020, the Proposal for a Council Regulation on the establishment of a measure for ‘temporary Support to mitigate Unemployment Risks in an Emergency’ (SURE) was presented. This instrument should be made available to Member States on a temporary basis, unlike the EU Solidarity Fund, which should now be extended to cover major public health emergencies. The lending scheme underlying both instruments is ‘underpinned by a system of guarantees from Member States’. The idea is to provide financial assistance on short notice and to implement work schemes for both employees and self-employed persons at risk of unemployment. The legal basis is in art. 122 (1) and (2) of the TFEU. Principles of subsidiarity and proportionality should guide recourse to this Fund, accessible under precise circumstances, whenever a relevant increase in public spending is required to counteract unemployment caused by the Covid-19 outbreak.

The technicalities connected to the functioning of this new proposed instrument arise due to its need to be compatible with the multiannual financial framework. It should be appreciated as the necessary means in complying with transparent management of the funding required. SURE is intended to complement national initiatives in support of the unemployed and must be requested by the Member State in need of sustenance. This, in turn, has the capacity to induce synergies and good practices. Therefore, the initiative taken by each single state should be at the centre of public debates. However, it is also imperative that the EU’s support is made visible while also showcasing the anticipated benefits of these combined measures at the national and supranational levels.  Good communication is also part of renewed trust in the EU. 

However, in an overall strategy of budgetary reforms that should keep EU institutions occupied in the very near future, long-sighted proposals must be presented. Social policies – with few exceptions – have typically lacked the support of specific EU budget lines. The Youth Guarantee scheme is temporary and should be turned into a permanent measure, to combat youth unemployment.  On April 17, 2020 the European Parliament voted in support of the proposal to use uncommitted money from the cohesion policy funds, lifting the burden of co-financing. This too is a path to follow and to explore even further for all available structural funds.

Pathways to New Solidarities

The Covid-19 outbreak is causing the positive effect of opening up new solidarities in a broad and generalised manner. Social policies are grounded in social dialogue, which is inherent in European traditions and mentioned in art. 152 of the TFEU. All this must not be forgotten, both in discussions taking place at EU level and in initiatives at national level.

In Italy, on March 14, 2020 a Protocol was signed by the government, employers and unions to enforce guidelines on health and safety at work. Issues related to the public interest acquire stronger credibility once they are the outcome of negotiations. Legislation later adopted refers to the Protocol and incorporates it in binding rules. Other agreements at a decentralised level have been signed, introducing detailed measures for companies, which are allowed to restart production. Furthermore, the legislature indicated that companies receiving economic support should guarantee employment stability and negotiate this with the unions.

It is not a minor point that negotiated solutions are encouraged and that the social partners become protagonists of the reconstruction. We need to listen to voices closely connected to the needs of all that are suffering and feel deprived of their rights. Employers’ associations and labour unions are now asked to measure their powers as representatives of very diffused interests. In responding to the Covid-19 emergency, we must avoid indifference and uncritical acquiescence.

Silvana Sciarra is Judge, Italian Constitutional Court and Emeritus Professor of Labour Law and European Social Policies, University of Florence.

Social Rights & Covid-19: Symposium Introduction (IACL Research Group on Social Rights)

The COVID-19 pandemic has brought into sharp focus the indivisibility and interdependence of all human rights. It has also highlighted the woeful inadequacy of ways in which social safety nets around the world have been devised and are delivered. The public health crisis has exposed not only the dangers of underinvestment in areas like healthcare and welfare provision but also the disparate impacts this has had across sections of the world’s population.

2020 saw us set out to reinvigorate the Social Rights Research Group (RGSR) as a forum for enabling conversation between researchers and practitioners. The pandemic has provided further evidence that access to effective social rights is a key vector in determining health and economic outcomes. It is clear that in the months to come, political and legal contestations over social rights will intensify. The RGSR hopes to be able to facilitate a wide-ranging dialogue and help connect researchers and practitioners from across jurisdictions. We want to enable the asking of difficult questions about social rights theory and practice - and the formulation of responses to them. This online symposium, co-hosted by the RGSR and the IACL, is meant to accompany the relaunch of the Research Group and brings together leading social rights scholars, many of whom also have experience in advocacy and judicial roles.

Substantively, the RGSR will ask new questions about the relationship between social rights and the broader political and social setting in which they operate. In an age of deepening inequality, what role should government obligations play in creating a safety net to provide the conditions necessary for human flourishing? How should these obligations be judicially managed and adjudicated? In the wake of the pandemic, should courts or the elected branches be the focus of engagement for civil society coalitions aiming to demand better and more equitable access to social services? These are some of the queries which the RGSR will be pursuing, and engagement with these questions is set out in the four strands I outline below. The contributions in the online symposium concern itself with some elements from each of these strands.

The Political Economy of Social Rights Claim-making

The RGSR will first theorize the variance in social rights formulation and practice depending on the social and political conditions under which they operate. We also wish to focus on the constraints under which claim-making on their basis operates. The COVID-19 pandemic has shown how health crises and their attendant social and economic repercussions reinforce and harden existing patterns of vulnerabilities and inequalities. This brings into focus not only the recent debates about the role of social rights in combating inequality, but also their compatibility with some developments seen in parts of the Global South. It may be true that SR have historically been conceptualised with a vision of sufficiency and minimal standards which sit uncomfortably with the growing divide between the rich and the poor. However, it is also true that institutional actors like courts, as well as social movements, have been able to subsume their halting interventions (with varying degrees of success) within the powerful idiom of rights.

As members of the legal profession and academy, some of us are intuitively drawn to court essentialism. Yet, it is unclear where the focus of reconstructing social rights should, or will, lie in a post-pandemic world. The RGSR will therefore situate its discussions of social rights within the broader political economy in which these rights are claimed. It will also pay careful attention to how political actors and civil society articulate their demands that are based in social rights. Take for example the response of the EU to the global financial crisis, where institutions have in the past been associated with attaching conditions like the scaling back of social services to accompany financial assistance in some countries. There appears to be some pushback against a repeat of this. The growing support for lack of conditionality attached to the ESM Pandemic Crisis Support (insofar as it relates to healthcare measures) is an encouraging first step. Yet, it remains to be seen whether future financial measures will respect the 2016 recommendations of the UN Committee on Economic, Social and Cultural Rights (CESCR), especially in relation to the conduct of human rights impact assessments of financial assistance conditionality requirements.

In this vein, Silvana Sciarra (Constitutional Court of Italy; University of Florence) examines the political discursive spaces which have opened up following the pandemic. She considers specifically the provision of temporary financial assistance to states to mitigate unemployment risks in emergencies. She remains hopeful that the President of the European Commission will deliver on her promising plan to reconcile ‘the social and the market,’ and implement the European Pillar of Social Rights. Her post highlights the enduring power and relevance of legal social rights in shaping political discourse.

The Digital Welfare State

Second, the RGSR will consider how the adoption of new technologies is ushering in the ‘digital welfare state’. This usually has adverse impacts on the formulation, realization, and dispute resolution mechanisms for social rights delivery. Some jurisdictions are confronted with the false binary of privacy and efficient welfare delivery. Others have been forced to confront increasing algorithmization and the use of artificial intelligence tools to automate decision-making processes. The proliferating use of private actors in the detection of welfare fraud poses serious risks due to opaque standards of accountability, a lack of sufficient privacy measures, and the likelihood of discrimination and stigmatization. It is imperative that these technologies incorporate crucial human rights principles like transparency, non-discrimination, accountability, and respect for human dignity, as recommended in the CESCR General Comment No. 25 (2020).

Ingrid Leijten (Leiden University), in her post on the SyRI case from the Hague District Court, brings to the fore the systemic risks posed by the development of a surveillance network in certain low-income identified neighborhoods in the Netherland. This practice did not just interference with not just the privacy rights of potential welfare beneficiaries, but also contributed to stigmatization and had an adverse effect on welfare delivery outcomes. The social, legal, and political deliberations over the future of social welfare will undoubtedly need to account for the growing use of technology. The outcome in the SyRI case provides a preliminary template on how human rights principles can undergird these deliberations.

Connecting Domestic and Supra-national Adjudication

Third, the RGSR will consider questions relating to the relationship between domestic constitutional and supranational adjudicatory responses to changes in social entitlements. After the global financial crisis, some domestic courts in Europe were able to, with divergent degrees of effectiveness, draw on principles like non-retrogression to push back against some of the conditionality requirements attached to financial assistance. The RGSR will, therefore, engage with questions about the legality and legitimacy of the social and economic effects of supranational body responses to the pandemic. In particular, we will examine how to develop technical and analytical tools for budget analysis, as well as how to best develop manageable standards for indeterminate terms like ‘progressive realization’ and ‘maximum available resources’.

Aoife Nolan (University of Nottingham) in her post reflects on the role of constitutional social rights litigation (and adjudication) in the coronavirus era. She focuses on how different legal frameworks have been - and might be - deployed to respond to the short- and longer-term social rights challenges posed in the context of COVID-19. In addition to looking at national judicial responses so far, she considers potential points of convergence and divergence between international and domestic adjudicative approaches to social rights during the time of COVID-19.

Colm O’ Cinneide (University College, London), in a two-part post, discusses first, the political and legal marginalization of social and economic rights. In the second part of his post, Colm reflects on their reactivation in both the legal and political spheres. He also enumerates the challenges involved in interpreting social rights and determining when states are in breach of their obligations. In doing so, he discusses wider issues relating to the question of how to put flesh on the bones of abstract social rights provisions.

Meaningful Cross-jurisdictional Comparisons

Fourth, the RGSR will draw lessons from the judicial treatment of SR across a variety of jurisdictions, assessing the implications for comparative constitutional theory. By way of illustration, consider the example of the effects of decentralization on social policy. While it would be unwise to make general claims about the impact of decentralization across social and political contexts, we do know that in many places it has led to difficulties. Some of the challenges faced in these contexts include problems with identifying responsibility for cutbacks, generating competitive social policy deregulation, as well as fragmentation of pro-welfare state interest groups.

The non-uniformity of this experience is attested to by Anindita Mukherjee (NALSAR University of Law, India). In her post, she examines the role played and challenges posed by institutional structures, particularly those of centripetal Indian federalism, in safeguarding socio-economic rights in the face of the emergency action implemented to protect residents against COVID-19. She analyses the relationship that has emerged between the Union and State governments, and between the Supreme Court of India and State High Courts. She then argues that India needs to first work towards meaningful decentralization before it can attempt to operationalize a real social safety net. Her post addresses the need for investing in institutional structures other than courts to enable the successful realization of social rights.

Marcelo Figueredo (Pontifical Catholic University, São Paulo; IACL-AIDC) in his post considers the constitutional and political dimensions of state responses to the COVID-19 pandemic in Brazil. He outlines the challenges to meaningful engagement over the pandemic, against the backdrop of widespread denialism at the highest levels of government. He also sketches out how inter-branch conflict has intensified as a result of the crisis. Marcelo’s post highlights how the branches of government need to work in unison, and not be in perpetual tension, in order to deliver on social guarantees.

These four strands and the posts that engage with them represent only a part of the wide variety of discussions within academic and practitioner circles which will likely occur in the wake of the COVID-19 pandemic. The aim of this symposium is to spur conversation and public debate, while also encouraging scholarly engagement with the issues presented. I hope you enjoy the discussion – please reach out to me if you wish to be part of the Research Group on Social Rights.

Gaurav Mukherjee is an SJD Candidate in Comparative Constitutional Law at the Central European University, Budapest. He is a co-convenor of the IACL Research Group on Social Rights and was an Indian Equality Law Visiting Fellow at the University of Melbourne, 2019.