In this contribution the added value of the Charter in the area of social security is examined. It is concluded that Article 34 of the Charter has not created fundamental rights that can be invoked ...in order to improve the legal position of claimants of social security or of social assistance. This conclusion is no surprise, given the express provisions limiting the interpretation of the Charter. Instead, it is interesting to note that the Charter has, in particular, added value where the scope for interpretation has not been explicitly limited, that is where provisions are applied that are not implemented by the instrument that is disputed in a particular situation. A second added value is the doctrine of horizontal effect, which means that in some cases provisions of Directives can also be invoked in horizontal situations. This is of relevance, particularly in non-statutory social security cases. Also, the Court of Justice itself seems to have had its difficulties in applying the Charter. It is difficult to understand the consistency of the Dano and CG judgments, where in the Dano the Court claimed not to have jurisdiction to interpret the non-specific provisions in the case, yet in CG, it did so without having even been asked. In this contribution it is undertaken to analyse these judgments with a view to better understanding the added value of the Charter.
Unemployment benefits are a special type of benefit for coordination purposes since Member States exporting benefits tend to fear that supervision of their benefit recipients in the host State will ...not be satisfactory. For this reason, several complicated rules have been made, which are disadvantageous for the benefit recipients living in a country with low unemployment benefits who last worked in a country with higher benefits. The rules are also disadvantageous for countries with many outgoing frontier workers. Although the proposal for revising the Regulation includes new rules to address these problems, the large differences in interests between Member States make it difficult to reach a compromise.
The term ‘social market economy’ was introduced in the Treaty on European Union in order to emphasise that social and economic objectives of the European Union are both important, and have to be ...reconciled with each other. This contribution describes how social objectives have been developed in EU law since the establishment of the European Economic Community. The Court of Justice of the European Union has interpreted Treaty provisions to give them maximum effect for the realization of these objectives. However, tensions with the economic objectives exist when economic freedoms are confronted with social rights. This contribution examines how the CJEU balances these interests, and how this relates to the social market economy. There are also areas where economic rights have no counterpart at the EU level, but where they interact with social policies of Member States. Here too, the concept of social market economy is relevant. After a discussion of these various dimensions of the term social market economy, the subsequent articles of this Special Issue are introduced.
This article discusses the contributions of this Special Issue on the relationship between social and economic values and rights. It shows that the contributions are illustrative of the various ways ...in which the social market economy concept is, and could be, approached. In preparation for this Special Issue, several meetings and a work conference were organised, in which drafts of the contributions were discussed. However, this did not result in a uniform concept or uniform approaches. This diversity in viewpoints mirrors the different ways in which the concept of the social market economy can be perceived. There is no single, uniform approach, but a richness in diversity, hopefully deepening a common understanding of what the social market economy is. We expect that the contributions of this Special Issue are thus a valuable contribution to the debate on the meaning of the social market economy concept in the European Union. In this concluding article I compare the different approaches brought forward in the contributions, identify differences and similarities, and in this way show how the concept of the social market economy is useful to develop the various disciplines further. This interpretation is the sole responsibility of the author.
The effects of crossing borders can be advantageous or disadvantageous for the persons concerned; these are all part of the game and cannot be challenged on the basis of EU law. After all, the Treaty ...on the Functioning of the European Union (TFEU) does not provide powers for harmonisation, but only for coordination. However, the coordination rules themselves may make a person worse off when he or she makes use of the right to free movement. More precisely, such an effect may occur in combination with differences between national systems to which coordination rules are applied. One example is that the coordination rules provide that a person is subject to unemployment benefits in the country of residence and, as a result, if that person becomes ill, also to sickness benefit in that country. If the duration of sickness benefit in the country of residence is 52 weeks, but the waiting period for disability benefit (supposing, for instance, that this is (mainly) due from the country of employment) is 104 weeks, there is a gap of 52 weeks in protection. The relevance of such gaps is not to solve particular cases as such; after all, these are closely linked to particular national systems. The relevance lies in the more general approach that is now being developed by the Court of Justice to address such gaps. This will be useful in cases other than those discussed here and may be further developed in order to be codified in the Coordination Regulation.
Free movement of persons is a fundamental freedom and equal treatment its necessary corollary. Yet, both principles have come under pressure in the past decades. This article investigates three forms ...of mobility within the European Union (EU): workers, economically inactive persons and posted workers. In respect of all three categories, there is a tension between social and market interests, which appears most clearly when comparing their right of equal treatment. The balancing between market and social values is at the core of this research. We expect that the social market economy will, on the one hand, explain the ‘'why'’ in discussing the right of equal treatment of free movers and its limitations. On the other hand, the social market economy also has a normative dimension, which enables us to discuss perspectives on 'how' equal treatment can develop, and make some propositions. We argue that the social component in the market economy requires a revision of what is seen as fair competition in the direction of outlawing social dumping. We also find that the persistence of the market elements pleads for the right to free movement of persons, which does not substantially disturb the economy of the host Member State.
The European Court of Human Rights and the Court of Justice of the EU have both developed their own approach to discrimination on the ground of nationality. The context of both approaches is very ...different and therefore it is not surprising that they diverge considerably. Because of the expected adherence of the EU to the ECHR it is important to analyse these divergences. This contribution describes the case law of both courts in detail, and pays attention to the differences in approach between EU nationals and third-country nationals. It also analyses the differences in approach in respect of direct and indirect discrimination. Finally, the contribution summarises the areas where differences in approach are most likely to appear.
This article describes the history of policies for making bilateral agreements by the Netherlands, a country with considerable migration to and from over time and one of the founding states of the ...EEC. For this reason, the characteristics of the agreements made and the main developments over time can provide a mirror for discussion of the bilateral agreements of other Member States. The development of the reasons of making bilateral agreements are described and this makes it possible to distinguish several generations of agreements. It is contended that this is useful in describing the agreements made by other countries.
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