Paving the Way for Effective Socio-Economic Rights? The Domestic Enforcement of the European Social Charter System in Light of Recent Judicial Practice

Abstract

The recent crisis-era in Europe has revealed symptoms of lack of respect towards international socio-economic rights and challenges vis-à-vis their effectiveness at national level. One such symptom relates to the (lack of) responsiveness of domestic judges concerning the justiciability, direct applicability and enforceability of such rights. Against this background, a rather neglected legal instrument, albeit the most important one with regard to socio-economic rights in Europe, the European Social Charter, has emerged to the surface of domestic courts’ jurisprudence in recent years providing an extraordinary perspective to combat these challenges. In reality, even though the Charter seemed initially to exclude the possibility of being invoked before national courts, the situation has changed today, especially since the adoption of the Collective Complaints Procedure, as can be seen in the practice of lower and apex courts of several contracting parties. Specifically, various domestic courts – e.g. in Greece and Spain – have in many cases ruled in favour of the direct effect of various Charter provisions and given considerable weight to the ‘quasi-case law’ of the Charter’s monitoring body, the European Committee of Social Rights. They are thus putting flesh on the bones of the normative debates in legal doctrine about the (democratic) legitimacy of judicially reviewing the legislator’s choices and the issue of effectively protecting and enforcing international socio-economic rights at domestic level in times of crisis.

Keywords: Social and economic rights, European Social Charter, European Committee of Social Rights, domestic enforcement, international monitoring, national courts, monism, direct effect, effectiveness, Greece, Spain, austerity, financial crisis

JEL Classification: K30, K31, K33, K39