The rights’ foundations of solidarity: Social and economic rights in the Charter of Fundamental Rights of the European Union

Article abstract:

'Rights to solidarity' is a rather new expression, recently minted in the Charter of Fundamental Rights of the European Union. In this chapter, the term will be used to refer to the social and economic rights included in Section IV of the Charter, together with some other social rights included in other sections of the Charter. The basic question that will be posed in this chapter is what the Charter has to say about the tension between social values and market freedoms within the European Union. Does the Charter favour the four economic freedoms or does it enhance the chances of realising the basic social European values, as embodied in national welfare states?

The first section of this chapter establishes the context in which the Charter was elaborated. European integration has been marked by a certain imbalance between market-making (usually referred to as negative economic integration) and market-redressing (that is, social regulation aimed at framing markets, and eventually rectifying its distributive outcomes). This is especially striking given that all Member States are mature welfare states, characterised by a balance of market-making and market-redressing at the core of their socio-economic structure. The second section aims at making legal and normative sense of the provisions on 'rights to solidarity' contained in the Charter. The specific status of rights to solidarity, but also of the right to private property, is considered. The Charter reflects somehow the present imbalance of European integration; the literal tenor of the provisions of social rights is weaker than that of the right to private property; however, a contextual interpretation of the provisions of the Charter reveals that social policies might be reinforced, not weakened, by the Charter. Thus, 'rights to solidarity' might be affirmed as the canon of arguments that require balancing social rights and economic freedoms. The third section deals with the invocation of social rights in the process of constitution-making. Finally, some conclusions are put forward.