Book Review: Economic and Social Rights under the EU Charter of Fundamental Rights. A Legal Perspective
| Date | 01 June 2004 |
| Author | Helen Meenan |
| Published date | 01 June 2004 |
| DOI | 10.1177/1023263X0401100209 |
| Subject Matter | Book Review |
Book Reviews
11 MJ 2 (2004) 215
Tamara Hervey and Jeff Kenner (eds.), Economic and Social Rights
under the EU Charter of Fundamental Rights. A Legal Perspective, Hart
Publishing, 2003, xliv + 299 pages, hardback, £ 45.
This work is an ambitious project, which puts in context the highly challenging field of
Economic and Social rights within the EU Charter of Fundamental Rights (EUCFR),
EU law and international human rights law, in particular. It grapples with a variety of
research questions and themes. To include the historical differences between economic
and social rights on the one hand and civil and political rights on the other in these
various regimes, and the ‘status’ and ‘elevation’ of economic and social rights in the
EUCFR. At the outset, the editors pose the question whether the inclusion of economic
and social rights in the Charter signals a change in status of values such as community
and solidarity within the EU’s legal order? An examination by them of the various
contributions (by fourteen authors in 12 chapters) reveals mixed responses to this
question. This too establishes a theme that can be ascertained from the book as a whole,
that is the differences in expression and potential impact between the various economic
and social rights under consideration and the mixed approaches taken by the authors.
The book covers a broad range of rights and issues within solidarity, equality and non-
discrimination through a detailed treatment of gender equalities (Costello), education
and multiculturalism (Wallace and Shaw) and the reconciliation of family and work
(Barbera). Overarching chapters deal inter alia with the constitutional impact of the
Charter on the EU (Maduro) and a ‘new governance’ approach to economic, cultural
and social rights in the EU (Bernard). Some ‘fundamental rights’ are identified as
vertical or horizontal (Bell), collective rights (Ryan), individual rights, principles and
objectives (Kenner). Kenner finds that the distinction between rights and principles is
far from clear. He also highlights the significance of the language used in relation to
economic and social rights in the EUCFR. For instance, the Charter sometimes grants a
right, at other times it ‘recognises and respects’ entitlements and at others still it
‘recognises and respects’ a particular right. Kenner points out that the right to social
security and assistance falls into the middle category and is a matter of national
competence, and therefore it is not intended to be justiciable. He thus raises another
theme that weaves through the book namely, the potential legal effect and justiciability
of the rights in the EUCFR. This attempt to gut the Charter is one of the strengths of this
work and is perhaps best represented in the chapters by Bell, Kenner, Ryan and Tooze.
In the end, Kenner concludes that the Charter contains a highly selective and incomplete
set of ‘fundamental social rights’.
A number of chapters have a more theoretical focus. Deakin and Brownes’ Social
Rights and Market Order: Adapting the Capabality Approach, examines conceptions of
social rights put forward by Marshall, Hayek and Sen and looks at the relationship
between social rights and European market integration. It is a hugely interesting section
but has not identified, by its own admission, the content of particular social rights
against the capability approach it sets up. In short it does not engage with the Charter
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