Does the EU Charter of Fundamental Rights have Added Value for Social Security?
| Author | Frans Pennings |
| DOI | http://doi.org/10.1177/13882627221095105 |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| Subject Matter | Articles |
Does the EU Charter of
Fundamental Rights have Added
Value for Social Security?
Frans Pennings
Professor of Labour Law and Social Security Law at UtrechtUniversity, Newtonlaan
201, 3584 HT Utrecht, Netherlands
Abstract
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 con-
clusion 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 provi-
sions 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.
Keywords
Charter of Fundamental Rights, social security, Court of Justice, fundamental rights, horizontal
effect
Corresponding author:
Frans Pennings, Professor of Labour Lawand Social Security Law at Utrecht University, Newtonlaan 201, 3584 HT Utrecht,
Netherlands.
Email: f.pennings@uu.nl
Article
European Journal of Social Security
2022, Vol. 24(2) 117–135
© The Author(s) 2022
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DOI: 10.1177/13882627221095105
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1. Introduction
The Charter of Fundamental Rights of the EU requires, inter alia, the recognition and respect of the
entitlement to social security and social services (Article 34).
1
Other Charter provisions may also be
relevant to social security and social assistance, such as the provision that human dignity is inviol-
able, the right to property, the prohibition of discrimination, the guarantee of equality between men
and women and the right to freedom of expression.
Since 1 December 2009, the date of entry into force of the Treaty of Lisbon, Article 6(1) TEU
has given the Charter of Fundamental Rights of the EU the same value as the Treaties, thus
expressly granting it the status of primary EU law. In view of this upgrade and a couple of
recent judgments of the Court of Justice in which the Charter was interpreted,
2
the question of
the added value of the Charter for social security deserves a thorough examination.
A recent contribution on this topic is contained in Issue 24(1) of this journal by Jaan Paju, who
essentially investigated whether Article 34 has led the Court of Justice to accept social security and
social assistance as fundamental rights. He came to the conclusion that the Charter ‘cannot in itself
give rise to any substantive social security rights beyond those stemming from Regulation 883/
2004’. He therefore doubts whether the Charter’s principles of social security can play a role
and is quite pessimistic on the added value of this document. Apparently, in answer to the question
in the title of his contribution, he is of the view that the Charter ‘does not deliver’.
Although it is certainly interesting to examine whether social security and social assistance enti-
tlements can be created on basis of the Charter, being a fundamental rights document, the conclu-
sion that this is not the case can by no means come as a surprise. After all, several provisions of the
Charter, including Article 34, contain the clause that the right is recognised and respected ‘in
accordance with the rules laid down by Union law and national laws and practices.’Its Article
51(2) provides that ‘the Charter does not extend the field of application of Union law beyond
the powers of the Union or establish any new power or task for the Union, or modify powers
and tasks as defined in the Treaties’. The strict limitations to the applicability of the Charter set
by the legislature have seriously restricted the Court of Justice in basing new entitlements for clai-
mants or obligations for States on the Charter.
Therefore, the question of the added value can, or perhaps even should, be examined in another
way. Instead of expecting fundamental rights to flow from Article 34, this contribution will analyse
judgments of the Court in order to determine whether interpretations are made that cannot be found
in other EU instruments and thus have added value. This examination is not restricted to Article 34,
but also looks at how other Articles of the Charter are interpreted in social security cases and the
meaning they have in these cases.
This approach may be seen as modest by those who expected Article 34 to become a source of
fundamental rights. However, outcomes of this examination are valuable since they can contribute
to a maximumal use of the Charter to realise a social Europe, inter alia, by showing how it can be
addressed in national court procedures and in future requests for preliminary rulings of the Court of
Justice.
1. [2000] OJ, C 364, https://www.europarl.europa.eu/charter/pdf/text_en.pdf. The website of the European Union Agency
for Fundamental Rights (FRA) is very useful, listing case law on each of the Charter provisions, https://fra.europa.eu/en/
caselaw-reference/cjeu-case-c-35615-judgment.
2. For older literature see Ward (2004), Kailia (2012), Lenaerts (2012), Lock (2019) and Zetterquist (2011).
118 European Journal of Social Security 24(2)
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