The EU Constitution: What Went Wrong for ‘Social Protection’?
| Published date | 01 March 2006 |
| Date | 01 March 2006 |
| DOI | 10.1177/138826270600800102 |
| Subject Matter | Article |
THE EU CONSTITUTION: WHAT WENT WRONG
FOR ‘SOCIAL PROTECTION’?
MARIA KORDA and PAUL SCHOUKENS*
Abstract
In October 2004, the ‘Treaty establishing a Constitution for Europe’ was signed by
European leaders. This new EU Treaty, was supposed, after its ratification by the 25
EU Member States, to consolidate and replace all the disparate European Treaties that
have accumulated over the years. Some people argued that this new European treaty
was a major step forward in the construction of a social Europe. However, after two
member states rejected the new Treaty, the future of the new Constitution is unclear. In
this article, the authors investigate the extent to which the European Constitution
introduced new competencies in the field of social protection. Were European
competencies in the field of social protection enhanced? Or were they restricted? In
order to give answer these questions, existing EC/EU treaties are compared with the EU
Constitution, specifically with regard to those competence grounds that are directly or
indirectly relevant for the enactment of social security measures. In order to underpin
this comparison, the authors analyse the preparatory activities for the EU Constitution
that took place in the European Convention on the Future of Europe.
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European Journal of Social Security, Volume 8 (2006), No. 1 7
* Maria Korda is currently working as a trainee in the Council of the EU/DG G II Employment and
Social Policy. Paul Schoukens is Professor of European Social Security Law in the Faculty of Law,
Katholieke Universiteit Leuven. Address: Institute of Social Law, Tiensestraat 41, B-3000 Leuven,
Belgium; e-mail: Paul.Schoukens@law.kuleuven.be This article is an elaboration of Maria Korda’s
thesis entitled ‘The EU Constitution: more competences for social protection?’ which was submitted
for a Master’s Degree in European Politics and Policies at K.U. Leuven. The authors would like to
thank two European law academics who were involved in preparatory work for the EU Constitution
and who were willing to be interviewed on the implications of the EU Constitution for social
protection, namely Prof. dr. Danny Pieters, who teaches Comparative and European Social Security
Law at K.U. Leuven and who was a substitute member of the European Convention on the Future of
Europe, and Prof. dr. Koen Lenaerts, who is Professor of European law at K.U. Leuven and a Judge of
the Court of Justice of the European Communities. Both were interviewed during the summer of
2005 and are referred to in the text by indicating the date of the interview (respectively 20.07.2005
and 02.08.2005). In addition, the authors would like to thank Assistant Prof. George Katrougalos,
Associate Prof. Xenophon Contiades, Dr. Gert Verschraegen, Assistant Prof. Vassilis Hatzopoulos
and Assistant Prof. Dimitris Venieris, for their suggestions and critical support.
8Intersentia
1. INTRODUCTION
The signing of the EU Constitutional Treaty, in October 2004, caused great elation.
There was a sense of fulfilment and excitement, particularly regarding the extensive
legal and procedural foundation in the new Treaty. Furthermore, it was broadly
claimed that the Treaty was a major success in every sphere of European policy. In
response to this we began to wonder what kind of position social policy affairs and, in
particular, social protection,
1
have in the EU Constitutional Treaty. This is of
particular interest bearing in mind some of the phrases used, such as: ‘Our
Constitution . . . is called a democracy because power is in the hands not of a minority
but of the greatest number’,
2
‘the extension of qualified majority voting in the Council,
will make it easier for European decisions to be taken in the several policy fields . . .’,
‘the incorporation of the Charter of Fundamental rights of the Union in the EU
Constitutional Treaty, declares indivisibility of political, civil, economic and social
rights as well as automatically postulates the legally binding character of the Charter’.
3
We wondered how Social Europe would fare under the forthcoming Constitution.
This is a fundamental question, especially if one reflects that the commonly
expressed wish to for a ‘United Europe’ can only be achieved on the basis of strong
economic foundations and equally durable social underpinnings. That is why we
decided to examine the alterations, modifications as well as amendments that the
Treaty establishing a Constitution for Europe would bring to the European Union
competence in the field of social protection. Is the EU Constitution going to
strengthen the ‘social face of Europe’? Will there be more competences for social
protection after the Constitutional Treaty’s ratification by all the EU Member States or
will there be fewer?
The theme is interesting not only for researchers or the general academic
community, but also for European citizens, as social policies affect the progress of the
general European integration process while simultaneously determining ‘how united
Europe can be’. European policy agendas have always included calls for more social
Maria Korda and Paul Schoukens
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1
The reader should bear in mind that social protection is perceived quite differently in each country
and that there is no academic consensus on social security policy. For the purpose of this article, we
understand the concept ‘social protection’ to be a set of rules shaping the solidarity with people
facing (the threat of) a lack of earnings (i.e. income from paid labour) or particular costs, see Pieters
(1993), pp. 1-8. It encompasses schemes covering old age, survivorship, work incapacity,
unemployment, health care, care, family benefits and social assistance. The concepts of social
security and social protection will, for the purpose of this article, be used as each other’s synonym.
For the definition of these concepts see also Berghman, (1996), pp. 9, 12-20.
2
Quotation from the ancient Greek writer Thucydides included in the preamble to the Draft European
Constitution.
3
See European Communities (2004), pp. 9-11, 21-22; Katrougalos (2004), p. 21.
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