The Implementation of Social Rights in Europe

2 Colum. J. Eur. L. 277 (1996)

George S. Katrougalos. Research Fellow, E.P.I.K.A.Y.P. Institute, Athens Law School; Visiting Professor, Roskilde University (1994-1995).

The aim of this article is to present an overview of the implementation of social rights in Europe. The constitutional foundation of these rights and, more generally, of the welfare state, represents one of the most striking differences between the American and the Continental legal system. Many scholars have noted that the European concept of the state is closely related to the Anglo-American notion of the welfare or administrative state, and the Commission of the European Communities seems justified in claiming that there is a distinct European social model. The former president of the Commission, Jacques Delors, defined it as “a mixed economy, with participation of all citizens, that combines the market with the state steering and the social dialogue.”

This difference is explained both by the divergences in the legal cultures that shaped these models, and the disparate processes of state formation, particularly as they influenced the establishment of welfare states. An important terminological distinction must be made, however, between the terms “welfare state” (Wohlfahrtstaat, état-providence) and “social state” (Sozialstaat, État social). Although they are used as interchangeably in colloquial practice, they are fundamentally different in nature. The concept of the welfare state describes the type of state which evolved in all developed countries during the twentieth century, as a response to the functional necessities of the modem capitalist economy. In contrast, the notion of the “social state” embodies a leading normative principle that constitutionalizes governmental obligations in the fields of social and economic policy. Therefore, the social state is the juridical form of organization of one type of welfare state, the one that implies a guiding, constitutional role for public power in economic and welfare matters, in order to maintain social security and to minimize extreme social differences.

European constitutional theory accepts that structural principles like the “rule of law” or the “Social State” can be deducted by the overall corpus of the constitutional legislation, even without an explicit references to them. Almost all countries in Western Europe (with the exception of the United Kingdom and, to a lesser degree, Ireland) are “social states,” not only because they have explicitly adopted the principle of a “Social State’s Clause,” but also, and more often, by incorporating a list of social rights to their Constitutions.

In contrast, social policy has no constitutional foundation in the U.S. In earlier jurisprudence, social welfare was usually regarded as a function of largesse, or as a kind of public charity. Although the most “socially progressive” decision of the U.S. Supreme Court, Goldberg v. Kelly, recognized some procedural guarantees and held the termination of welfare benefits to be unconstitutional in the absence of due process of law, it did not recognize any substantial obligation of the State to provide welfare. Thus, in the U.S., there is an absence of positive constitutional rights in the arena of social policy, a phenomenon that reflects the fundamental differences in the balance of power between social actors in the U.S. and Europe. In the rare cases that the Supreme Court has accepted the existence of positive obligations of the State in the social sphere, it has favored the interests of employers over those of workers. In Truax v. Corrigan, for instance, it declared unconstitutional the laws forbidding injunctions against picketing by striking workers, on the ground that they denied employers due process of law. In other words, the Court construed the process clause, despite its negative formulation, to impose the positive obligation of protecting employers against the acts of private parties.

A radically different situation exists in continental Europe. There, social rights are protected to varying degrees by three different systems, the liberal, Continental and Scandinavian models.”