The European Pillar of Social Rights and the European Social Charter

1. INTRODUCTION

Gothenburg, 17 November 2017. After several trying years of social depression in the European Union (EU) and the Western world more generally, the Presidents of the European Commission, European Parliament, and European Council sign a ‘solemn’ Inter-Institutional Proclamation on the European Pillar of Social Rights.^[1] As stated by one commentator ,it ‘represents the most encompassing attempt to raise the profile of social policy in two decades, since the inclusion of the employment chapter in the Amsterdam Treaty and the formulation of the EuropeanEmploymentStrategy’.^[2] This high-profile political reaffirmation of a broad set of social rights and principles could, in line with the Rome Declaration,^[3] be taken as an indication that in the future post-Brexit EU27, there may be a stronger commitment to EU social policy. The times, it seems, they are-a-changing…

Yet, no matter how ‘solemnly’ proclaimed, the Pillar is not legally binding. This means that individuals cannot directly rely on it in court proceedings should they consider that the ‘rights’ contained in the EPSR have not been respected, nor can the European Commission initiate infringement proceedings against Member States where they fail to live up to the Pillar’s standards. This is a slightly uncomfortable reality, which some could consider a disappointment especially in light of the prominent reference to social rights : the Pillar spites its own name. As further explained in Section II below, it would, however, be misguided to focus only on the lack of direct legal enforceability of the EPSR, as it would fail to appreciate its real legal and political importance, which is more subtle and indirect. The EPSR’s significance lies in its programmatic nature, and it will only show its true worth in its implementation. The precedent of the 1989 Community Charter on the Fundamental Social Rights of Workers with its accompanying Action Programme should be recalled in this context : an important part of the EU social acquis was progressively adopted on that basis. In the context of the Pillar, a range of important measures has been proposed as part of this new social action plan for Europe, some of which have already been successfully adopted.

From the perspective of other prominent instruments containing social rights, such as the EU Charter and the ESC, the EPSR may at face value appear, at best, a rather meaningless replication and, at worst, a harmful dilution and a ‘crowding out’. However, as explained in Section III below in further detail, such a hostile stance would be myopic, in that it does not appreciate that the EPSR actually acts as a catalyst for (the rights contained in) these other instruments. In a certain sense, the EPSR’s legal value is vicarious : it operates indirectly through other social rights instruments and encourages their actual implementation and expression. The EU Charter does not apply to the Member States unless they act in the scope of EU law. This means that the social rights contained in the Charter are dependent on being given further expression in legislation, and this is precisely what the Pillar’s ‘implementation process’ is contributing to. The ESC, in turn, has not been fully ratified in both its incarnations by all the EU Member States, and furthermore does not benefit from the same enforcement mechanisms that rights contained in EU law do. The European Commission’s monitoring of the implementation of the Pillar is encouraging the Member States to ratify where they have not done so, and to apply where they have, the ESC, and it is contributing to making the rights contained in the ESC a reality through the adoption of (enhanced) social protection in the EU Member States. It is the Pillar’s indirect nature of an action programme rather than a rights’ charter, that makes it instrumental for the EU Charter and ESC rather than a dangerous duplication, which it could have been in case it had been legally binding in se.

2. WHAT(EVER) IS THE PILLAR AND ITS PURPOSE ?

A. A Pillar of (Non-)Rights ?

In a narrow sense, the Pillar is a set of twenty social rights and principles, categorized in three chapters. Chapter I entitled ‘Equal Opportunities and Access to the Labour Market’ comprises the right to education, training and life-long learning, equal treatment between men and women, non-discrimination on grounds of gender, racial or ethnic origin, religion or belief, disability, age or sexual orientation, and ‘active support to  employment’. Chapter II is called ‘Fair Working Conditions’ and features the rights to ‘secure and adaptable employment’, fairwages, information about employment  conditions and protection in case of dismissals, social dialogue and involvement of workers, work-life balance, and healthy, safe and well-adapted work environment and data protection. Chapter III entitled ‘Social Protection and Inclusion’ contains the rights and principles concerning childcare and support for children, social protection, unemployment benefits,minimum income, old-age income and pensions, health care, inclusion of people with disabilities, long-termcare, housing and assistance for the homeless, and access to essential services.^[4]

The Proclamation states that the aim of the Pillar ‘is to serve as a guide towards efficient employment and social outcomes when responding to current and future challenges which are directly aimed at fulfilling people’s essential needs, and towards ensuring better enactment and implementation of social rights’.^[5]  It ‘should be implemented at both Union level and Member State level within their respective competences’,^[6] and ‘does not entail an extension of the Union’s powers and tasks as conferred by the Treaties’.^[7] As stated above, the Pillar takes the legal form of a proclamation and as such is not legally binding.^[8] This means that the rights and principles it features are not, by virtue of the Pillar, enforceable against either the EU Institutions or the Member States. Nor should they be. Virtually all of the rights and principles it contains, are already legally binding on the EU and/or the Member States by virtue of the EU Charter of Fundamental Rights, the ESC as well as the various Conventions of the International Labour Organization (ILO). It would have been a harmful duplication to create another binding social rights instrument at EU level with overlapping content. The Commission’s explanations indicate that the Pillar ‘draws on’ these pre-existing instruments and that nothing in it shall be interpreted as restricting or adversely affecting them.^[9] The Pillar reaffirms the rights already present in the EU and in the international legal acquis and complements them to take account of new realities. As such, the Pillar does not affect principles and rights already contained in binding provisions of Union law : by putting together rights and principles which were set at different times, in different ways and in different forms, it seeks to render them more visible, more understandable and more explicit for citizens and for actors at all levels. In so doing, the Pillar establishes a framework for guiding future action by the participating Member States.^[10]

The Pillar thus reaffirms the political commitment of the EU institutions, including the Member States in the Council, to deliver on these social rights and principles as contained in different pre-existing social instruments and reiterated in the EPSR.

While in a legal sense, the Pillar cannot directly affect the meaning of these rights and principles as featured elsewhere, it does provide an indication of how the political institutions at present understand these rights and principles and how they thus may give effect to them in the context of their current policies. Since especially fundamental social rights depend to an important extent on the legislator and policymaker to give them full effect, the Pillar could be taken as an indication on the content and direction of the ‘implementation’ of the rights and principles it contains. Moreover, the Court of Justice of the European Union (CJEU), as well as national courts, may use the Pillar as a source of interpretation of the rights and principles as laid down in other instruments, especially where a new act, at EU or national level, refers to the Pillar in the preamble or in the preparatory works.^[11]

B. The Pillar’s Implementation Process: Making Social Rights a Reality

The ‘implementation’ of the Pillar through new legislative and other acts should be considered the most important part of the Pillar initiative. The overall ‘Pillar package’ features a range of legislative and non-legislative proposals, some pre-dating the Pillar and some amending existing law and/or policy, and some new. As such, while the precedent of a ‘proclamation’ was set by the EU Charter of Fundamental Rights, the format of the overall Pillar initiative is more akin to the Community Charter of the Fundamental Social Rights of Workers, which is a political declaration signed in 1989 by (then) all the EU Member States except the UK, which signed in 1997.^[12] The Community Charter is declaratory, but it is a source of inspiration for the CJEU, especially in the interpretation of the rights featured in the EU Charter of Fundamental Rights that are based on rights first set out in the Community Charter.^[13] Most importantly, many rights listed in the Community Charter were implemented in secondary law through the Social Charter Action Programme,^[14] such as on occupational health and safety, written statement, posted workers, working time, pregnant workers, and younger workers. The broader Pillar initiative could be likened to such an action plan.

The 2018 Commission Staff Working Document ‘Monitoring the Implementation  of the European Pillar of Social Rights’ provides the general overview of what can be  considered part of the broader Pillar initiative.^[15] The document lists per right/principle the most relevant existing measures at EU level, the ongoing and new initiatives, as well as national measures that are relevant ‘in the spirit of the Pillar’. It does not identify specifically which instruments are considered to be an implementation of the Pillar, but it would seem to include most of the measures that are featured in the category entitled ‘recentandongoinginitiativesatEUlevel’. This comprises a few dozens of EU actions, ranging from : country-specific recommendations on minimum wages, to a proposed Regulation on a pan-European Pension Product ;^[16] and from a proposal for a Recommendation on promoting common values, inclusive education, and the European dimension of teaching,^[17] to a proposal for a Regulation to strengthen EU cooperation on health technology assessment.^[18]

Of course, not all of these measures are equally integral to the Pillar. The proposal on a recast of the Electricity Directive,^[19] which is mentioned in relation to Principle 20 on ‘Access to Essential Services’, is arguably not as central to the Pillar project as the Directive on Predictable and Transparent Working Conditions. And a number of measures that are thematically closely connected to the Pillar, such as the equality directives,^[20] are stalled legislative proposals that (long) pre-date the Pillar. Can these therefore really be said to be an ‘implementation’? The mere fact that the Pillar post-dates these proposals should arguably not prevent them as being conceptualized as part, or even an implementation, of it. In the case of the Charter of Fundamental Rights, some of the social directives that pre-dated it have been considered to give expression to a Charter right and have been interpreted in light of it.^[21] Moreover, if these pending proposals are successfully adopted now, post-Pillar, it arguably proves the usefulness of the latter in unlocking the blockages. One of the Pillar’s main values could indeed be to facilitate the advancement of the social acquisby providing political leverage : it increases the cost of opposing or down-levelling social initiatives for all institutions that have ‘solemnly’ proclaimed their attachment to these values, which includes the Member States in the Council.

It is also true that many of the central Pillar implementation initiatives are ‘repackaging’ exercises. The two main achievements to date, to wit the Work-Life Balance Directive and Predictable and Transparent Working Conditions Directive discussed below, as well as the Social Scoreboard, are not entirely new but replace the existing Maternity Leave and Written Statement Directives and the Scoreboard of Key Employment and Social Indicators respectively. Is the Pillar therefore merely putting old wine in new bottles ? The extent to which these initiatives develop new rights and policies should not be underestimated. The mere fact that they would replace existing measures does not detract from their value either in a self-standing sense or as part of the Pillar project. It could be argued that for every measure -whether old or new, whether closely or loosely connected to the Pillar’s themes – the fact that it is mentioned in the Pillar’s context is relevant, because the association to it may have political consequences for negotiation, adoption and, subsequently, interpretation. Furthermore, the Pillar package does also introduce a number of novelties, such as the proposal for a European Labour Authority^[22] and the initiative on Access to Social Protection for Workers and the Self-Employed.^[23]

C. The Pillar’s Main Achievement (To Date): Two New Social Directives

Two major milestones in the on-going Pillar process have already been achieved. The EU has adopted a new Work-Life Balance Directive 2010/18/EU, to replace Directive 92/85/EEC on maternity protection and the 2010 Parental Leave Directive, as well as Directive 2019/1152 on Predictable and Transparent Working Conditions, replacing the Written Statement Directive 91/533/EEC. Considering the time-consuming nature of the EU legislative process generally, and the specific difficulties in the adoption of social legislation over the past years,^[24] the swift adoption of these two measures in the wake of the EPSR cannot but be considered remarkable.

The Work-Life Balance Directive takes a broad approach to the issue of gender equality and caring duties, and introduces several important new minimum rights, such as

(i) the possibility for flexible uptake (piecemeal and part-time) of the four months’ individual entitlement to parental leave (Article 5(1) and (6)) and a payment thereof, to be determined by the Member States/Social Partners (Article 8(3));
(ii) allowing the four-months entitlement to be taken up until the child reaches the age of twelve (instead of eight) and making 2 months thereof non- transferable between parents (Article 5(1) and (2));
(iii) an entitlement to ten working days of paternity leave when a child is born, paid at sick pay level (Article 4 and 8(3)); and
(iv) an entitlement to five days of leave per year per worker to take care of seriously ill or dependent relatives (Article 6).

It seems fair to say that this Directive, even if it has watered-down some of the crucial pay entitlements initially proposed by the Commission in its initiative, improves the existing rights and possibilities of millions of women and men in Europe to combine work with family life in many Member States, and as such could be expected to yield significant social (and possibly economic) benefits.

Directive 2019/1152 on Predictable and Transparent Working Conditions reinforces the rights already contained in the Written Statement Directive about the information the worker is entitled to receive in their employment contract by applying them to all workers irrespective of the form of their employment. It determines its scope of application by reference to national employment law but also taking into account the case law of the CJEU,^[25] making it likely that the CJEU will confirm that it applies to all who meet the uniform EU law definition of ‘worker’: i.e. anyone who performs services under the direction of someone else for remuneration.^[26] While the CJEU has traditionally excluded ‘marginal and ancillary’ work from this definition, the Directive makes it clear that in the case of zero-hours or other on-call contracts, no de minimis applies.^[27] This is likely to bring precisely those workers that find themselves in a particularly vulnerable contractual situation into the protective scope of the Directive.

In addition to the more procedural rights on receiving information in writing, the Directive introduces more important substantive elements of protection, defining core labour standards for all workers, particularly for the protection of atypical, casual forms of employment such as on-call work and zero-hours contracts. The Directive lays down a maximum duration for probation of six months (where a probation period is foreseen) in Article 8, the right to reference hours in which working hours may vary under very flexible contracts to allow some predictability of working time (Article 10), the prohibition of exclusivity clauses (Article 9), the right to request a new form of employment (and employer’s obligation to reply) in Article 12, the right to training (Article 13), and strong enforcement mechanisms in relation to the rights provided, including a reversal of the burden of proof in cases of dismissal where the worker has exercised the rights provided for in the Directive (Article 18).

3. THE PILLAR AND THE EUROPEAN SOCIAL CHARTER

A. Clash of International and EU Law in the Area of SocialRights

The Pillar needs to be seen in the context of some tensions between the EU and international social law, including the ESC. As set out in more detail in other contributions to this volume, over the past ten years, before the launch of the Pillar, a number of important tensions emerged in the context of the austerity policy pursued in the economic crisis and in the context of the right to strike.^[28]

The EU’s austerity policy, or, more particularly, the national reforms that had to be executed in countries in return for receiving financial assistance in accordance with Memorandums of Understanding signed by the Commission and the national government, have met the scrutiny of the European Committee of Social Rights.^[29] On several occasions, the Committee has held that the national implementing measures infringed the European Social Charter. It upheld the complaint of Greek trade unions against the introduction of special ‘apprenticeship contracts’ for young workers, which provided for a minimum wage lower than the poverty line, did not provide three weeks’ paid annual leave and did not mandate any type of training, as being contrary to Articles 4(1), 7(7), 10(2) and 12(3) of the Charter.^[30] It also upheld the complaint against compensation-free dismissal during a one-year trial period as in breach of Article 4(4)^[31] and against pension reforms.^[32] With regard to the argument of the Greek government that it had no choice as it was due to comply with the Memorandum, the Committee noted that ‘the fact that the contested provisions of domestic law seek to fulfil the requirements of other legal obligations does not remove them from the ambit of the Charter’.^[33]

It should be noted that not all the measures that were taken by the Greek government in the context of the Eurozone crisis and that were condemned by the European Committee of Social Rights were the direct ‘implementation’ of stipulations by the Troika in the Memorandums of Understanding. For instance, the first Memorandum of Understanding provided that Greece was ‘following dialogue with social partners, government to adopt legislation on minimum wages to introduces sub-minima for groups at risk such as the young and long term unemployed’, but it did not specifically require the adoption of the apprenticeship contract with its regressive terms, for which Greece was condemned by the Committee of Social Rights, as such.^[34] Similarly, while the Memorandum did specify that Greece was to ‘extend the probationary period for new jobs to one year’, it did not require these to be without any protection against unjustified dismissal. This means that at least to a certain extent the fault lies with the Member States’ interpretation of the various norms. Nevertheless, in some cases, it would seem that the ‘creditors’ did not realistically leave much room for manoeuvre for the Greek government to comply with its conditionalities and still comply with international social norms. While these conditionalities do not constitute ‘EU law’ stricto sensu, a slightly thicker and less formalistic notion of political responsibility would include the EU’s (and particularly the European Commission’s) role in the formulation of these requirements. They may have lacked binding force, but the impending threat of bankruptcy would seem a more effective enforcement mechanism than any formal judicial proceedings could be. As such, this situation could be considered a de facto outright incompatibility between the EU legal/political order and the international one.

The more recent decision of the European Committee of Social Rights in Greek General Confederation of Labour (GSEE) v Greece^[35] would seem to confirm this approach. It is noteworthy that the European Commission itself, in its observations presented in the case, seemed to accept a direct link between the Eurozone crisis measures and the disputed Greek legislation. The decision notes that the European Commission did not dispute that the legislation adopted between 2010 and 2014 in response to the economic and financial crisis has affected the rights guaranteed by the 1961 Charter and that the ‘legislation reflects the conditions laid down by the “Troika”’.^[36] The European Committee of Social Rights considered that ‘the pressure of the creditor institutions was considerable by prescribing in such detail measures which affected notably the right to work, the minimum wage and working time for both adult and young workers, dismissal protection, information and consultation in the workplace and collective bargaining’ and that these measures ‘resulted in a dismantling of important parts of labour law and the employment system in Greece’.^[37] This, more than in previous decisions, implicates the responsibility of the Troika.

A second problematic case of conflict has arisen in relation to the well-known and controversial judgments of the CJEU in Viking and Laval.^[38] In those cases, the CJEU considered collective action undertaken by workers to protect their interests to be a prima facie restriction on companies’ free movement rights enshrined in the EU Treaties. While in Viking, the CJEU left it open to the national court to consider whether the restriction could be justified, in Laval it held that it could not. The CJEU did refer to the fundamental nature of the right to take collective actionas recognized by the ESC but did not refer to the case law developed by the Committee of Social Rights. In response to the judgment, the Swedish government adopted the so-called Lex Laval, a package of measures to bring Swedish law into compliance with EU law. In response to the ensuing complaint, the European Committee of Social Rights stated that the facilitation of free cross-border movement of services and the promotion of the freedom of an employer or undertaking to provide services in the territory of other States— which constitute important and valuable economic freedoms within theframework of EU law—cannot be treated,from thepoint of view of the system of values, principles and fundamental rights embodied in the Charter, as having a greater a priori value than core labour rights, including the right to make use of collective action to demand further and better protection of the economic and social rights and interests of workers.^[39]

B. The Pillar as an Olive Branch and Catalyst

The Pillar does not specifically address or resolve either of these two conflicts, as it does not directly and specifically pertain to Euro-crisis governance or the qualification of collective action as a restriction oft he internal market freedoms. It nevertheless deserves to be noticed that the Social Scoreboard does apply to the general framework of economic governance (the European Semester), helping to further ‘socialize’ it,^[40] and that the EU has revised the controversial Posting of Workers Directive which was at issue in the Laval case. There has been some ambiguity as to whether the revision of the Directive, to ensure the principle of ‘equal pay for equal work’, is considered part of the Pillar. The proposal was presented by the Commission in its ‘Mobility Package’ on the same day as the Pillar in its ‘Social Package’, but it did not seem to be conceptualized as a part of it. Of course, in overall terms, both the launch of the Pillar and the revised Posting Directive were part of former Commission President Juncker’s commitment to social values and to deliver on election promises made to ensure a ‘Social Triple A Rating’ for Europe. Accordingly, several stakeholders and politicians explicitly linked the Pillar and the revision of the Posting Directive,^[41] and this link is also underlined by the fact that the Council reached agreement on the Directive on the same day as it approved the Inter-Institutional Proclamation on the Pillar.^[42] The revised Directive has now been successfully adopted,^[43] which takes away some of the social ‘sting’ of the Laval doctrine, by allowing more space for the imposition of national wage standards in the context of the temporary provision of labour across borders in the internal market. It does not however reconsider the balance between the right to strike and collective bargaining on the one hand and the EU economic freedoms, as maligned by the Committee.

Still, the Pillar should be seen as an attempt by the EU to quell the concerns that have arisen in relation to these conflicts and constitutes an important olive branch that the EU has extended to the Council of Europe (as well as the ILO). The Council of Europe’s Secretary-General  published an Opinion on the Commission’s initiative to establish the Pillar, addressing it to the President of the European Commission, on 2 December 2016.^[44] In his letter, after mentioning the increasing conflicts, the Secretary-General welcomed the Pillar to ‘help consolidate the synergy between the standard-setting systems that protect these fundamental rights across the continent to ensure that they are effectively implemented by the states concerned’. He also emphasized that legal certainty and coherence between European standard-settingsystems protecting fundamental social rights needed to be promoted, ensuring that the European Social Charter, ‘the Social Constitution ofEurope’, is central to the Pillar.Concretely, he recommended that ‘the provisions of the [Revised ESC] should be formally incorporated in the [Pillar] as a common benchmark for states inguaranteeing these rights’ and ‘the collective complaints procedure, based on the Additional Protocol to the [ESC], should be acknowledgedbythe[Pillar]forthecontributionthatitmakestotheeffectiverealization of the rights established in the Charter and to the strengthening ofinclusive and participatory social democracies’.

His requests have not (yet) been met entirely. Still, the Pillar extensively engages with the international social acquisand the ESC specifically. The 2016 Staff Working Document on the EU social acquisaccompanying the Commission’s initial consultation on a European Pillar of Social Rights devoted a subsection to ‘socialrights and principles as laid down in international law’,^[45] the 2017 Commission Communication establishing a Pillar of Social Rights stresses that ‘the Pillar takes direct inspiration from the existing wealth of good practices across Europe, and builds on the strong body of law which exists at EU and international level’ mentioning particularly the ESC (and the ILO),^[46] and the preamble of the Inter-Institutional Proclamation references the ESC.^[47] More concretely, in the 2018 Staff Working Document ‘Monitoring the Implementation of the European Pillar of Social Rights’, the specific Pillar principles are connected to relevant international law, and the Pillar is used as a catalyst for Member States’ engagement with these international measures. Most importantly, in relation to Principle 12 on Social Security, the Commission suggests that Members ratify/apply ‘the Revised European Social Charter, and may review the reservations made for some Articles of the revised European Social Charter’.^[48] This approach, especially if extended in the future of the EPSR follow up process, may contribute to the full ratification of the ESC by all the EU Member States and could thereby significantly raise its profile and impact.

Indeed, it is argued here that making a contribution towards the full ratification of all provisions of both incarnations of the ESC by all EU Member States is, at this stage, the most important contribution that the EPSR could make to impact and stature of the ESC. Arguably, such full ratification constitutes the only really effective doorway to some of the other proposals that have been made to further raise the profile of the ESC in the European Union, such as using the EPSR follow-up to reference the interpretations given to the ESC by the European Committee of Social Rights, aligning the status of the ESC with that of other international human rights instruments in the case law of the CJEU, and using the ESC as an element in the EU’s impact assessments for new legislative initiatives.^[49] The Member States’ uneven acceptance of the various ESC provisions and the collective complaint’s procedure greatly undermines the ESC’s claim for its rights – and the Committee’s interpretation thereof – to be accepted as general principles of EU law and to accord it a(n even) more prominent role. Of course, the EU legal framework already explicitly accommodates, and thus to a certain extent internalizes, international social instruments such as the ESC. The ESC is referenced in the preamble of the Treaty on European Union and Article 151 TFEU, and further mentioned in the preamble of the EU Charter of Fundamental Rights, which ‘reaffirms’ ‘the rights as they result, … from the Social Charters adopted by the … Council of Europe’. Although the non-regression clause of Article 53 of the Charter only explicitly mentions the European Convention on Human Rights and not the ESC, the CJEU does refer to the ESC as well as the case law of the Committee of Social Rights as a source of inspiration for the interpretation of EU law.^[50] This seems especially warranted where secondary EU law makes explicit reference to the ESC.^[51] For the EU legal order generally, and the CJEU specifically, to go further than this current accommodation, it would seem that an increased, if not full, uptake by the EU Member States would be crucial.

4. CONCLUDING REMARKS

The year 2020 brings a new Commission, which will have its own take on the importance and meaning of the European Pillar of Social Rights. While past achievements, such as the adoption of new social directives and the renewed prominence attached to the ESC, deserve to be recognized, there is still much untapped potential in the Pillar project. Apart from the important pending equality directives, the EPSR brings both scope and hope for the adoption of additional EU social measures, addressing the rise in atypical employment and precariousness, as well as for a stepped-up enforcement of the existing social acquis. Furthermore, it is to be hoped that the yearly monitoring of the implementation of the Pillar by the European Commission is continued, and that it will increasingly integrate the ESC, like other international instruments such as the ILO Conventions, into the assessment – encouraging the EU Member States to fully ratify both incarnations of the ESC. After the unfortunate divergence over the past decade, it can be hoped that the Pillar marks a return to the previous more respectful and fruitful interaction between these overlapping legal orders, which both have much to lose from conflict and to gain from collaboration.

All this is desirable from the perspective of a more social Europe, of course. But it also seems important from a democratic perspective. A robust and well-functioning democracy needs, as a pre-condition, a certain level of social protection and equality. Without that, neither the process nor the outcome of majoritarian decision-making can be called either democratic or legitimate. That, arguably, is the primary function of constitutionalized social rights that condition the legislative process at national and European level. At the same time, it is arguably the only extent to which they should be constitutionalized ; the crucial but limited purpose for which they should be removed from the ordinary process of democratic decision-making. For it should be emphasized that socio-economic issues are the bread and butter of politics, are highly salient and that therefore sufficient space should be left for the people to determine concretely, in a particular place and time, what they consider to be the place of the market and the economy in society.^[52] This is part of the genius of the EPSR : it (re-)establishes the legislative process as the main instrument through which social rights – whether protected by virtue of EU, ESC or international law – are given concrete shape and reality. Above all, the Pillar has the potential, already partially realized, to empower the European legislator and to revive the use of the Social Policy Title in the TFEU and thereby the Community Method for social decision-making. That is a victory on both the social and the democratic front.