The Platform of European Social NGOs is an association of 38 European non-governmental organisations, federations and networks that work in the social sector and uphold the interests of a wide spectrum of European civil society. The Platform includes associations of organisations representing women, older people, people with disabilities, unemployed people, migrants, people living in poverty, gays, lesbians, young people, children and families. The member organisations also include NGOs working on social issues such as social justice, homelessness, health and racism.

The Social Platform welcomes the constitution of the Working Group on Social Issues as a recognition that the new European Union must be a social Europe.

This working paper is offered as a contribution for the consideration of the Working Group. It proposes draft Articles relating to each of the seven questions within the mandate of the Working Group, together with brief justifications for each draft Article. The final section makes proposals in two additional areas which we believe are intertwined with social questions: EU citizenship rights, and the integration of the EU Charter of Fundamental Rights within the new Treaties.

Introduction

Social NGOs believe that the work of the Convention on the Future of Europe provides a unique opportunity to strengthen the social dimension of the European Union and to rebalance the social and economic values and objectives of the European Union as a community of values.

Social Policy should no longer be the Cinderella of the European Union, as objectives and values are rethought anew, and the piecemeal approach of the original treaty structure is rejected in favour of a comprehensive new constitutional system. In the ‘new’ European Union there needs to be a clear and continuous thread which links together the aspirations of the Union, its member states and its peoples, expressed in the Preamble to the Treaty, and in the values and objectives set out in the new Treaty. These aspirations then have to be translated into the competences and legal bases which are provided for policy-making and the institutional structures which facilitate effective and legitimate policy-making.

At the same time as embracing the challenge of the new, it is important to preserve the many positive aspects of the so-called acquis communautaire, including the values statements in relation to social justice, social cohesion, gender equality, non-discrimination, social protection, quality of life, employment and social values generally which have gradually been embedded in the EC Treaty and the Treaty on European Union.

Whilst the Social Platform supports the creation of the Working Group on Social Europe, it is also aware of the need for an ‘integrated’ approach to developing and drafting the new Constitutional Treaty. Social questions are not limited to very specific parts of the Treaty, but are diffused much more widely. Questions of substance are closely related to institutional questions.

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1. Article 2 (values of the Union): proposed text

‘The Union is based on human dignity and social justice, respect for human rights and fundamental freedoms as an indivisible set of values, including in particular equality and solidarity, the principle of sustainability, democracy and the rule of law.’

Justification
This article is the cornerstone of the future Union as a community of values. While it is important to be concise and focused in what is cited, there are certain minimum expectations on the part of citizens as well as certain irreducible normative commitments. These are reflected in the list given here, which replicates in some respects the chapters of the Fundamental Rights Charter, but contains a basic expression of social values.

2. Article 3 (objectives of the Union): proposed text

'(1) The Union shall set itself the following objectives:
a) To promote throughout the Union a model of society based on the principle of harmonious, sustainable and balanced social and economic development, including an internal market, an economic and monetary union, full employment and a high level of social protection, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, economic and social cohesion and solidarity among Member States and their regions, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, a high level of health protection, the eradication of poverty and exclusion, and the principle of equality with respect in particular to sex and gender identity, racial, ethnic or social origin, nationality, religion or belief, sexual orientation, disability and age;
b) Objectives in the external sphere: while not wishing to suggest a precise wording in relation to a policy matter which is not its direct concern, the Social Platform would support objectives in relation to social and economic justice in a global context and which focus primarily on the promotion of peace and prevention of conflict];
c) To maintain and develop throughout the Union a balance of freedom, security and justice for the benefit of all residents of the Union, based on the free movement of persons assured in conjunction with appropriate measures with respect to external border controls, asylum and immigration and the establishment of policies to prevent and combat crime;
d) To maintain in full the acquis communautaire and build on it.

(2) In implementing these objectives the Union shall have regard in particular to the following principles of action:
- The need for an approach which ensures a sustainable balance of social and economic activities on the part of the Union, to protect the interests not only of the Union, the Member States, citizens and residents, but also the requirements of global sustainable development;
- The promotion and development at the appropriate level of high quality services of general interest as instruments of social, economic and territorial cohesion;
- The need to assess in advance the possible impacts of all policies with a view to eliminating all forms of inequality, based in particular upon sex and gender identity, racial, ethnic or social origin, nationality, religion or belief, sexual orientation, disability and age;
- The need to assess in advance the possible impacts of all policies with a view to combating poverty and social exclusion and with a view to ensuring the protection of vulnerable groups, including elderly persons and persons with disabilities and of promoting the best interests of children;
- The requirements of the principles of good governance, including in particular openness, transparency, accountability and representative and participatory democracy.'

Justification
The objectives of the European Union need to be examined as a whole, to ensure the coherence of objectives in the social and economic fields by articulating the principles which underpin the social market economy, and in relation to the internal and external spheres of action. Unlike the existing EC Treaty, the introductory sections of the new Constitutional Treaty should not be drafted in such a way as to privilege economic objectives (internal market, economic and monetary union) over social objectives but rather balance the two areas which, are anyway, interdependent.

3. The Union's Competences

Rather than pressing for specific new competences, the Social Platform places the greatest weight on the clarification and rationalisation of the existing set of competence statements. It is important that these reflect the values and objectives laid down for the Union in Articles 2 and 3.

For that reason, it does not support the ‘lists of competences’ approach based on different categories of competence (exclusive competences, shared competences, supporting actions or complementary competences) used in the Praesidium’s Preliminary Draft Constitutional Treaty, but finds the distinctions made in the Feasibility Study drawn up on behalf of Commission President Prodi to be a more helpful way of proceeding. The distinction between principal policies, flanking policies and complementary action provides a more appropriate vehicle for expressing the richness of the Union’s activities, whilst preserving the role of the Member States and protecting the importance of the principle of subsidiarity. In particular, short pen-portraits of specific policies can be included in Part One of the constitutional treaty, allowing more detailed expression to be given already in that early part of the constitutional treaty to the values and objectives contained in Articles 2 and 3, which can then be amplified in more detail in Part Two of the Treaty – which is less likely to be read by ordinary citizens.

4. Open Method of coordination

Insert a new Article 28a in Title V of Part One of the Preliminary Draft Constitutional Treaty: Implementation of Union Action:

‘(1) Where competences are shared between the Member States and the Union or where Union action is complementary to action by the Member States [or alternative wording if Prodi's Feasibility Study schema of flanking policies and complementary action is adopted], the Union’s objectives may be pursued by means of the coordination of national policies, with a view to achieving the compatibility, consistency and, where appropriate, convergence of national policies. Such coordination of national policies shall be without prejudice to the adoption of common policies of the Union in accordance with the provisions of Article 25 and 26, where appropriate competences are conferred on the Union, or to the adoption of other forms of supporting action, as governed by Article 29, and shall seek to encourage cooperation between Member States through initiatives aimed at improving knowledge, developing exchanges of information and best practices, promoting innovative approaches and evaluating experiences.

(2) The coordination of national policies shall be based upon the establishment of guidelines for the Union and the Member States laying down common objectives and standards and establishing a procedure for implementation and multilateral surveillance involving the Member States, the Commission and the European Parliament, which shall be adopted as Council Decisions in accordance with the procedure laid down in Article 26, subject to the following principles of action:
- The role of the European Council in giving general political guidance on policy direction;
- The prior consultation at the national, regional and local level of parliaments, local municipal and regional authorities, the social partners and civil society and the association as appropriate of such national authorities in the implementation of the coordination guidelines;
- The prior consultation at the European level of the Social Protection Committee, social partners and civil society.’

Justification
This provision creates a general framework for the open method of coordination (OMC) amongst the provisions on the Implementation of Union Action, and would ensure the involvement of the European Parliament in OMC, together with civil society. It is not a separate category of Union instrument, but could be implemented at the Union level via Decisions (Articles 24 and 26).

The procedure is referred to as the coordination of national policies. The ‘open’ element comes into the principles of action contained in paragraph 2.

OMC has hitherto sometimes been applied to policy fields where the Union has no current competence, although subsequent Treaty amendments have then sought to correct this situation. Examples would be the application of the Amsterdam employment provisions in advance of the entry into force of the Treaty and the institution of arrangements for an OMC in the area of social exclusion well in advance of the entry into force of the Treaty of Nice. It is to be hoped that these examples will not recur once the new Constitutional Treaty is in place because the scope of the objectives and competences of the Union will be pitched sufficiently broadly to cover most cases where an OMC might be envisaged, and furthermore a clearer distinction between shared and complementary competences or flanking policies and complementary action will have been introduced. In the event that OMC were contemplated where no specific competence were allocated to the Union, but the measure could be regarded as being covered by the objectives of the Union, a prior enabling measure under the flexibility clause (ex Article 308 EC – see Article 8 of the preliminary draft constitutional treaty) may be required.

5. Coordination of policies

The Broad Economic Policy Guidelines should be renamed as the European Guidelines for a Sustainable Economic, Social and Environmental development.

'The European Guidelines for a Sustainable Economic, Social and Environmental development are presented by the Commission and should be approved by the European Parliament and the Council in the codecision process linked with majority Council decisions. These guidelines should incorporate the objectives of the European Employment strategies and of the open method of coordination on Inclusion and on pensions. Before making its proposals the Commission should consult with the Social Partners and with civil society.’

Justification
In Lisbon and later in Gothenburg, EU Heads of State and Government have made the commitment to build a Europe based upon a strong economy, coupled with social justice and sustainability. This requires a new form of governance aimed at establishing a fair balance between social, economic and environmental concerns. The Social Platform believes the Convention should make clear proposal on how to translate this political commitment into the Treaty.

Economic policy in the European Union - as far as it is not an exclusive Community competence, like the monetary policy - is co-ordinated by the Stability and Growth Pact and the Broad Economic Policy Guidelines. Both instruments - also focusing on economic policy - have effects on social and employment policies, which cannot be ignored. This is why it does not only make sense, but it is necessary that a wider interpretation is given to economic policy co-ordination, so as to include social, employment and environmental issues.

6. Decision making procedures

Article 13TEC (non discrimination) should be given direct effect and be subject to qualified majority voting and co-decision, in order to strengthen the rights of discriminated groups throughout Europe.

Modifications must be made to Article 13 so that the Union can also fight against discrimination based upon social origin. Further amendments should also be made to require the application of Article 13 across all the Union’s policies and legislative initiatives.

7. Article 34 (participatory democracy): proposed text

‘The policy-making of the Union is based on the principle of participatory democracy. Accordingly, it shall be the responsibility of the institutions and bodies of the Union to take adequate measures to promote and ensure dialogue with associations of organised civil society at all stages of the policy making and legislative processes, including the drawing up and adoption of proposals and the monitoring and review of the implementation of policy.’

Justification
The Commission and the European Parliament as well as other Community institutions have taken significant steps over the past few years to involve representatives of civil society in decision and policy making. There is now widespread support for putting that cooperation on a more formal and structured level, as is already the case with regard to the social partners under Articles 138 and 139 EC. The proposed amendment would allow the institutions to define the best possible way of consulting with civil society organisations.

We also believe that a separate provision should be incorporated under Title VI to protect and strengthen the social dialogue acquis.

8. Article 5 (European citizenship): proposed text

'1. Every person holding the nationality or citizenship of a Member State shall be a citizen of the Union.
2. With a view to ensuring fair treatment, and in accordance with conditions laid down [in some other Part of the Constitutional Treaty and/or by the legislature], all permanent and lawful residents of the Member States not covered by paragraph 1 shall enjoy the rights and be subject to the duties under this Treaty which are associated with citizenship of the Union. This shall include in particular the right to non-discrimination on grounds of nationality.
3. Citizenship of the Union shall complement and not replace national citizenship.
4. Citizenship of the Union entails membership of the legal, political and socio-economic community associated with the European Union and confers upon beneficiaries civil, political and socio-economic rights set out in this Treaty and subjects them to the duties established by this Treaty.
5. The Union shall take particular care to ensure that children benefit from citizenship rights under this Treaty at least to the extent to which they have citizenship rights conferred under national law.’

Justification
This redrafted provision builds upon the existing citizenship provisions of the EC Treaty, and ensures respect for the principle of subsidiarity in so far as it ensures that citizenship of the Union is of a complementary character vis-à-vis national citizenship (in contrast to the term ‘dual citizenship’ used by the Praesidium’s Preliminary Draft Constitutional Treaty which has no heritage within the existing acquis). Building on the commitments made by the Member States at the European Council in Tampere, the provision extends citizenship rights as far as possible to third country nationals legally resident in the Union. It defines the concept of citizenship as a form of membership and provides the type of framework for flexible development of the concept through legal and political action (paragraph 4), which the Court of Justice made use of in its groundbreaking case of Martínez Sala, where it extended social rights to all EU citizens lawfully resident in another Member State on the basis of their citizenship of the Union. Given the vulnerable status of children, it makes specific reference to their citizenship rights.

9. Article 6 (fundamental rights): proposed text

The Social Platform supports the inclusion of a legally binding Charter in the new EU constitutional treaty. Changes to the horizontal articles must not be such as to endanger the fundamental rights acquis developed by the Court of Justice and must ensure that there are not gaps in fundamental rights protection between the institutions of the EU, the Member States and the Council of Europe (ECHR) which could operate to the disadvantage of individuals. To this end, it would be important to retain references in the Constitutional Treaty to other fundamental rights sources in the EU, especially the ECHR and other international human rights instruments to which the Court of Justice has previously referred such as the International Covenant on Civil and Political Rights. In addition to the incorporation of the Charter, and the establishment of legal personality for the Union, the Social Platform supports the inclusion of an article in the Constitutional Treaty facilitating from the EU perspective accession to the ECHR. This may be included amongst the External Powers of the Union, rather than within Article 6. Suggested text:

‘The external powers of the Union shall include an authorization to negotiate the accession of the Union to the European Convention of Human Rights and Fundamental Freedoms and to other international instruments designed to promote fundamental rights, with a view to enhancing the protection of fundamental rights in the Union and to promoting legal certainty for individuals. [Details to be laid down elsewhere].’

The Social Platform also supports a solution to the question of ‘how and where’ the Charter should be incorporated into the Treaty framework which gives maximum visibility to the Charter. It would support either incorporation through the presentation of the full text of the articles in the body of the Treaty, or its inclusion in a separate Part of the main Treaty. Its incorporation by ‘mere’ reference to a separate document, or its incorporation in an Annex or Protocol does not seem satisfactory. Although there may be little or no difference in legal terms between the various options, the importance of communicating to citizens the centrality of fundamental rights norms for the EU and its Member States outweighs the inconvenience of including all 50+ articles of the Charter somewhere in the main body of the Treaty.

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This Working Paper is based upon the Contribution to the Convention on the Future of Europe, 15 April 2002, submitted by the Social Platform, after full consultation of its members, and available from the Social Platform website: www.socialplatform.org