EU Law (Non-)Application in/by the EU Member States, by their Authorities and their Courts
Introduction: About the roots of the problem and the need for research
Scientific Essay 2011 5 Pages
All most developed states in terms of social policy nowadays face tremendous problems, consider the experts from the leading Max Planck Institute for the Study of Societies (MPI 2001: 10). The result is the strongly negative impact on liberty rights, and thus, on human rights as well. The lack of effective legal and judicial protection of liberty rights is argued, thereby, to act as an incentive that reduces private welfare (Petersmann 2002 and McGinnis 1999, both cited and criticised by Paech in Paech 2003: 48-52).
By referring back to the processes that led to the establishment in 1986 of the Limburg Principles for the implementation of the UNO Social Pact, and in 1997 of the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Paech (2003: 27-29) points out at the widely acknowledged by experts indisputability on states’ responsibility for any forms of violations of human rights. He stresses, thereby, that states’ responsibility in that respect is at three levels of obligations: to respect, to protect, and to fulfil. Economic and social rights are explicitly acknowledged under point 6 of the Maastricht Guidelines from 1997 to be imposing these three levels of obligations on states.
Although many of the provisions on the social human rights are directly applicable (Paech 2003: 27), e.g. all provisions on the prohibition of discrimination as well as the social benefits and social security rights that fall within the scope of social human rights (Paech 2003: 11), Paech stresses the vagueness and the difficulties associated with their actual protection in the reality (Paech 2003: 26). By pointing at the superficial nature of the division of human rights as those of three different generations, Paech (2003: 26) refers back to the Council of Europe’s report on poverty from 1986, where it is clearly declared that
“Human rights, which the Council of Europe upholds, cannot be observed selectively. They are all of equal importance. Efforts must therefore be made to achieve respect for fundamental rights as a whole, whether social, cultural, economic or civil and political…” (Council of Europe’s report ‘Exchange of views on poverty in Europe’ 30.9.-1.10.1986, as cited by Paech in Paech 2003: 26).
Paech outlines, thereby, the fundamental nature of social human rights as well as their equal weight and importance, like all other groups of human rights – a qualification that is opposed by the processes in the real life of neglecting, ignoring, and violating these rights.
By a reference back to the Treaty of Lisbon that entered into force on 1.12.2009 and “the ‘Community method’, ‘supranational’ by nature” as reaffirmed by the latter, Schutter (2010: 23) emphasises the binding force assigned to the EU Charter of Fundamental Rights as initially proclaimed in 2000. By discussing in that context on the EU’s Equal Opportunities Agenda and by referring back to the opposite models of the UK and France in that area, Schutter summarises that the core uncertainty arises not in relation to the capability of the EU for further development in the human rights field but in relation to the lacking consensus on the direction here for. Thus, he states that
“…the fundamental question is therefore not simply whether the EU could go further as it is clear that it could. It is rather whether it will be possible, in time, to achieve a sufficiently strong consensus within the EU Member States to move in a direction which may be perceived as opting for one model of integration (based on the acknowledgement and promotion of differences) rather than another competing model (based on integration by assimilation and the imposition of uniform standards on all, in combination with robust protection from discrimination).” ( Schutter 2010: 30 )