¹ Marshall, Thomas, Citizenship and Social Class, in Citizenship and Social Class 8 (Thomas Marshall & Tom Bottomore eds., 1992); Lister, Michael, Marshalling Social and Political Citizenship: Towards a Unified Conception of Citizenship, Government and Opposition 471 (2005); Dwyer, Peter, Understanding Social Citizenship 4 (2004).Google Scholar

² Burca, Grainne De, The Future of Social Rights Protection in Europe, in Social Rights in Europe 4 (Grainne De Burca & Bruno De Witte eds., 2005); Ewing, Keith, Social Rights and Constitutional Law, Public Law 104, 121 (1999); Cecile Fabre, Social Rights Under the Constitution: Government and the Decent Life (2004); Arango, Rodolfo, Basic Constitutional Rights, Social Justice and Democracy, 16 Ratio Juris 141 (2003); Gori, Gisella, Domestic Enforcement of the European Social Charter: The Way Forward, in Social Rights in Europe 71 (Grainne De Burca & Bruno De Witte eds., 2005).Google Scholar

³ Katrougalos, George, European ‘Social States’ and the USA: An Ocean Apart?, 4 European Constitutional Law Review 225, 230 (2008); Dell'Olio, Fiorella, Supranational undertakings and the determination of social rights, 9 Journal of European Public Policy 292, 304 (2002).Google Scholar

⁴ Frankenberg, Günter, Why Care? The Trouble with Social Rights, 17 Cardozo Law Review 1365, 1365 (1995).Google Scholar

⁵ Ewing, supra note 2, at 105.Google Scholar

⁶ Fabre, supra note 2, at 4. These four categories have been similarly identified by other authors as forming a core element of social rights, though not always framed in exactly the same manner. See Vassilis Hatzopoulos, Current Problems of Social Europe, European Legal Studies, 7 Research Papers in Law 2 (College of Europe, 2007); Arango, supra note 2, at 141; Frankenberg, supra note 4, at 1386; Ewing, supra note 2, at 106. Ewing substitutes the heading “availability of a broad range of cultural, recreational and leisure facilities” for education.Google Scholar

⁷ Hatsopoulos, supra note 6, at 2.Google Scholar

⁸ De Burca, supra note 2, at 4.Google Scholar

⁹ Pech, Laurent, France: Rethinking ‘Droits-Creances, in Socio-Economic Rights Jurisprudence – Emerging Trends in Comparative and International Law 264 (Malcolm Langford ed., 2009).Google Scholar

¹⁰ See Case 29/69, Stauder v. City of Ulm, 1969 E.C.R. 419; Case 11/70, Internationale Handelsgesellschaft, 1970 E.C.R. 1125; Case 4/73, Nold v. Commission, 1974 E.C.R. 491; Case 44/79, Hauer v. Land Rheinland-Pfalz, 1979 E.C.R. 3727.Google Scholar

¹¹ See Internationale Handelsgesellschaft, supra note 10, at para. 4.Google Scholar

¹² Witte, Bruno De, The Trajectory of Fundamental Social Rights in the European Union, in Social Rights in Europe 155, 153 (Grainne De Burca & Bruno De Witte eds., 2005).Google Scholar

¹³ Nold, supra note 10, at para. 13.Google Scholar

¹⁴ Hauer, supra note 10, at para. 15.Google Scholar

¹⁵ Rutili v. Minister for the Interior, 1219 1975 E.C.R. 1219, at para. 32.Google Scholar

¹⁶ Fabre, Cecile, Social Rights in European Constitutions, in Social Rights in Europe 15 (Grainne De Burca & Bruno De Witte eds., 2005). Fabre determined that of twenty-nine EU Member States or accession applicants, twenty-five of those States protect social rights within their constitutions to some degree.Google Scholar

¹⁷ Defrene II, 1978 E.C.R. 1365, at paras. 26-28.Google Scholar

¹⁸ De Witte, supra note 12, at 153. The Social Charter was referred to in Blaziot, but this was in the context of it being used to assist with the interpretation of the term ‘vocational’ in what is now Article 167 TFEU. Blaziot v. Belgium, 1988 E.C.R. 379, at para. 17.Google Scholar

¹⁹ Schutter, Olivier de, Anchoring the European Union to the European Social Charter: The Case for Accession, in Social Rights in Europe 122 (Grainne De Burca & Bruno De Witte eds., 2005).Google Scholar

²⁰ Gould, Mark, The European Social Charter and Community Law – A Comment, 14 European Law Review 223, 225-6 (1989).Google Scholar

²¹ R. v. Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU), 2011 E.C.R. I-4811.Google Scholar

²² Id. at para. 22 of the opinion.Google Scholar

²³ Id. at para. 23 of the opinion. Significantly, AG Tizzano also located the right in both the Social Charter and the Community Charter, before copper-fastening its position as a fundamental social right by referring to the Charter of Fundamental Rights at paras. 23, 24 and 28 of the opinion. The Advocate General made further references to both the Social and Community Charters in paras. 26-27. See The Charter of Fundamental Rights of the European Union [hereinafter “the Charter], Dec. 18, 2000, 2000 O.J. (C364) 1.Google Scholar

²⁴ Nold, supra note 10.Google Scholar

²⁵ In Amsterdam, an overt mention of the term social rights was inserted in what is now Article 151 TFEU. While this article did cite a number of international treaties dealing with social rights which the Member States either signed or cooperated in, the significance of the provision was certainly questionable, containing as it did a mere exhortation to “implement measures” in the areas of improving living and working conditions, promoting employment, maintaining proper social protection and maintaining dialogue between management and workers. There was clearly a difference in the status of the norms contained within it, and those set out in the former Article 6 EU.Google Scholar

²⁶ Schmidberger v. Austria, 2003 E.C.R. I-5659.Google Scholar

²⁷ Id. at para. 74.Google Scholar

²⁸ Id. at para. 71.Google Scholar

²⁹ Id. at para. 77.Google Scholar

³⁰ Id. at paras. 78 – 93.Google Scholar

³¹ Nicolett, Hos, The Principle of Proportionality in the Viking and Laval Cases: An Appropriate Standard of Judicial Review, 6 EUI Working Papers (Law) 8 (2009).Google Scholar

³² Case C-36/02, Omega Spielhallen- und Automatenaufstellungs GmbH v Bundesstadt Bonn, 2004 E.C.R. I-9609.Google Scholar

³³ Id. at paras. 34-5.Google Scholar

³⁴ Hos, supra note 31, at 8.Google Scholar

³⁵ International Transport Workers’ Federation and Finnish Seamen's Union v. Viking Line ABP and OÜ Viking Line Eesti, 2007 E.C.R. I-0779; Laval un Partneri Ltd v Svenska Byggnadsarbetarefòrbundet, Svenska Byggnadsarbetarefòrbundets avdelning 1, Byggettan and Svenska Elektrikerfòrbundet, 2007 E.C.R. I-11767. For a discussion of these cases, see – inter alia – Norbert Reich, Free Movement v. Social Rights in the European Union: The Laval and Viking Cases before the European Court of Justice, 9 German L. J. 125 (2008), available at: http://www.germanlawjournal.com/index.php?pageID=11&artID=892; Joerges, Christian, Sozialstaatlichkeit in Europe?, A Conflict-of-Laws Approach to the Law of the EU and the Proceduralisation of Constitutionalisation, 10 German L. J. 335-360 (2009), available at http://www.germanlawjournal.com/index.php?pageID=11&artID=1096; Uladzislau Belavusau, The Case of Laval in the Context of the Post-Enlargement EC Law Development, 9 German L. J. 2279-2308 (2008), available at http://www.germanlawjournal.com/index.php?pageID=11&artID=1069; Engle, Eric, A Viking We Will Go! Neo-Corporatism and Social Europe, 11 German L. J. 633-652 (2010), available at http://www.germanlawjournal.com/index.php?pageID=11&artID=1263 Google Scholar

³⁶ Viking, supra note 35, at para. 43. It is noteworthy to see ECHR using international treaties primarily related to social rights to base its decision that the right to strike was protected under Union law, but just as in Defrenne, the right in question is a civil right and not a social right.Google Scholar

³⁷ Viking, supra note 35, at para. 44.Google Scholar

³⁸ Id. Google Scholar

³⁹ Viking, supra note 35, at para. 46.Google Scholar

⁴⁰ Schmidberger, supra note 26, at 73.Google Scholar

⁴¹ Laval, supra note 35, at para. 90 – 92.Google Scholar

⁴² Id. at para. 94.Google Scholar

⁴³ Id. at paras. 104 – 105.Google Scholar

⁴⁴ Id. at para. 90.Google Scholar

⁴⁵ Hatzopoulos describes the case law as being a “spectacular development.” See Hatsopoulos, supra note 6, at 12.Google Scholar

⁴⁶ Kohll v. Union des Caisses de Maladie, 1998 E.C.R. I-1937; Geraets-Smits & Peerboms, , 2001 E.C.R I-5473; V.G. Müller-Fauré v Onderlinge Waarborgmaatschappij OZ Zorgverzekeringen UA and E.E.M. van Riet v Onderlinge Waarborgmaatschappij ZAO Zorgverzekeringen, 2003 E.C.R. I-4509; Watts v. Bedford Primary Care Trust, 2006 E.C.R. I-4325.Google Scholar

⁴⁷ See Kohll, supra note 46, at para. 17; Geraerts-Smits, supra note 46, at paras.53-4; Muller-Faure, supra note 46, at paras. 39, 100; Watts, supra note 46, at para. 92. Note Davies’ states that “[it] is suggested that the capacity to believe that these statements are compatible serves as a test of true faith,” Gareth Davies, Welfare as a Service, 29 Legal Issues of Economic Integration 27, 28 (2002).Google Scholar

⁴⁸ Kohll, supra note 46, at para. 17.Google Scholar

⁴⁹ Kohll, supra note 46, at paras. 20-21.Google Scholar

⁵⁰ See Muller-Faure, supra note 39, at paras. 101-2; see also Watts, supra note 46, at para. 121.Google Scholar

⁵¹ “Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organization and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and the allocation of the resources assigned to them. The measures referred to in paragraph 4(a) shall not affect national provisions on the donation or medical use of organs and blood.” The second sentence was newly added during the Lisbon Treaty process.Google Scholar

⁵² Watts, supra note 46, at para. 144.Google Scholar

⁵³ Watts, supra note 46, at paras. 146-7.Google Scholar

⁵⁴ Kohll, supra note 46, at paras. 41-2; Geraerts-Smits, supra note 46, at para. 72; Muller-Faure, supra note 46, at para. 73; Watts, supra note 46, at para. 103.Google Scholar

⁵⁵ Muller-Faure, supra note 46, at para. 72. Nic Shuibhne illustrates the point regarding the problematic nature of using economic justifications for derogating from the fundamental freedoms in Niamh Nic Shuibhne, Derogating from the Free Movement of Persons: When can EU Citizens be Deported?, 8 Cambridge Year Book of European Legal Studies 187, 210 (2006).Google Scholar

⁵⁶ Muller-Faure, supra note 46, at para. 74.Google Scholar

⁵⁷ This criticism of the ECJ's approach to the solvency of national healthcare systems has not been restricted to its approach to the scale of individual financial claims. Concerns have also been raised about other financial assertions the ECJ has made. For example, it has been suggested that distinctions made in both Watts and Muller-Faure that allowing patients go to another Member State to receive non-hospital medical treatment would not cause financial risk, while allowing them travel for hospital based medical treatment would, were not based on any substantive economic analysis. The ECJ appears comfortable making wide generalizations, which may result in major expenses being incurred by the Member States. See Gareth Davies, The Price of Letting Courts Value Solidarity: The Judicial Role in Liberalizing Welfare, in Promoting Solidarity in the European Union 117 (Malcolm Ross & Yuri Borgmann-Prebil eds., 2010).Google Scholar

⁵⁸ Kohll, supra note 46, at paras. 50-2; Geraerts-Smits, supra note 46, at paras. 73-4; Muller-Faure, supra note 46, at para. 67; WattS, supra note 46, at para. 104-105.Google Scholar

⁵⁹ Geraerts-Smits, supra note 46, at paras. 76-81; Watts, supra note 46, at paras. 107-113.Google Scholar

⁶⁰ Geraerts-Smits, supra note 46, at para. 90; Muller-Faure, supra note 46, at para. 85; Watts, supra note 46, at para. 116.Google Scholar

⁶¹ Watts, supra note 46, at para. 119.Google Scholar

⁶² Watts, supra note 46, at para. 120.Google Scholar

⁶³ Muller-Faure, supra note 46, at para. 92.Google Scholar

⁶⁴ See Antje Du Bois-Pedain, Seeking Healthcare Elsewhere, 66 Cambridge Law Journal 46-7 (2007).Google Scholar

⁶⁵ See Hatzopoulos, Vassilis, Killing National Health and Insurance Systems but Healing Patients? The European Market for Health Care Services after the Judgments of the ECJ in Vanbraekel and Peerbooms, 39 Common Market Law Review 683 (2002).Google Scholar

⁶⁶ Katrougalos, George, The (Dim) Perspectives of the European Social Citizenship, 5 Jean Monnet Working Paper 45 (2007).Google Scholar

⁶⁷ This point is originally made by Barnard in relation to education but is equally applicable to healthcare. See Catherine Barnard, EU Citizenship and the principle of solidarity, in Social Welfare and EU Law 178 (Eleanor Spaventa & Michael Dougan eds., 2005). For a contrary view, welcoming these decisions as a means of democratizing the provision of healthcare for patients, see Mark Flear, “Together for Health”? How EU Governance of Health Undermines Active Biological Citizenship, 26 Wisconsin International Law Journal 868 (2009).Google Scholar

⁶⁸ Belgian State v René Humbel and Marie-Thérèse Edel, 1988 E.C.R. 5365.Google Scholar

⁶⁹ Id. at paras. 17-18.Google Scholar

⁷⁰ Id. at paras. 20.Google Scholar

⁷¹ Stephan Max Wirth v Landeshauptstadt Hannover, 1993 E.C.R. I-6447, at para. 17. This distinction was repeated subsequently by the ECtHR in Case C-218/05, Commission v. Germany, 2007 E.C.R. I-6957, at paras. 71-72.Google Scholar

⁷² Geraerts-Smits, supra note 46, at para. 30 of the opinion. It is difficult to divine the reason for the ECJ's very different approaches to education and healthcare. Davies highlights the inconsistency in holding in Humbol that the Government was fulfilling its duty to the population by supplying education, while making no such similar statements in the healthcare cases, when the provision of public health is as significant a role for a government as the provision of education. See Davies, supra note 47, at 32.Google Scholar

⁷³ Humbel, supra note 68, at paras. 17-18.Google Scholar

⁷⁴ Rhiannon Morgan v Bezirksregierung Köln and Iris Bucher v Landrat des Kreises Düren, 2007 E.C.R. I-9161.Google Scholar

⁷⁵ Id. at para. 100.Google Scholar

⁷⁶ Id. at para. 102.Google Scholar

⁷⁷ Particularly when these were being operated in a clearly discriminatory manner. See Case C-147/03, Commission v. Austria, 2005 E.C.R. I-5969; Case 293/85, Commission v. Belgium, 1985 E.C.R. 3521.Google Scholar

⁷⁸ See Hos, supra note 31, at 3.Google Scholar

⁷⁹ Joerges, Christian, Democracy and European Integration: A Legacy of Tensions, a Re-conceptualisation and Recent True Conflicts, 25 EUI Working Papers (Law) 4 (2007).Google Scholar

⁸⁰ Article 2 EU Treaty.Google Scholar

⁸¹ Article 2 EC Treaty.Google Scholar

⁸² Article 3 EC Treaty.Google Scholar

⁸³ See Hos, supra note 31, at 12; See Siofra O'Leary, The Relationship between Community Citizenship and the Protection of Fundamental Rights in Community Law, 32 Common Market Law Review 519, 533 (1995).Google Scholar

⁸⁴ See Katrougalos, supra note 3, at 250.Google Scholar

⁸⁵ Sajo, Andras, Social Rights: A Wide Agenda, 1 European Constitutional Law Review 38, 39 (2005); Joerges, Christian & Rödl, Florian, “Social Market Economy” as Europe's Social Model, 8 EUI Working Paper (Law) 3 (2004).Google Scholar

⁸⁶ See Sajo, supra note 85, at 39. The author was speaking in the context of the same phrase in the Constitutional Treaty.Google Scholar

⁸⁷ On this point, Sajo references Deutsche Telekom v. Schroder, 2000 ECR I-743.Google Scholar

⁸⁸ See Joerges, & Rödl, supra note 85, at 9-10.Google Scholar

⁸⁹ Id. at 11.Google Scholar

⁹⁰ Id. at 16.Google Scholar

⁹¹ Id. at 20. Joerges & Rödl also argue that the very term “social market system” is unsuited to being described as an “objective’ as it is under Article 3 TFEU. They describe it at best as a model or strategy. See Joerges & Rödl, supra note 85, at 12, 19–20. They propose two alternatives to the “social market economy” option adopted at Lisbon. First, they suggest that it would have been better to use phrases such as “social European legal order” or “social Union.” Second, suggest that reliance could have been placed on the term solidarity in Article 2 TFEU.Google Scholar

⁹² Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health, 1982 E.C.R. 3415, at para. 19.Google Scholar

⁹³ Indeed, Joerges & Rödl do subsequently continence such an approach, asking “Why not trust that this Court will now be able to establish a “social Europe,” to shape a “European social citizenship” and thereby give new meaning to the notion of a “social market economy;” see Joerges & Rödl, supra note 85, at 22. It is submitted that even if the authors are correct in asserting their concern about the new provision, the model emerging from the German approach could not be any less conscious of social rights than was the existing situation in Union law prior to LisbonGoogle Scholar

⁹⁴ Official negotiations between the EU and the Council of Europe began on 7 July 2010. See Press Release, Council of Europe, European Commission and Council of Europe kick off joint talks on EU's accession to the Convention on Human Rights (Jul. 7, 2010), available at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/906&format=HTML&aged=1&language=EN&guiLanguage=en (last accessed: 27 September 2011).Google Scholar

⁹⁵ This has been lamented by some commentators concerned that as the ECHR dates from the early 1950s, and the rights contained in national constitutions are usually deeply entrenched and inflexible, new international treaties offer the best source of updated views on existing rights, or indeed new rights which were not contemplated before. While this issue has less significance now due to the fact that social rights are contained within the Charter itself, nevertheless it is disappointing that the ECJ does not have as wide a range as possible of sources to canvass from. See Damian Chalmers et. al., European Union Law: Text and Materials 236 (Second Edition, 2010.Google Scholar

⁹⁶ See the Charter, supra note 23.Google Scholar

⁹⁷ Ackers, Louise & Stalford, Helen, A Community for Children? Children, Citizenship and Internal Migration in the EU 8 (2004).Google Scholar

⁹⁸ Article 27 of the Charter guarantees workers information and consultation within their undertaking, Article 28 protects the right of employees and workers to conclude collective agreements and enter into collective action including strikes, Article 30 protects a workers right to protection against unjust dismissal, Article 31 covers the right to fair and just working conditions, including pay, health and safety, work hours and annual leave. See the Charter, supra note 23, arts. 27, 28, 30.Google Scholar

⁹⁹ Article 34 (1) of the Charter. The EU recognizes and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Community law and national laws and practices. See the Charter, supra note 23.Google Scholar

¹⁰⁰ It should be noted that in both Article 35 and 36, the limitation phrases used are slightly different to those elsewhere in the Treaties. See the Charter, supra note 23, arts. 35, 36.Google Scholar

¹⁰¹ See Bercusson, Brian, Social and Labour Rights under the EU Constitution, in Social Rights in Europe 170 (Grainne De Burca & Bruno De Witte eds., 2005).Google Scholar

¹⁰² Ashiagbor, Diamond, Economic and Social Rights in the European Charter of Fundamental Rights, European Human Rights Law Review 63 (2004); Young, Alison, The Charter, Constitution and Human Rights: is this the Beginning or the End for Human Rights Protections by Community Law? 11 European Public Law 219 (2005); Engle, Christoph, The European Charter of Fundamental Rights: A Changed Political Opportunity Structure and its Normative Consequences, 7 European Law Journal 151 (2001); Lenaerts, Koen & Foubert, Petra, Social Rights in the European Court of Justice: The Impact of the Charter of Fundamental Rights of the European Union on Standing, 28 Legal Issues of Economic Integration 267 (2001); Joerges, & Ròdl, supra note 85, at 9.Google Scholar

¹⁰³ See Ashiagbor, supra note 102, at 70.Google Scholar

¹⁰⁴ See the Charter, supra note 23, art. 52(1).Google Scholar

¹⁰⁵ See the Charter, supra note 23, art. 52(3).Google Scholar

¹⁰⁶ See the Charter, supra note 23, art. 52(4).Google Scholar

¹⁰⁷ See the Charter, supra note 23, art. 52(5).Google Scholar

¹⁰⁸ See the Charter, supra note 23, art. 52(6).Google Scholar

¹⁰⁹ See De Schutter, supra note 19, at 120.Google Scholar

¹¹⁰ Explanations Relating to the Charter of Fundamental Rights 2007 O.J. (C303) 17. The relevant articles are arts. 12(2), 14(1), 15, 23, 25 and 26 – 35.Google Scholar

¹¹¹ De Witte, supra note 2, at 160.Google Scholar

¹¹² See the Charter, supra note 23, at Recital 7.Google Scholar

¹¹³ See Bercusson, supra note 101, at 173.Google Scholar

¹¹⁴ See Explanations Relating to the Charter of Fundamental Rights, supra note 110, at 35.Google Scholar

¹¹⁵ Dougan, Michael, The Constitutional Dimension to the Caselaw on Union Citizenship, 31 European Law Review 613, 665 (2006). Dougan also suggests that the ECJ may eventually allocate Charter articles between the categories of “rights” and “principles” on a case-by-case basis.Google Scholar

¹¹⁶ See Explanations Relating to the Charter of Fundamental Rights, supra note 110, at 35. The document states that even both of these provisions contain some elements of rights.Google Scholar

¹¹⁷ Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie, 1999 E.C.R. I-5751, at para. 146 of the opinion. While this would seem to suggest that the Advocate General believed that some rights in the Social Charter could obtain the status of fundamental rights, he was talking in the context of the right to join a trade union and the right to strike. It has already been argued that both of these are in the nature of civil rights, rather than social rights.Google Scholar

¹¹⁸ Anna Bergemann v Bundesanstalt für Arbeit, 1988 E.C.R. 5125 at para. 28.Google Scholar

¹¹⁹ It could be argued that this is a result of the very weak protection provided for education in Article 2 of the First Protocol which merely says no one will be denied the right to education. This is in contrast to the somewhat more robust text of Article 14 of the Charter of Fundamental Rights, which addresses both the right to education and vocational training, but also protects possibility of receiving free compulsory education. The latter point would obviously have some relevance to the fee paying situation in Humbel, though of course that decision predates the Charter.Google Scholar

¹²⁰ Scharpf, Fritz, The European Social Model: Coping with the Challenges of Diversity, 40 Journal of Common Market Studies 645, 665-6 (2002).Google Scholar

¹²¹ See Ashiagbor, supra note 102, at 64.Google Scholar

¹²² See Marshall, supra note 1, at 8; Lister, supra note 1, at 471; Dwyer, supra note 1, at 4.Google Scholar