Social law in the wake of the crisis

This paper deals with two main issues, starting from the observation that the economic and financial crisis has shakenthe order of legal sources, raising issues of democratic legitimacy andaccountability for all institutional actors. The first issue is the developmentof sectoral social dialogue, despite the crisis and in contrast with the decline in the law-making process(articles 154-155 TFEU). Other processes were expanded, among all the European Semester, in which the social partnerswere not involved, as they should have been. Changes are also taking place inemployment policies, beyond the Open Method of Coordination. The second issue is related to the impact ofausterity measures on fundamental social rights. The European Semester deals with an ex ante examination of Member States performances and attempts torationalise ex post consequences. Recommendations sent to national governmentsfollow a path not comparable to the regulatory technique enshrined in Title IXTFEU, despite the fact that they often interact with employment policies.Furthermore, the European Stability Mechanism (ESM) gave rise to a complexprocedure, to be initiated by the country experiencing serious economic instability. Memoranda of Understanding (MoUs), signed by the Troika and theMember States concerned, to grant stability support (art. 13.3), reiteratedcontroversial emergency measures. The effects caused by all these manoeuvresare now under the scrutiny of courts and international organizations and reveal a fragmented picture, both in the choice of litigation and in the results to beachieved. Decoupling economic governance from respect of individual andcollective social rights can give rise to infringements of art. 2 TEU, art. 9TFEU, and of relevant articles in the Charter of fundamental rights. Paper presented in the opening session of the XXVI FIDE Conference, Copenhagen 28-31 May 2014.