Solidarity and Social Justice in the European Union. Seventy Years after the Universal Declaration of Human Rights: The Role of European Judges ...
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
ISSN 1826-3534
FOCUS HUMAN RIGHTS
5 FEBBRAIO 2020
Solidarity and Social Justice in the
European Union. Seventy Years after
the Universal Declaration of Human
Rights: The Role of European Judges
di Francesco2Zammartino
Professore associato di Diritto amministrativo
Università degli Studi di Napoli “L’Orientale”Solidarity and Social Justice in the European
Union. Seventy Years after the Universal
Declaration of Human Rights: The Role of
European Judges *
di Francesco Zammartino
Professore associato di Diritto amministrativo
Università degli Studi di Napoli “L’Orientale”
Abstract [En]: The year 2018 was a year of important political and historical anniversaries. Among those, it
certainly stands out the seventieth year from the proclamation of the Universal Declaration of Human Rights on
December 10, 1948 in Paris, voted by 48 members out of 58. Since it became, in the last part of the 20 th century
foundation on which the international human rights law was built, today, among other things, it must confront
itself with an economic globalization (unthinkable just seventy years ago),ever-increasing sensitivity towards
markets efficientism at the expense of fundamental rights safeguard, did not seem to contribute with an equivalent
globalization of civil, economic, political and social rights, as expressed by the Declaration's Articles 1 and 2.This
study will try to inquire whether the judicial activity of the Court of Justice in Luxembourg and the European
Court of Human Rights can offer a different interpretive key, by restoring the principle that it falls within the
States’ indispensable tasks to help ensure that the life of every human person does mirror, every day and in every
respect, the universal image of a human dignity.
Abstract [It]: Il 2018 è stato un anno di importanti ricorrenze storiche e politiche nel mondo. Tra di esse spicca
certamente il settantesimo anno dalla proclamazione della Dichiarazione Universale dei Diritti umani, avvenuta il
10 dicembre 1948 a Parigi e votata da 48 membri su 58. Divenuta nell’ultimo scorcio del ventesimo secolo il
fondamento su cui è stato creato il diritto internazionale dei diritti umani, essa oggi deve, tra l’altro, confrontarsi
con una globalizzazione economica sempre più sensibile all’efficientismo dei mercati a discapito della tutela dei
diritti sociali fondamentali, di cui il disposto combinato degli articoli 1 e 2 della Dichiarazione universale si fa
portavoce. Il presente studio, alla luce dei processi di globalizzazione che stanno in sostanza trasformando le
categorie fondamentali della democrazia e cui fa seguito l’inerzia dei legislatori nazionali e comunitario, tenterà di
chiedersi se invece le attività giurisdizionali della Corte di Giustizia di Lussemburgo e della Corte EDU, offrano
una diversa chiave di lettura, riportando tra i compiti cui gli Stati non possono rinunciare il concorrere a che la vita
di ogni persona umana manifesti ogni giorno e sotto ogni aspetto l’immagine universale della dignità umana.
Table of contents: 1. Introductory remarks. 2. What protection for social rights in the Europe of the judges? 3.
About certain decisions of the Court of Justice of the European Union with regard to social rights. 4. Social rights
under examination by the jurisprudence of the ECtHR. 5. Conclusions.
* Articolo sottoposto a referaggio.
132 federalismi.it - ISSN 1826-3534 |n. 3/20201. Introductory remarks. The year 2018 was a year of important political and historical anniversaries. Among those, it certainly stands out the seventieth year from the proclamation of the Universal Declaration of Human Rights on December 10, 1948 in Paris, voted by 48 members out of 58. The document - promoted by the United Nations General Assembly and consisting of a preamble and 30 articles - was the first legal act addressing at international level the greatest challenge of those years: having all member States agree on some level of awareness that human rights, as violated and offended by the horrors and barbarities perpetrated during the 2nd World War, were to be intended as "inalienable" rights of the person1, universal and unconditioned2. In essence, the idea that the person as an individual would acquire an "absolute" value in the life of the nations constituted the milestone of the Declaration’s Article 1, in so far as it states that "all human beings are born free and equal in dignity and rights". Since it became, in the last part of the 20th century, the foundation on which the international human rights law3 was built, the Declaration had (and continues having) a "pedagogical effect" towards the "Third World", for whom it "has served as a polar star, as a guide for the paths to follow" 4, in order also to temper that relationship between the universalisms of human rights and the pluralism of cultures and traditions, which often has produced friction among peoples5. Unfortunately, it must be noted that in recent years both UN reports and Amnesty International data have highlighted a dramatic increase of cases of human rights violations, with the shocking observation that most violations do come from the same States the citizens holders of violated rights belong to. Death penalties, tortures and abuses on inmates - even when for mere political reasons - violence, oppressions, exploitation, mistreatments, discriminations towards women, minors or ethnic and religious minorities: on top of those, the latest decade has witnessed the phenomenon of refugees fleeing their countries, ravaged by bloody conflicts, that a Europe increasingly pervaded by nationalist sentiments, disinclined towards international cooperation, is facing through policies on the management of migratory 1 N. BOBBIO, L'età dei diritti, Turin, 1997, p. 20. 2 On that note, we welcome the thesis according to which human rights should be distinguished from the so-called fundamental rights, which basically are law positivized within a contingent normative system; cf. N. LUHMANN, I diritti fondamentali come istituzione, Bari, 2002, p. 301. 3 P. WILLIAMS, The International bill of human rights. United Nations General Assembly, 1981. 4 A. CASSESE, I diritti umani nel mondo contemporaneo, Rome-Bari, 1994, p.45. 5 See, J. MORSINK, The Universal Declaration of Human Rights: origins, drafting, and intent, University of Pennsylvania Press, 1979 ; J. P. HUMPHREY, The universal declaration of human rights, Its history, impact andjuridical character. In B.G., RAMCHARAN (ed.). Human Rights: Thirty Years After the Universal Declaration: Commemorative Volume on the Occasion of the Thirtieth Anniversary of the Universal Declaration of Human Right, 1979, p. 37.; P. DANCHIN, The Universal Declaration of Human Rights: Drafting History - 10. Plenary Session of the Third General Assembly Session, Glendon, 2015. 133 federalismi.it - ISSN 1826-3534 |n. 3/2020
flows increasingly subject to urges which risk to deviate from the prohibition of inhuman treatments stated by the Declaration. And precisely on this regard, one wonders whether the challenge of migrants’ fundamental rights would represent an extremely important litmus test for social democracy's state-of-the-art, if it is true, as it has been authoritatively argued, that those rights are "mirrors that can reflect the deepest and darkest image of the rights not just of those who migrate, but of all of us"6. Alarming data that prompt us to a deeper reflection, as economic globalization (unthinkable just seventy years ago), with its ever-increasing sensitivity towards markets efficientism at the expense of fundamental rights safeguard, did not seem to contribute with an equivalent globalization of civil, economic, political and social rights, as expressed by the Declaration's Articles 1 and 27. Quite the contrary, it does not seem farfetched to believe that the very economic globalization, well past political monitoring and governed by global finance, has dramatically increased the gaps between industrialized and developing countries, in whom unbreakable rights8 - such as those relating to education, social security and health - are not guaranteed. It is therefore essential for the international community, in this case represented by wealthier countries, to strengthen its commitment in order to provide everyone with at least the slightest form of social and economic development, together with higher standards of living, in a greater freedom. Sadly, in recent times Europe itself is becoming the scene of manifestations of intolerance and relevant human rights violations. National governments, increasingly "blindfolded" by obligations imposed by budgetary stability acts, appear incapable of taking bold measures against threats posed by economic globalization and market turmoil, while - and this is what causes most concerns - those choices well inspire the European Union's policies, more and more distant from the universalism underlying all the rights of the human person. Echoing the words of the Universal Declaration of Human Rights, the principles of equality, dignity and freedom - expressly stated in Article 1, but implicitly recalled in the following articles - are at the core of the very founding values the whole Declaration is built on, the true markers from which it can be inferred the obligation of considering civil and social rights as intrinsically interlinked. 6 G. AZZARITI, "Introduzione al Convegno Cos'è un diritto fondamentale?", in Atti del Convegno Annuale di Cassino 10 e 11 giugno, Naples, 2016, p. 16. 7 On this regard, it’s worth mentioning how the sudden economic rise of certain countries in Asia has engendered in those governments policies focused on stressing their own cultural diversity and values, considered incompatible with the Declaration of 1948. 8 Ref. G. CATALDI, encyclopedia entries Diritti inderogabili and Non intervento, principio di, in M. FLORES D'ARCAIS (edited by), Diritti umani. Cultura dei diritti e dignità della persona nell'epoca della globalizzazione, Milan, 2007. 134 federalismi.it - ISSN 1826-3534 |n. 3/2020
And this is why - in the opinion of who writes - it might prove inadequate the effort of those who wish for the approval of a second-generation document that would integrate the Declaration and guarantee, through its own legal authority, effectiveness of the rights of those most vulnerable, there where the goal of an integration between freedom and social equality can be concretely achieved by fully leveraging the yet unexpressed potential of the Universal Declaration's provisions9. Now then, well aware of the complexity of the subject, with no claim of completeness and exhaustiveness, and in light of those globalization processes that are basically transforming democracy's fundamental categories in the silence of national and EU legislators, this study will try to inquire whether the judicial activity of the Court of Justice in Luxembourg and the European Court of Human Rights can offer a different interpretive key, by restoring the principle that it falls within the States' indispensable tasks to help ensure the life of every human person does mirror, every day and in every respect, the universal image of a human dignity. And, in a time when the value of universal human rights is heavily challenged, under the pressure of an unbounded individualism and a conception of politics whereby States have granted rights without a corresponding allocation of obligations and duties of solidarity, it seems therefore necessary to welcome a more wide-ranging view of freedom rights - as the Declaration appears to suggest - centered on the safeguard of equal opportunities to enjoy those fundamental freedoms, in order to establish a relationship where dynamism of the law and tension for social justice balance each other10. 2. What protection for social rights in the Europe of the judges? Certainly, in times of crisis the effectiveness of the so-called second-generation rights becomes a particularly complex subject, given that it exemplifies the direct and complex relationships between the subject's claim to receive certain benefits from state (and local) institutions, on one hand, and the actual availability of resources on the other11. As we know, in the folds of the European Union's legal system there is no specific articulation of the nature of social rights, given that everything still revolves around the traditional theory of subjective rights12, which ultimately denies the existence of any umbilical cord tying fundamental social rights to 9 A. FERRARA, Fondare senza fondamentalizzare i diritti umani: il ruolo di una Seconda dichiarazione, in Iura gentium, 2005, p.5. 10 Ref. P. HÄBERLE, Cultura dei diritti e diritti della cultura nello spazio costituzionale europeo, Milan, 2003, pp. 201 ff; P. RIDOLA, La dignità dell’uomo e il principio libertà nella cultura costituzionale europea, in Diritto comparato e diritto costituzionale europeo, Torino, 2010, p. 55; S. ZAPPALÀ, La tutela internazionale dei diritti, Bologna, Il Mulino, 2011. 11 See on this point S. HOLMES, Cass R. SUSTEIN, Il costo dei diritti. Perché la libertà dipende dalle tasse, in Iura gentium, Italian trad., Bologna, 2000. 12 SANTI ROMANO, Teoria dei diritti soggettivi subiettivi, in Trattato Orlando, I, Milan, 1900. 135 federalismi.it - ISSN 1826-3534 |n. 3/2020
human rights. That theorization is believed to favor the so-called “human rights relativism”13, which engenders exclusion14, humiliation and degradation among individuals and essentially curtails any increased "sensitivity" towards the protection of the human person. In a scenario where it has been widening the contrast between claims of a greater constitutional protection of the essential needs, on one hand, and policies of fiscal pressure the E.U. imposes on national communities15 on the other, the continuity of fundamental social rights, as well as their expansion to the supranational level, would have to rely on the lawmaker's capability in ensuring that values of solidarity16, equality and social justice17 are respected. Only on the terrain of those values it's possible to set the foundation for a political Europe of states, that could find its main purpose into the discipline of economic and political powers within the social interaction18. However, it's worth emphasizing how integrating freedom and social equality19 was never a key topic in the juridical culture underlying the E.U. political integration process20. Indeed, despite Lisbon Treaty's entry into force, within a few years it was soon shattered the illusion that the market integration could be completed with no impact on the internal balances of the national social States, perhaps solely through the update introduced with Article 3.3 of the TEU, which replaced the former reference to an "open market in a free competition" with a "social market economy". The so- called "binary model" - articulated on two levels21, each with its own competences: market and economic freedoms to the Community; social policies for the States - which characterized the European construction process from its origins but failed to close the gaps among the national dimensions and 13 M. IGNATIEFF, Human Rights as Politics and Idolatry, Princeton University Press, 2001, passim. 14 Cf. L.TRUCCO, La nozione di “esclusione sociale” fra ordinamento comunitario e ordinamenti nazionali, in Diritti sociali e servizio sociale. Dalla dimensione nazionale a quella comunitaria, (a cura di P. COSTANZO), Milano, 2005, p. 120 ss. 15 A. SPADARO, Una vecchia storia: togliere ai ricchi per dare ai poveri? (Cenni per una teoria della globalizzazione non dei "diritti" ma dei "doveri"), in C. AMATO, G. PONZANELLI (edited by), Global law v. local law, Turin, 2006, pp. 286 ff. 16 P. CIRIELLO, Considerazioni sulla solidarietà come "valore costituzionale", in S. PRISCO (edited by), Unione europea e limiti sociali del mercato, Turin, 2002, p.14 ff. 17 S. RODOTÀ, Diritto e diritti nell'era della globalizzazione, in S. STEFANIA (edited by), Globalizzazione e diritto del lavoro, Milan, 2001, pp. 39 ff. 18 In this respect, see P. COSTANZO, Il sistema di protezione dei diritti sociali nell'ambito dell'Unione europea, in Consulta on line, 2008, p.2. 19 The Treaty's Articles 1 and 3 - despite placing at the basis of the Community law, along with values of freedom and democracy, also those of human dignity, equality, intergenerational solidarity and gender equality - seem to lack that character of substantivity which is necessary to provide citizens (both EU and non-EU) with essential tools to resolve the consolidated imbalance of values between economic freedoms and fundamental social rights. 20 On this point, see among many: M. LUCIANI, Diritti sociali e integrazione europea, in Politica del diritto, 3, 2000, 367 ff.; A. D'ALOIA, Diritti sociali e politiche di eguaglianza nel processo costituzionale europeo, in M. SCUDIERO (edited by), Il diritto costituzionale comune europeo, Naples, 2002, p. 852; S. GAMBINO, Diritti fondamentali europei e trattato costituzionale, in Politica del diritto, 1, 2005. 21 Ref. A. LUCARELLI, Il modello sociale e economico europeo, in A. CANTARO (edited by), Il costituzionalismo asimmetrico dell'Unione, Turin, 2010, p. 305 ff. 136 federalismi.it - ISSN 1826-3534 |n. 3/2020
between those and the European one, as it was rightly observed, "has not been abandoned at all but merely redefined in new terms: so that speaking of a European social citizenship alongside the economic one is still today improper"22. On the contrary, it is believed that the recognition of social rights at supranational and international level - for the sole reason that it does legitimize expectations of positive safeguards, comparable, particularly in the juridical dimension, to the negative safeguards provided for freedom rights, here reaffirming the indissoluble link between social and civil rights evincing from reading the Declaration's articles - could not be ensured just by adopting rules of "harmonization", which at the end only set minimum standards of protection in certain matters23. By this reasoning, the relationship between individual rights and the public interest to be in turn balanced out, in the legislative and jurisprudential sphere, may not find a stable equilibrium point in the multilevel system, as there are real chances that to a higher protection level of individual rights may not correspond social welfare24. It is indeed a distinctive trait of the European institutional model25 the indication that second-generation rights - as based directly on ordinary law and therefore lacking the constitutional guarantee typical of fundamental and inviolable rights26 - take the nature of residual, instrumental rights, mainly aimed at achieving economic objectives of the European single market27. In that scenario28, for years now we have been witnessing to the suppletive role jurisprudence29 has taken to lawmakers, granting social rights30 22 G. ORLANDINI, Libertà economiche e cittadinanza sociale europea, in Academia.edu. 2010, p.3; more recently, with regard to the public administration: A. CONTIERI, Cittadinanza amministrativa e diritto di voto: dall'uguaglianza nei diritti sociali alla difficile affermazione di un modello condiviso di accoglienza, in Diritto e processo amministrativo, Giornate di studio in onore di Enrico Follieri, 2019, p. 329 ff. 23 Erika De Wet, J. VIDMAR, Hierarchy in International Law: The Place of Human Rights, New York, Oxford University Press, 2012, 120 ff. 24 Cf. P. HÄBERLE, Cultura dei diritti e diritti della cultura nello spazio costituzionale europeo, Milan, 2003, pp. 201 ff. 25 A. LUCARELLI, Diritti sociali e principi costituzionali europei. Dalla Carta europea dei diritti fondamentali al progetto di Trattato costituzionale, in Democrazia e diritto, 2003, passim; S. STAIANO, La garanzia dei diritti sociali resta la principale "pietra d'inciampo" sulla via dell'integrazione europea, see Diritti e confini dell'Europa in crisi, in Federalismi.it, 2015, p.8. 26 See G. SILVESTRI, Verso uno ius commune europeo dei diritti fondamentali, in Quaderni costituzionali, 2006, p. 19 ff. 27 On this regard, see S. HOLMES, Cass R. SUSTEIN, Il costo dei diritti. Perché la libertà dipende dalle tasse, op. cit. 28 Cf. the recent Directive 96/71/EC of 2012, concerning posted workers at risk of dumping, which appears to emphasize a hierarchization of values seeing economic freedoms preferred over the respect and the exercise of fundamental social rights. 29 P. LEACH, Taking a Case to the European Court of Human Rights, III ed., London, 2011, passim. 30 S. GIUBBONI, Verso la Costituzione europea: la traiettoria dei diritti sociali fondamentali nell'ordinamento comunitario, in Rivista del diritto della sicurezza, 2005, p. 489 ff.; also cf. A. PACE, A che serve la Carta dei diritti fondamentali dell'Unione Europea? Appunti preliminari, in Giurisprudenza costituzionale, 2001; also cf. L. TRUCCO, Carta dei diritti fondamentali e costituzionalizzazione dell’Unione europea. Un’analisi delle strategie argomentative delle tecniche decisorie a Lussemburgo, Torino, 2013. 137 federalismi.it - ISSN 1826-3534 |n. 3/2020
trough interpretive techniques and guarantee instruments that do enable social rights holders to access
legal recourse (the so-called "right to make use of rights"31).
As mentioned above, the Universal Declaration of Human Rights stands on the need of guaranteeing a
common core of values, such the primacy of the human person and the principles of non-discrimination,
social justice and solidarity32. Seventy years after, these values, in the first decades made effective by
Western pluralist democracies, have in recent times come to a relative halt, as States have become
increasingly powerless before the globalization of the economy. Europe, for its part, despite not reporting
cases as tragic as those afflicting the most populous countries of the world, is also ground for equally
relevant violations of fundamental rights, rectius social rights, in the name of the so-called "economic
sustainability"33.
All this has favored an increasingly "pervasive" role of the judges, who are replacing lawmakers in the
protection of rights, particularly of social rights.
However, an analysis of this phenomenon cannot recall, albeit briefly, the wider and more articulated
matter of the relationship between judges and lawmakers, in the light of the principles of separation of
powers and democracy.
The fact that jurisprudence does not trace its activity back to declarative enunciations of pre-existing law,
enclosed in legal provisions, strengthens the hypothesis of judges often holding a function of law creation,
and foster dreads among those who look with concern at the deviation of the contemporary State in a
jurisdictional sense.
But in a system where boundaries between judge and lawmaker are increasingly loose, it's obvious that
jurisprudence substantiates its role in the need of an ius constantly in fieri, according to the relative wills
of the case.
This event, mirroring the reality of a law increasingly expressed by jurisdictionalization, and given at this
point the "chronic" ineffectiveness of solutions provided by conventional structures and textbook
governance mechanisms, also concerns the weakening of social benefits protection granted in the name
of solidarity, and the increasingly autonomous role played by the freedom of economic initiative.
Specifically, through a dynamic interpretation of their role, judges have been asked to carry out values
31 See G. F. MANCINI, Democrazia e costituzionalismo nell'Unione europea, Bologna, 2004, pp. 259 ff.
32 B.
CONFORTI, Diritto internazionale, Napoli, 2015, pp. 195 ff.
33 On this regard, L. DE LUCIA, "Pastorato" e "disciplinamento" nella governance economica europea. Diritto e razionalità della crisi,
in Diritto pubblico, 3, 2015, p. 867 ff.
138 federalismi.it - ISSN 1826-3534 |n. 3/2020adjustments and a reasonable mediation between instances of economic initiative freedom and social rights34. As it was acutely argued, the balance disrupted in the relation between jurisdiction and legislation may at the end only mirror the natural increase of new elements present in the apparatus of the constitutional social state35. That perspective, however, is not without risk: the increase of the so-called "legal makers" of fundamental social rights sometimes disproportionately expands the judicial discretion, "tasking judges with a function they are not always culturally prepared for, having to discern, in the complex social framework, which instances deserve to be legally recognized"36. But can judicial reviews be the ground for fundamental social rights to emerge? In other words, can they feature as main actors in the formation process of second-generation rights? In the opinion of who writes, answering these questions affirmatively exposes such decisions to the risk of embodying mere political choices37, there where the "fight for rights", particularly in the light of an economic and social crisis, must be instead addressed through a cooperation38 of lawmakers, judges, law scholars and the very right holders claiming a fundamental right violation. In the end, it's a general opinion that, in a time when there is considerable political uncertainty among Member States of the Union, the participation in the interpretation process of fundamental social rights should be as wide as possible; only in this way can it be triggered a process of cooperative implementation of the aforementioned rights, evoked by the very same Declaration of Human Rights, there where it promotes development cooperation as a decisive factor in promoting and protecting rights. 3. About certain decisions of the Court of Justice of the European Union with regard to social rights. One of the greatest "moral" lessons coming from the 1948 Declaration is incentivizing nations to boost the process of approximation between social rights and freedom rights, with the purpose of establishing a "ethical" code of international social rights, founded on values of solidarity and social justice39. 34 In a critical sense, M. LUCIANI, Funzioni e responsabilità della giurisdizione. Una vicenda italiana (e non solo), in Rivista AIC, 3, 2012, p. 3824. 35 P. CARETTI, Il rapporto tra giudice e legislatore nella tutela dei diritti: verso un nuovo equilibrio, (a cura di ) (edited by), Naples, 2016, p. 26. 36 G. D'AMICO, La "fondamentalità" dei diritti tra giudici e legislatori, in V. BALDINI (edited by), Cos'è un diritto fondamentale, Naples, 2017, p.487. 37 S. STAIANO, Costituzionalismo e diritto giurisprudenziale nel tempo storico, in VV. AA., Fides Humanitas Ius, Studi in onore di Luigi Labruna, Naples, 2008, pp. 5381 ff. 38 P. HÄBERLE, Le Libertà fondamentali nello Stato costituzionale, P. RIDOLA (edited by), Rome, 1996, p. 187. 39 G. GURVITCH, La Dichiarazione dei diritti sociali (1946), transl. by L. FOA, Milan, 1949, pp. 100-101. 139 federalismi.it - ISSN 1826-3534 |n. 3/2020
We have already mentioned how the large financial and economic crisis, along with economic policies marked by strict austerity measures in the governments of industrially advanced countries, has dramatically slowed down such process40. This resulted in a parallel increase of legal recourses by citizens seeking an effective safeguard of their rights, given the "feeble" protection offered by legislators. This phenomenon also occurred at European level, particularly in light of the difficulties encountered in the E.U.'s acceding to the European Convention on Human Rights, which would make the European Community a new contracting party equal to other Member States41. But despite the accession, the issue of fundamental rights safeguard remains in Europe42 a composite one, certainly not contributing to extinguish pre-existing tensions between the two supranational bodies, whose origin goes back to the early relations between E.U. and ECHR when the former, born as economic community, asserted the Community law's superiority43 and its nature as economically motivated. This stance by the E.U. has then shaped even the relations between the two Courts of Luxembourg and Strasbourg, despite a certain level of convergence with regard to certain aspects of fundamental rights protection. Indeed, concerns that decisions of the ECtHR might have an effective influence on Community law have always motivated the Court of Justice of Luxembourg to be on alert, as the same Court has several times underlined the risk for the Community law to be exposed to external scrutiny of the Court of Strasburg, in violation of Article 344 TFEU44. This intermittent dialogue between the two jurisdictions - to which it didn't seem to benefit the entry into force of the Charter of Fundamental Rights of the European Union, and its subsequent incorporation into the founding Treaties by the Treaty of Lisbon - often poses the risk of divergent interpretations of the same rule45. 40 With regard to the impact the economic crisis had on social rights, see, among many, B. CARAVITA DI TORITTO, Trasformazioni costituzionali nel federalizing process europeo, Naples, 2012; A. MARRONE, Crisi economica e diritti. Appunti per lo Stato costituzionale in Europa, in Quaderni costituzionali, 1, 2014; P. BILANCIA, La dimensione sociale dei diritti sociali, in Federalismi.it, 4, 2018. 41 Ref. B. CONFORTI, L'adhésion de l'Union Européenne à la Convention Européenne des Droits de L'Homme, Mélanges en hommage à Halbert Weitzel, L 'Europe des droits fondamentaux, Paris, 2013. 42 P. KOUTRAKOS, EU International Relations Law, Hart Publishing, Oregon, 2015, pp. 148 ff. 43 For an historical reconstruction of the relations between the E.U. and the ECHR, see R. ADAM, A. TIZZANO, Manuale di diritto dell'Unione Europea, Turin, 2017. 44 More recently, cf. Court of Justice of the European Union, Melloni, Case C-399/11, judgment of 26 February 2013. 45 A. SANDULLI, La Corte di Giustizia europea ed il dialogo competitivo tra le Corti, in VV. AA., Il diritto amministrativo oltre i confini, Milan, 2008, pp. 189 ff. 140 federalismi.it - ISSN 1826-3534 |n. 3/2020
This interpretive dystonia assumes greater importance with reference to the different level of social rights safeguard offered by the two European judges, in a Europe where the principle of social market economy is closely related to the competitiveness one. Proceeding now with a brief analysis of the main judgements of the European Court of Justice, we must record how - despite important rulings concerning non-discrimination between genders46, worker's protection47 and working environment improvement48 - the Court's safeguard of social rights still is indirect and incidental, in so far as such rights can be traced back to a public interest linked to the implementation of specific policies of the E.U.49 In the wake of such jurisprudential approach - unchanged even after shifting away from an initial orientation assuming the existence of limits to fundamental rights only in the realm of economic rights50, and with the purpose of building a common organization of the market 51- restrictions to the exercise of second-generation rights were admitted, as long as they met objectives of general interests pursued by the Community52, and given that they were not representing disproportionate and inadmissible measures53. This led to the imbalance between market and rights ascribable to the social dimension, an imbalance entirely favoring the former54. In this respect, we take into consideration important rulings the Court of Justices has laid down with regard to social rights like the right to strike55 and the right to collective bargaining56. As an attentive doctrine has pointed out57, in its judgments Viking, Laval and Ruffert, despite having to address largely different matters, the Court adopted the same fundamental approach, inspired by an interpretation of rules aimed at ensuring to economic freedoms their highest effectiveness. 46 Ex plurimis, Court of Justice of the European Union, Allonby, Case C-256/01, judgment of 13 January 2004. 47 Ex plurimis, Court of Justice of the European Union, Albany International BV, Case C-67/96, judgment of 21 September 1999; Court of Justice of the European Union, The Queen v Secretary of State, case C-173/99, judgment of 26 June 2001. As doctrine, see M. ROCCELLA, T. TREU, Diritto del lavoro della Comunità Europea, Padua, 2009, passim. 48 Recently, Court of Justice of the European Union, C.D. contro S.T., case C-167/12, judgment of 18 March 2014. 49 Cf. the historical judgment by the Court of Justice of the European Community, Hauer, case C-44/79, judgment of December 13, 1979. 50 Court of Justice of the European Community, judgment Stauder - case C-29/69 of 12 November 1969, and Nold, case C-4/73 of May 14, 1974. 51 Cf. M. CINELLI, Mercato unico europeo e sicurezza sociale, in Rivista italiana di diritto del lavoro, 1, 1990, p. 62 ff. 52 Court of Justice of the European Community, Kremzow, case C-5/88, judgment of 29 May 1997. 53 See on this point Court of Justice of the European Community, Wachauf, case C-5/1988, judgment of 13 July 1989. 54 Giorgio Grasso, "I diritti sociali e la crisi oltre lo Stato nazionale", in Rivista Associazione Italiana dei Costituzionalisti, 4, 2016, p.5. 55 Court of Justice of the European Union, Viking, case C-348/05, judgment of 11 December 2007. 56 Court of Justice of the European Union, Laval, case C-341/05, judgment of 18 December 2007; Court of Justice of the European Union, Ruffert, case C-346/06, judgment of 3 April 2008. 57 U. CARABELLI, Note critiche a margine delle sentenze della Corte di giustizia nei casi Laval e Viking, in Giornale di diritto del lavoro e di relazioni industriali, 2008; M. V. BALLESTRERO, Le sentenze Viking e Laval: la Corte di giustizia "bilancia" il diritto di sciopero, 141 federalismi.it - ISSN 1826-3534 |n. 3/2020
As a confirmation of this, it would be enough to go over certain paragraphs of the judgment Vikings (cons. 78 and 79) and Laval (cons. 104 and 105), where the Court states that "since the Community has thus not only an economic but also a social purpose, the rights under the provisions of the Treaty on the free movement of goods, persons, services and capital must be balanced against the objectives pursued by social policy, which include (...) improved living and working conditions, so as to make possible their harmonization while improvement is being maintained, proper social protection and dialogue between management and labor". These judgments represent a major breakthrough, as the Court offers a drastically restrictive interpretation of Directive 96/71, subjecting the right to take industrial action (recognized by constitutional principles in the national legal systems) to a judicial review whose benchmark is provided by rules of market and competition58. Starting from an absolutist view of the integration process - where the strong constraints exercised by the principles of the Community over the social rights of national legal systems also impacts the framework of competences within those States59 - in the aforementioned judgments the Court established that the constitutionally guaranteed rights of strike and collective bargaining, respectively claimed by Latvian, Finnish and German trade unions against important national private companies willing to move their activities to other countries offering a more favorable tax system (the so-called PECO), could be restricted in favor of the freedom of establishment and to provide services. More specifically the Court of Justice, through a formalist reading of Article 3, n.7 of Directive 96/71 - regulating the posting of workers within the provision of transnational services - affirmed that "Article 3(7) of Directive 96/71 cannot be interpreted as allowing the host Member State to make the provision of services in its territory conditional on the observance of terms and conditions of employment which go beyond the mandatory rules for minimum protection"60 (including in this part of its judgment both the matters listed at paragraph 1 and those derivable by the notion of public order of paragraph 10) and that "the level of protection which must be guaranteed to workers posted to the territory of the host Member State is limited, in principle, to that provided for in Article 3(1), first subparagraph, (a) to (g), of Directive 96/71, unless, pursuant to the law or collective agreements in the Member State of origin, those in Lavoro e diritto, 2, 2008, p. 371 ff.; A. LO FARO, Diritti sociali e libertà economiche del mercato interno: considerazioni minime in margine ai casi Laval e Viking, in Lavoro e diritto, 1, 2008, p.69 ff.; S. SCIARRA, Diritti collettivi e interessi transnazionali: dopo Laval, Viking, Ruffert, Lussemburgo, in A. ANDREONI, B. VENEZIANI (edited by), Libertà economiche e diritti sociali nell'Unione europea. Dopo le sentenze Laval, Viking, Ruffert e Lussemburgo, Rome, 2009, p. 24 ff.; B. VENEZIANI, La Corte di giustizia ed il trauma del cavallo di Troia, in Rivista giuridica del lavoro e della previdenza sociale, 2, 2008. 58 On this regard, see A. BIONDI, Free Trade, a Mountain Road and the Right to protest: European Economic Freedoms and Fundamental Individual Rights, in European Human Rights Law Review, 1, 2004, p. 54 ff. 59 Court of Justice of the European Union, Del Cerro Alonso, case C-307/05. judgment of 13 September 2007. 60 Paragraph 80 of the judgment Laval. 142 federalismi.it - ISSN 1826-3534 |n. 3/2020
workers already enjoy more favorable terms and conditions of employment as regards the matters referred to in that provision"61. The scenario resulting from these rulings appears to be this62: collective agreements and the relative protection of posted workers, as falling within the scope of the Treaties on economic freedoms, do not bind companies to specific negotiating commitments63. Moreover, if the "caution" shown by the judges in Luxembourg in providing effective guarantees to social rights might be justified by E.U.’s institutional balance revolving around the discipline of economic relations, still is relevant to underline how - despite the Treaty of Lisbon providing a framework of principles and values more receptive towards instances of social nature - the Court continues translating the relation between freedom of enterprise and social rights into a clear subordination of the latter to the former64. This prompted an attentive doctrine to suggest the level of protection offered to social rights by the judge in Luxembourg represents a decisive step backwards compared to that established in the respective national legislation65. Although the aforementioned cases must not mislead, as much time has passed since the Court affirmed the safeguard of fundamental rights was to be determined within the structure and the purpose of the Community, we must not forget how, compared to other types of individual rights – such as the right to annual leave66, the right of assembly67 or of freedom of speech68, for which the Court’s jurisprudential development occurred within the framework of an even balance between civil rights and economic 61 Paragraph 34 of the judgment Ruffert. 62 In stark contrast with certain previous decisions, like Court of Justice of the European Union, Finalarte, joined cases C-49-50/98, C-52-54/98 and C-68-71/98, judgment of 25 October 2001; Court of Justice of the European Union, Wolff and Müller, case C-60/03, judgment of 12 October 2004. 63 Ref. Court of Justice of the European Union, Commission v. Germany, C-271/08, judgment of 15 July 2010; also cf. the recent judgment RegioPost GmbH & Co.KG c. Stadt Landau in der Pfalz, case C-115/14 of 2015. 64 For an historical reconstruction of the jurisprudence of the Court, see, A. TANCREDI, L'emersione dei diritti fondamentali "assoluti" nella giurisprudenza comunitaria, in Riv. di dir. intern., 3, 2006. 65 S. STAIANO, I diritti fondamentali nelle giurisprudenze costituzionali e nelle prospettive dell'Unione europea, in VV. AA., Il diritto costituzionale comune europeo, Naples, 2002, p. 815 ff.; L. FAVOUREU, I garanti dei diritti fondamentali europei, in G. ZAGREBELSKY (edited by), Diritti e Costituzione nell'Unione europea, Rome, 2005, p. 254 ff.; M. CATARBIA, L'ora dei diritti fondamentali, in M. CATARBIA (edited by), I diritti in azione, Bologna, 2007, p. 57; lastly, A. ALAIMO, B. S. CARUSO, Dopo la politica i diritti: l'Europa sociale nel Trattato di Lisbona, in Working Papers CSDLE "Massimo d'Antona" Int, 82, 2010, passim; G. BRONZINI, I diritti dei lavoratori nelle Carte europee: il ruolo della Corte di Giustizia nei diritti fondamentali, in VV. AA., I diritti dei lavoratori nelle Carte europee dei diritti fondamentali, Naples, 2012. 66 Court of Justice of the European Union, Bectu, case C-173/99, judgment of 26 June 2000; Court of Justice of the European Union, Merino Gòmez, case C-341/01, judgment of 18 March 2004; Court of Justice of the European Union, Robinson-Stele, joined cases C-131/04 and C-257/04, judgment of 16 March 2006. 67 Court of Justice of the European Union, Schmidberger, case C-122/00, judgment of 12 June 2003. 68 Court of Justice of the European Union, Omega, case C-36/02, judgment of 14 October 2004. 143 federalismi.it - ISSN 1826-3534 |n. 3/2020
freedoms - the Court has kept balancing out social rights by a relativization process69, renouncing to any contributions legal and cultural traditions70 of the Member States’ constitutions could offer. By the line of reasoning sustaining that the safeguard of economic freedoms requires member States to remove any barriers to their exercise - albeit without discriminatory nature - it shall be read the Court’s ruling in its judgment Association belge des Consommateurs Test – Achats ASBL c. Conseil des Ministres71. Called to rule upon a preliminary question referred by the Belgian Constitutional Court claiming the incompatibility between Directive 2004/113/EC and the national transposing law, there where it allowed every insurance contract signed before 2007 to derogate from the general rule requiring equal treatment between men and women in professional insurance services (Article 5, n.2) – the Court declared the national rule invalid, on the grounds that the insurance holder’s gender must not be used as a discriminatory factor in insurance premiums and benefits. For the purpose of this paper, however, that judgment does not appear to outline new scenarios concerning the effective protection of social rights. In view of this, it’s believed the Court had recognized the principle of gender equality directly relating it to the freedom of movement72 provided by Article 3 ECT, and specifically the right to freely pursue a job and an occupation73. In other words, the claimant’s entitlement to his own insurance coverage was recognized as in accordance with the principle of elimination of barriers which, as is well known, is critical in ensuring the smooth functioning of the common market. We must add that the Court in Luxembourg operates within a body of law – as it is the European one - which does not contribute to a balanced interpretation of the relation between economic freedoms and social rights74. Re-reading Articles 9 TFEU – for which “in defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health” – 151 TFEU – “the Union and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, 69 Court of Justice of the European Union, Dominguez, case C-281/12, judgment of 15 January 2012; Hernandez, case C- 198/2013, judgment of July 10, 2014. 70 Peter Häberle, Per una dottrina della Costituzione europea, in Quaderni costituzionali, 1, 1999, p.15, ff. 71 Court of Justice of the European Union, Association belge des Consommateurs Test – Achats ASBL c. Conseil des Ministres, case C-236/09, judgment of 1 March 2011. 72 Cf. Court of Justice of the European Union, Arcelor, case C-127/07, judgment of 16 December 2008. 73 Cf. Court of Justice of the European Union, Tas-Hagen, case C-192/05, judgment of 26 October 2006. 74 See R. DEHOUSSE, The European Court of Justice. The politics of Judicial Integration, London-New York, 1998, p. 21 ff. 144 federalismi.it - ISSN 1826-3534 |n. 3/2020
shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonization while the improvement is being maintained, proper social protection, dialogue between management and labor, the development of human resources with a view to lasting high employment and the combating of exclusion” – as well as Article 3 TFEU – for which the Union “shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress” and it “shall combat social exclusion and discrimination, and shall promote social justice and protection” – it’s reasonable to conclude that the programmatic scope of these provisions (which must be substantiated with actual content through precise political choices) makes persuasive the argument of those who observed how “those very models offering little guarantee for social rights, as more liberal and less solidarist, better embody the economic freedoms and right of establishment laid down in the Treaties”75. However, in the opinion of who writes this legislative framework76 should not be used as an excuse by the European judge, from which it was reasonable to expect a greater hermeneutical effort to rebalance the significant difference in the safeguard of social rights. For example, in several judgments the Court of Justice recognized the protection of public health as functional to the freedom of establishment. In this sense it can be read the ruling concerning the authorization of prescription medicines entirely charged to the consumer, where the Court declared such authorization invalid - in so far it would concretize a restriction on the fundamental freedom of establishment77 guaranteed by the EU Treaty (Article 49) - and stated that such restrictions can only be justified on imperative grounds of general interest (Article 52, par. 1, TFEU)78. The same reasoning informs those judgments where the Court drafts the principle of a right to health as financially conditioned79. 75 See G. GRASSO, I diritti sociali e la crisi oltre lo Stato nazionale, (cited above), p. 7. As doctrine, see also F. ANGELINI, L’Europa sociale affidata alla Corte di Giustizia CE: “sbilanciamento giudiziale” versus “omogeneità costituzionale, in Studi in onore di VINCENZO ATRIPALDI, Naples, 2010, Vol. II, p. 1500. 76 Additionally, it’s worth mentioning how the constitutional reorganization of the Community introduced by the Lisbon Treaty, which now relegates human health to the complementary competence of the E.U. (Article I-17), represents a step backward compared to the previous framework. As doctrine, see P. BIANCHI, I diritti sociali dopo Lisbona: prime risposte dalla Corte di giustizia, in M. CAMPEDELLI, P. CARROZZA, L. PEPINO (edited by), Diritto di welfare. Manuale di cittadinanza e istituzioni sociali, Pisa, 2009, pag. 137 ff. 77 Court of Justice of the European Union, Polisseni, case C-217/09, judgment of 17 December 2010 and Court of Justice of the European Union, Grisoli, case C-315/08, judgment of 29 September 2011. 78 Court of Justice of the European Union, Hartlauer, case C-169/07, judgment of 10 March 2009; Court of Justice of the European Union, Apothekerkammer des Saarlandes, joined cases C-171/07 and C-172/07, judgments of 19 May 2009; Court of Justice of the European Union, Gerechtshof te’s-Hertogenbosch, case C-486/12, judgment of 12 December 2013. 79 Ex plurimis, see Court of Justice of the European Community, Muller-Fauré, case C-386/99, judgment of 13 May 2003, and Court of Justice of the European Community, Commission v. Hellenic Republic, case C-140/03, judgment of 21 April 2005. 145 federalismi.it - ISSN 1826-3534 |n. 3/2020
Despite recent signs of a greater awareness towards the fundamental nature of the right to human health80, the framework sketched here shows how the Court still is willing to guarantee only the subjective character of the right to health, leaving its content undefined. The difficult balance between financial sustainability and safeguard of the values of universality, justice and solidarity81 is also confirmed by several judments concerning the regulation of employment contracts and pension rights82. Indeed, in both judgments – the former ruling on a German legislative provision allowing employers to add a termination date in employment contracts with employees over the age of 5283; the latter addressing, with regard to homosexual civil unions84, the disparity of treatment German’s legislation had enacted towards an individual denied of his partner’s survivor’s pension85 - the Court of Justice recognized an effective protection to the disputed rights (specifically, the right to work and of social security), founding it on the safeguard of subjective positions within the general principle of non-discrimination (in the specific cases: non-discrimination on grounds of age and sexual orientation). Doing so, the Court used an interpretive technique that prevented establishing a direct link between social rights and the need to protect the human person, required to affirm any universal principle of equality among men, regardless of their status civitatis or location. As a confirmation of this, it’s also worth mentioning the Court’s ruling examining national legislations introducing limitations and constraints in social benefits granted to children of immigrant workers, with respect to the pursue and completion of a higher and a university education. Despite the sparse legislative framework the E.U. has reserved to “education” – which is mentioned only once by Article 6, let. e) TFEU, together with “vocational training, youth and sport”- the Court’s jurisprudence in those cases does not show any relevant development, as all it did was to recognize social aid for education for economically inactive students only to families of frontier workers86. 80 Recently, Court of Justice of the European Union, Petru, case C-268/2013, judgment of 9 October 2014; as doctrine, see M. CAPPELLETTI, La nobiltà sanitaria in Europa: tra casi giurisprudenziali e previsioni normative. Il caso Petru della Corte di Giustizia, in Rivista di BioDiritto, 1, 2015, p. 186 ff. 81 Cf. G. CAZZOLA, Il progetto di relazione congiunta sulla protezione sociale e sull’inclusione sociale nell’Unione Europea, in Diritto delle relazioni industriali, 3, 2006, p. 903 ff. 82 On this regard, see S. RODOTÀ, Nel silenzio della politica I giudici fanno l’Europa, in G. BRONZINI e V. PICCONE (edited by), La Carta e le Corti. I diritti fondamentali nella giurisprudenza europea multilivello, Taranto, 2007, p.23 ff. 83 Court of Justice of the European Community, Mangold, case C-144/04, judgment of 22 November 2005. 84 Court of Justice of the European Union, Romer c. Freie und Hansestadt Hamburg, case C-147/08, judgment of 10 May 2011. 85 See A. D’ALOIA, L. CAPPUCCIO, in M. CATARBIA (edited by), Dieci casi sui diritti in Europa, Bologna, 2011, p. 109 ff. 86 Ex plurimis, see Court of Justice of the European Union, Hartmann, case C-212/05, judgment of 18 July 2007; recently, Court of Justice of the European Union, Broullard, case C-590/15, order of 10 November 2016. 146 federalismi.it - ISSN 1826-3534 |n. 3/2020
This short digression of few, yet significant, judgments of the Luxembourg judge on social rights seems to draw a European social model87 essentially based on the principle of competitive solidarity88, opposed to that of redistributive solidarity, established in the majority of the Member States89. However, there are also instances where the Court, leveraging more exhaustive interpretive techniques, has granted an effective safeguard of social right. For example, with reference to the right to housing, the European Judge90 - in granting the so called “housing subsidy” to a non-Community citizen and long-term resident in Italy- affirmed the principle that measures facilitating housing for families in need are required to guarantee a dignified existence to those not provided with sufficient resource. Through a not-formalistic interpretation of Article 34 of the Charter of Fundamental Rights of the European Union (the Court’s judgment criteria showing here greater judicial sensitivity towards the factual circumstances of the case), for the first time the Court included the right to housing in the catalogue of core benefits referred to in Article 11, par.4, of Directive 203/109. It’s worth recalling that Member States are expressly prohibited to adopt legislative measures negatively impacting the principle of equal treatment between non-Community workers with residence permits and E.U national workers. Against this background, the profound social changes brought by the economic crisis invite the E.U. to a new awareness. Social inclusion, a more equitable labor market, solidarity-inspired measures to guarantee human dignity shall be the founding basis for European integration process. It seems like, despite the European Pillar of Social Rights - proclaimed and signed during the Gothenburg Social Summit in November 2017, and whose significance is after all only political and symbolic for the future of the Union – it’s still left to the Court of Luxembourg the responsibility to balance out instances of competitive market with the those of a shared level of safeguard for social rights. 4. Social rights under examination by the jurisprudence of the ECtHR. The contradictions marking the Court of Justice’s jurisprudence on social rights don’t seem to have rooted in the European Court of Human Rights, which over the years has developed an interesting jurisprudential current, through its ruling on the violation of legal positions defined as “bearing a social 87 Rif. G. BRONZINI, Il modello sociale europeo, in F. BASSANINI, G. TIBERI (edited by), Le nuove istituzioni europee. Commento al nuovo Trattato europeo, Bologna, 2008. 88 For a further investigation of this topic, see C. BERNARD, Solidarity and the Commission’s Renewed Social Agenda, in M. ROSS, Y. BORGMANN-PREBIL (edited by), Prooting solidarity in the European Union, Oxford, 2010, pp. 73 ff. 89 F. ANGELINI, L’Europa sociale affidata alla Corte di Giustizia CE: “sbilanciamento giudiziale” versus “omogeneità costituzionale, op. cit., p. 1495 ff. 90 Court of Justice of the European Union, Servet Kamberaj, case C-571/10, judgment of 24 April 2012. 147 federalismi.it - ISSN 1826-3534 |n. 3/2020
bias”. Leveraging an interpretive device famously known as “integrated approach”91 to human rights, the Court of Strasburg championed a socially-oriented reading of the catalogue of such rights while preventing any prejudice coming from national rights, which would undermine the principle of autonomy. The main effect of this activity was the creation of case-law with the merit of testing the waters of social justice, monitoring States responses when faced with expectations of social rights protection. Starting from the classic breakdown between civil-political rights and social rights, in several rulings the ECtHR even managed to reshape “programmatic” provisions of the European Social Charter into “substantive” provisions of the ECHR, guaranteeing a more effective protection of social rights92. Even more, the Court of Strasburg, through an innovative hermeneutical operation, considers the Convention itself not yet as a static regulatory framework, but dynamically as an ever-changing system from which an effective protection level of fundamental rights can be inferred93. That has made it possible for the judge of Strasburg to grant social rights even when they were not expressly mentioned by conventional provisions, thus inaugurating a new, interesting jurisprudential orientation, interpreting those rights as an economic and social extension of the fundamental rights protected by the Convention94. That extensive interpretation of the articles of the ECHR - which has in some cases resulted in a considerable extension of the sphere of holders of a given social right, to the point of outlining it as a universal right – especially occurred in relation to the right to work. Among the Court’s many judgments, it certainly stands out – for the novelty of the interpretive technique adopted – a ruling where the judge granted the respect of the right to work through an extensive interpretation of the negative declension of such right95, intended as freedom of choosing an occupation or profession, and therefore indirectly sanctioning all State legislations providing for certain categories of individuals to be prohibited from accessing various professions. Still, the turning point in the Court’s ruling on social rights was offered by its more significant judgments on social security, where it did provide an evolutive interpretation of the Convention’s provisions founded on the principle of human rights indivisibility, in perfect union with the evolution of social 91 So recalls it M. SCHEININ, Social rights, in Nordisk Administrativt, 3, 1994, p.181 ff. 92 F. OLIVIERI, La Carta sociale europea tra enunciazione dei diritti, meccanismi di controllo e applicazione nelle Corti nazionali, in Rivista del Diritto della Sicurezza Sociale, 3, 2008, p. 511. 93 On this topic, see R. BERNHARDT, Human Rights and Judicial Review: the European Court of Human Rights, in D. M. BEATTY, (edited by), Human Rights and Judicial Review, The Hague Kluwer, 1998, passim. 94 On this regard, see European Court of Human Rights, Airey c. United Kingdom, n.26, judgment of 9 October 1979, where for the first time the Court, through an extensive interpretation, ruled that many of the civil freedoms set out by the Convention had economic and social implications. 95 European Court of Human Rights, Campagnaro, Albanese e Vitiello c. Italy, recourse n.77955/01 and recourse 77962/01, judgment of 23 March 2006. 148 federalismi.it - ISSN 1826-3534 |n. 3/2020
You can also read
