Does the EU Charter of Fundamental Rights have Added Value for Social Security?

Abstract

In this contribution the added value of the Charter in the area of social security is examined. It is concluded that Article 34 of the Charter has not created fundamental rights that can be invoked in order to improve the legal position of claimants of social security or of social assistance. This conclusion is no surprise, given the express provisions limiting the interpretation of the Charter. Instead, it is interesting to note that the Charter has, in particular, added value where the scope for interpretation has not been explicitly limited, that is where provisions are applied that are not implemented by the instrument that is disputed in a particular situation. A second added value is the doctrine of horizontal effect, which means that in some cases provisions of Directives can also be invoked in horizontal situations. This is of relevance, particularly in non-statutory social security cases. Also, the Court of Justice itself seems to have had its difficulties in applying the Charter. It is difficult to understand the consistency of the Dano and CG judgments, where in the Dano the Court claimed not to have jurisdiction to interpret the non-specific provisions in the case, yet in CG, it did so without having even been asked. In this contribution it is undertaken to analyse these judgments with a view to better understanding the added value of the Charter.

Social Security In The Fundamental Rights Case Law of The CJEU

“…Article 34 CFREU as such does not guarantee a right to a specific benefit. 68 It rather entails a duty to respect the national legislation and practices, and this particularly in those domains where the EU might have an indirect impact on EU Member States' social security and social assistance schemes. GOLDSMITH previously held: "it means that the EU should not violate this principle by a side wind in some other legislation within its competence."…”