Protection of Social Rights in Times of Economic Crisis under the ECHR and the ESC: A Comparative Analysis

Regressive implementation of social rights during the recent crisis through the adoption of national ‘austerity measures’ in Europe were assessed by national and European courts and monitoring bodies. Policymakers and legal operators are confronted with an ensuing, somewhat puzzling landscape. The present contribution will focus on the apparently diverging, if not even contrasting, decisions by the ECSR and the ECtHR on the compliance with the respective treaty obligations of the States adopting the measures under review, which in some cases were exactly the same. In order to make a comparative analysis of the case law, a brief account is given of the elements of the cases, focusing on the measures under question and the grounds of the claims (section 2). While different provisions in the ESC and the ECHR might explain divergence of outcomes, arguably the most relevant factor of divergence of decisions concerns the interpretative method(s) followed by each body, in particular the varying degree of deference accorded to the national governments in the sphere of economic and social policy (section 3). Such difference in turn may be justified by the different nature of the control mechanisms. Overall, it is argued that contrasting decisions by the European bodies monitoring or adjudicating the respect for human rights in the context of the economic crisis may lead to inconsistent interpretation – and ultimately, application –of rights in the treaties. However, the analysis also shows that different procedures and outcomes do not necessarily prevent common and shared standards of protection of social rights from being shaped and effectively implemented in Europe. Four factors are relevant for truly ‘European’ social rights standards emerging as the desired outcome of an integrated system to protect human rights: a combined approach by the body exercising international control, to both international authorities and domestic choices; a complementary role to be played by the assessment of domestic law and practice ‘in the abstract’ and in relation to individual situations; a mutual reference to minimum standards as identified in each treaty system; a convergent elaboration of the ‘minimum core of the rights’ that is to be preserved under any system of human rights protection.