La recepción de la Carta Social Europea en el ordenamiento español: aspectos jurídicos, políticos e institucionales (1978-2018)

Abstract

The unquestionable relevance of the European Social Charter as an international instrument comprising the most complete list of social rights has not offered the scope that would have been desirable in the Spanish legal system for different reasons. In this respect, the internal deficits of the Treaty itself, reflected in its improvable mechanisms of compliance control, have generated a reception of its contents in a slower and imperfect national legal practice, compared to other international instruments. The frequent confusion generated by legislators must be added to the previous statement due to the European social duality and the expansive nature of the European Union law. Without ignoring these arguments, the main reason for the limited impact that the European Social Charter has had in Spain must be found, to a large extent, in the meagre interest that this Treaty has aroused in the political and institutional sphere since it was signed by our country in 1978. This situation has reversed, at least partially, in the last five years; this is due to the decisions of certain judges and courts that, in an environment of economic crisis and progressive weakening of social rights, have become aware of the European Social Charter and have proceeded to apply it as a more favourable standard of protection, declaring the national legislation inapplicable in some of the cases prosecuted for being contrary to the international commitment assumed by Spain. This judicial work, which has had a great impact on the media in a context of social questioning of the labour reforms that were carried out, triggers a sudden interest of the political actors in the European Social Charter. This study is aimed at analysing in detail the process of reception of the European Social Charter in the Spanish legal system in the period between its signature, in 1978, and the present. Together with the legal point of view, an examination of this kind must necessarily deepen into political and institutional aspects, which play a key role in the area of international normative commitments. This way, once the European Social Charter is contextualized through a panoramic view of its main contents and control mechanisms, the article pays particular attention to the political and parliamentary dimension generated around this important Treaty. The parliamentary activity in relation to the European Social Charter allows to systematize different periods that show the diverse interest that this international instrument has generated in our political class. As shown in the study, the different political parties, essential actors in our democratic system, have maintained a relatively ambiguous position in relation to the European Social Charter. From a programmatic and principled point of view, all parties, without exception, have been proclaiming the nature of the European Social Charter as a fundamental pillar of our democratic, social and legal State and the commitment of Spain to the Treaty. However, none of the political parties that have exercised government functions have materialized this commitment to the European Social Chart through the ratification of the 1995 Protocol and the revised European Social Chart. Having examined the political and institutional dimension thoroughly, the article briefly reviews the main role that judges and courts have played in the reception of the European Social Charter in our legal system. A special reference is made to the decisions of different jurisdictional bodies which, questioning the labour reforms carried out in Spain, and especially Law 3/2012, of July 6, on urgent measures for the reform of the labour market, proceed to apply the European Social Charter as the most favourable protection standard, declaring the national legislation inapplicable in some of the cases prosecuted, as it is contrary to the international commitment assumed by Spain. The political significance of the aforementioned judicial decisions, which questioned the legality of the labour reform by the Government, have included the European Social Charter into the political agenda. This has also meant that a great deal of the iuslaboralista [labour law] doctrine has been aware of the European Social Charter, which has gone from being a forgotten subject to being the subject of recurrent analysis. Finally, and closing the article, the impact of the European Social Charter on domestic legislation and collective bargaining is examined through a systematic analysis of the invocations that, from these normative areas, are made to the European Social Charter. From the study, it can be inferred that the relationship between Spain and the European Social Charter has been characterized by indifference and lack of commitment. When Spain adhered to the Treaty in 1978, there were a lot of hopes. The historical moment that was being lived in our country was projected in a desire of union with Europe, in a feeling of belonging to a collective project that was quickly going to anchor in a more symbolic than a real plane. For the last four decades, the European Social Charter has deepened into our legal system sporadically, disconnected and with little consistency. There are several reasons that can explain this situation, but, above all, the scarce relevance that the European Social Charter has had in Spain must necessarily be linked to the reduced interest that this Treaty has raised in the political class. Knowing the above, the change in the last five years as a result of the direct application of the European Social Charter by the Spanish courts must be considered as a very positive point. Thus, in this last period, the Treaty has been gradually delving into the priorities of different legal operators, although in an irregular and fragmented way, the scope of this change of trend with respect to the European Social Charter is still new, and its final assessment will depend on the possible consolidation of this orientation over time. Finally, the misgivings that the European Social Charter raises in our country show the doubts that, in general, originate about the scope and content of social rights in the new socio-economic contexts arisen as a consequence of globalization processes. Without ignoring the need to adapt the system of labour relations to new realities, any process of adjustment must inevitably include the consolidation and deepening of social rights, a collective achievement that has been presented as an indispensable instrument of social cohesion, progress and civic integration; and it is in this task that the European Social Charter is presented as an indispensable instrument. © 2017 Ministerio de Empleo y Seguridad Social. All rights reserved.