A New Momentum for EU Social Policy?

Right at the beginning, Prof. Sindbjerg Martinsen stressed that Social Europe is a distinct outcome of European integration that goes beyond isolated social policies. However, it does not amount to a social or a fiscal union, let alone a European social state. This limitation stems from several obstacles that have hampered the advancement of a Social Europe since the early days of the European project: strong reliance on national sovereignty, a prevalence of negative over positive integration in EU social policy, and recurring demands for simplification and deregulation. Yet, the EU’s social dimension has progressed significantly despite setbacks such as the Laval quartet, a cluster of four landmark cases of the Court of Justice of the European Union (CJEU) in the years 2007 and 2008, which constrained national labour and social policy measures.

Milestone: The European Pillar of Social Rights

Although the Treaty of Rome (1958) already entailed the free movement for workers and equal pay, Prof. Sindbjerg Martinsen highlighted the 2004 Citizen’s Rights Directive as particularly significant because it forms the main legal basis for the mobility rights of EU citizens across the Union. However, the key milestone for EU social policy was reached in 2017 with the adoption of the European Pillar of Social Rights, which remains the Union’s most important social policy programme to date. Although it is not legally binding, Prof. Sindbjerg Martinsen described it as the central reference point for EU social policy, because it created political momentum for new EU social legislation, notably the Minimum Wage Directive (2022) and the Pay Transparency Directive (2023). These legal instruments were also test cases for the resilience of the EU, because both have been challenged.

The Minimum Wage Directive enjoyed strong backing from Commission President Ursula von der Leyen from the beginning of her first term in office – not least due to the fact that, in the run-up to the presidential elections, Socialists and Democrats had made von der Leyen’s support for the Directive a condition to vote for her, Prof. Sindbjerg Martinsen said. Although the Directive includes extensive safeguards protecting Nordic wage-setting autonomy, Denmark filed an annulment case in early 2023, claiming that the EU lacked competence in matters relating to “pay”. The case revived concerns that market freedoms might once again take precedence over social rights, as had happened with the Laval quartet. However, this time the CJEU upheld the Directive in principle.

Unresolved Issues Regarding the Implementation of the Wage Transparency Directive

Another important initiative from von der Leyen’s president-elect programme 2019 was the Pay Transparency Directive. Although it is a quite substantial Directive, many Member States initially underestimated its practical implications, assuming it would amount to little more than a rather symbolic declaration on equality. However, the Directive introduces significant obligations: an individual right to pay-information and pay-comparison, a ban on pay-history questions, gender pay-gap reporting by worker categories, as well as monitoring bodies and stronger enforcement measures. Employers must therefore adapt recruitment procedures, pay-setting practices, data systems, and internal governance. Prof. Martinsen underlined that many implementation issues remained unresolved to date. For example, comparing work across sectors (e.g. nurses vs. technical specialists) was difficult and so was the answer to the question: what is work of equal value as stated in Art. 4 of the Directive? To assess this, new categories would need to be developed. She predicted that, given the complexity underlying the Directive, only a few Member States were likely to complete transposition by the June 2026 deadline.

In closing, Prof. Martinsen assessed these two Directives as “landmark acts of positive integration” that may contribute to a further legal integration of EU social policy.

Social Europe has Gained Momentum

The subsequent discussion focused on its broader implications and the future stability of Social Europe. One participant questioned whether the European Pillar of Social Rights would remain sufficiently robust if political priorities shifted again. Prof. Sindbjerg Martinsen responded that Social Europe has always fluctuated between highs and lows, but that the binding features were stronger than many had expected. Asked about the attitudes of policymakers with regard to the recent legal measures, she said that some may feel “tricked” and admitted that the current political climate makes ambitious social proposals more difficult. Nevertheless, she expressed confidence that “there will come a time when new initiatives will be possible”.

Questions were also raised regarding the implementation of the Pay Transparency Directive and the remaining scope for justifying unequal pay. Employers may still argue that pay differences were based on differing qualifications or skills, Prof. Martinsen explained. However, the burden of proof was now on the employer’s side, making future litigation more likely. In her view, the willingness of individuals to assert their rights could be an important push for substantial change.

Finally, the problem of bureaucracy was addressed and how deregulation could take place. The EU needed a balance between competitiveness and legitimate rights. Prof. Martinsen acknowledged the big scale of this challenge but doubted that major deregulation or simplification efforts would materialise in the near future – not least because many vested interests favour to maintain existing frameworks, as can be observed in environmental policy. In her assessment, the problem lay not only in the sheer number of laws, but also in their growing complexity, ambiguity and density. The European institutions had a big responsibility to counter this tendency – from the Commission and the Council to the Parliament.

As the lecture illustrated, Social Europe remains a contested field of European integration. Nevertheless, and contrary to earlier predictions, it has gained remarkable momentum over the past two decades.