Introduction

To remain masters of their destiny, six European countries agreed to establish among themselves a European Economic Community (EEC) in 1957. To remain masters of their creation, the national governments devised a rather unique institutional system whose fundamental features can only be amended by unanimity. In fact, to enter into force, any amendment made to the European founding treaties has always required ratification by all Member States in accordance with their respective constitutional requirements. Remarkably, this demanding procedural requirement has not precluded a spectacular ‘widening’ of the membership of what is now known as the European Union as well as a considerable ‘deepening’ of the competences conferred on the EU by its Member States. Indeed, from an organisation originally consisting of six countries with a narrow focus on economic matters, the EU has grown beyond recognition. Its twenty-seven Member States now pursue an extensive and diverse set of objectives amongst which one may mention the promotion of balanced and sustainable development of economic activities, the implementation of a common foreign and security policy and the tackling of cross-border crime. To effectively pursue these objectives, the EU has also gradually gained the power to legislate in the areas of monetary policy, social policy, environment, consumer protection, asylum and immigration, amongst other things.

INTRODUCTION

In the field of human rights, or to use a more recent term, some would say a more ‘fashionable’ one, fundamental rights, it is common to distinguish between individual rights and collective rights as well as between ‘droits-libertés’ and ‘droits-créances’. Social rights can come within each of these categories. However, it is the latter notion that is by far the most widely debated in France. Indeed, any discussion on social rights as constitutional ‘droits-créances’, that is, rights to claim a benefit or access to a service from public authorities, often tends to polemic. Also labelled ‘droits à…’ [rights to] (as opposed to ‘droits de…’ [rights of]), numerous academics have denied their justiciability and regretted the fact that their programmatic nature undermines the concept of subjective rights. These social rights as positive constitutional rights (droits-créances) will be the focus of this Section. A brief overview of the historical context surrounding their constitutional recognition (Section 2) as well as an understanding of the legal changes brought by the progressive emergence of the Conseil constitutionnel [Constitutional Council] as an effective constitutional judge (Section 3) appear imperative in order to fully appreciate the legal impact of the on-going ‘constitutionalisation’ of this particular category of fundamental rights (Section 4).

THE CONSTITUTIONAL RECOGNITION OF SOCIAL RIGHTS

Any overview of the constitutional recognition of social rights by the Preamble to the Constitution of 27 October 1946 (‘1946 Preamble’) should be preceded by a succinct presentation of the main characteristics of the founding text of French political modernity, the Declaration of Human and Civic Rights of 26 August 1789 (‘1789 Declaration’).