Lenia Samuel, The long Way towards more Social Rights in Europe in:

Wolfgang Däubler, Reingard Zimmer (ed.)

Arbeitsvölkerrecht, page 135 - 146

Festschrift für Klaus Lörcher

1. Edition 2013, ISBN print: 978-3-8487-0674-7, ISBN online: 978-3-8452-4921-6,

Bibliographic information
IV. Rechtskreis des Europarates The long Way towards more Social Rights in Europe Lenia Samuel Einleitung Klaus Lörcher has always been a passionate advocate of the European Social Charter and has made a significant contribution to the promotion of the principles and rights set out in the Charter through his active and fruitful participation in the Governmental Committee and the ad hoc Committee which was entrusted with the task of making proposals for improving the effectiveness of the Charter. These reflections on the Charter and its future are offered in appreciation of his commitment to the ideals enshrined in the Charter, his tireless efforts in promoting those ideals and his personal friendship over the many years we have worked together. Adding social to human rights: the 1961 European Social Charter1 Soon after it was created after the 2nd World War, the Council of Europe adopted a human rights Treaty to give binding force to the rights enshrined in the Universal Declaration of Human Rights, 1948. It opted for two separate Treaties, one on civil and political rights, the European Convention on Human Rights, which was adopted in 1950 and the other on economic and social rights, the European Social Charter, which was adopted 11 years later in 1961. Together, the Convention and the Charter give full value to the principles of indivisibility, universality and interdependence of human rights. They are complementary and mutually reinforcing. The main difference between them is in their supervisory mechanisms. While the Convention makes provision for individual application to the European Court of Human Rights, the Charter has a reporting procedure and – as a real novelty – a system of complaints introduced by a Protocol to the Charter in 1995. I. II. 1 Benelhocine, C., The European Social Charter, Council of Europe Publishing, Strasbourg, 2012. Brillat, R., The European Social Charter », in International human rights monitoring mechanisms – Essays in honour of Jakob Th. Möller, 2nd revised edition, Martinus Nijhoff Publishers, 2009. In 1961 social rights were a relative novelty. Defining them and agreeing the text of the Charter was a complex task. Differences between juridical systems and the difficulty of reconciling the practice of different countries led the authors of the Charter to provide for Contracting States to choose the rights to which they agree to be bound (subject to their accepting of a specified minimum) and for some discretion in the manner in which they implement their obligations. The Charter drew inspiration from the ILO Conventions in the field of social and economic rights.It was the first international instrument to recognise the right to strike. Reforming the Charter2 Over the two decades which followed the adoption of the European Social Charter, there was concern about its implementation and the limited number of ratifications. The first steps of the reform focussed mainly on the supervisory mechanism: (1) Its heavy and slow procedure, with several bodies operating in succession, each of them giving its opinion on the national situation. (2) The lack of clarity about the respective roles of the Committee of Independent Experts (now called European Committee of Social Rights) and of the Governmental Committee. (3) The absence of any real participation of the social partners in the supervisory procedure. (4) The lack of any political sanction as to the outcome of the procedure. (5) The inadequacy of certain provisions of the Charter, which had been overtaken by new realities and needs. The Ministerial Conference in Rome in November 1990 to celebrate the 40th Anniversary of the European Convention of Human Rights agreed to re-launch of the Social Charter. With a view to helping the countries of central and eastern Europe to modernise their social policies and align their standards with those of the countries which were already members of the Council of Europe, it was necessary to have a convincing Social Charter which would promote a large range of social rights reflecting the changing needs of society at the turn of the century. III. 2 Vandamme, F., La relance de la Charte sociale européenne, Revue Quart Monde, 3/2008, p. 8-12. Darcy, J./ Harris, D., The European Social Charter Second edition; The Procedural Aspects of International Law Book Series, Volume 25, Ardsley, New York, 2001. 138 Lenia Samuel An ad hoc Committee, known as Charte-Rel, was set up to make proposals for improving the effectiveness of the Charter and particularly the functioning of its supervisory machinery – a mandate of both political and legal significance. The Committee was composed of experts appointed by each of the member states. Its meetings were attended in a non-voting capacity by representatives of the parliamentary Assembly, the ILO, the ETUC, ably represented by Klaus Loercher, and UNICE. Two important decisions were taken at the outset of the work of the Charte-Rel. First any amendments to the text of the Charter, whether aimed at improving its supervisory machinery or its substantive provisions, should not represent a lowering of the level of protection secured by the Charter. Second the reform would take into account both developments in social and economic rights as reflected in other international instruments and in the legislation of other member states and social problems not dealt with by other instruments in force. The 1991 Turin Protocol The first achievement of the Committee was the Turin Protocol which was adopted in October 1991 on the occasion of the Charter's thirtieth anniversary. This Protocol clarified the respective responsibilities of the Committee of Independent Experts and of the Governmental Committee thus putting an end to the situation where both committees were making separate appraisals of the conformity of national situations with the Charter, often and not surprisingly divergent ones, thus hampering the effectiveness and credibility of the Charter. It was established that the Committee of Independent Experts was the only body with power to rule on the conformity of national situations with the Charter, whilst the task of the Governmental Committee was to assist the Committee of Ministers by selecting, on the basis of social, economic and other policy considerations, the national situations which in its view deserved a recommendation. Even though this Protocol has not yet been ratified by four Contracting Parties to the Charter (UK, Denmark, Luxembourg and Germany), it is now in operation as a result of a unanimous decision of the Committee of Ministers taken in December 1991.The only provision of the Turin Protocol still not applied in practice is the election of the Members of the European Committee of Social Rights by the Parliamentary Assembly. The adoption of individual recommendations by the Committee of Ministers has increased the political pressure on States to conform to the findings of the European Committee of Social Rights. This is reflected in the responses of Member States and it demonstrates the increasing acceptance of the rights enshrined in the Charter. 1. The long Way towards more Social Rights in Europe 139 Yet, non-compliance, including in sensitive areas such as the right to collective action, remains an issue. The Collective Complaints Protocol The second and even more important achievement of the Charte-Rel was the 1995 Protocol which set up a collective complaints procedure. This gives International workers' and employers' organisations, national employers' organisations and trade unions and International non-governmental organisations enjoying participating status with the Council of Europe (currently 75) the right to refer breaches of the Charter to the European Committee of Social Rights: National NGOs are entitled to submit complaints only if the Member State recognises their competence to lodge complaints. So far, only Finland has done this. The European Committee of Social Rights examines complaints to establish their admissibility and decides on their merits. The decision on the merits is forwarded by the Committee to the parties concerned and to the Committee of Ministers in a report which is made public within four months. The Committee of Ministers adopts a resolution. If appropriate, it may recommend that the state concerned take specific measures to bring the situation into line with the Charter. The consequences of this Reform are threefold: (1) It has led to a much more active intervention of social partners and civil organisations thus contributing to the reinforcement of their role in the Council of Europe. This is clearly reflected in the increasing number of collective complaints. Up to now, 87 complaints have been registered (since the entry into force of the procedure in 1998). (2) It has enhanced the judicial nature of the European Committee of Social Rights, whose tasks are comparable to those of the European Court of Human Rights, thus narrowing the gap between the recognition of civil and political rights on the one hand and social and economic rights on the other. (3) It has contributed to the raising of the profile of the Charter and helped to strengthen the protection of human rights in the economic and social field. It has, for example, strengthened the rights for education for children with autism, housing rights for Roma and protection against corporal punishment of children. 2. 140 Lenia Samuel The Revised Social Charter The third achievement of the Charte-Rel Committee was the revision of the substance of the 1961 Charter, to which in the meantime four new rights had been added by the 1988 Protocol, which mainly took account of developments in the EU acquis communautaire. The revised text updated certain of the original rights of the 1961 Charter, incorporated the four rights of the 1988 Protocol and added a number of new fundamental rights. It was adopted in April 1996 by the Committee of Ministers and opened for signature on May 3rd, 1996. The negotiators of the revised text took an ambitious but realistic approach. In the areas of conditions of work and safety & health at work, where the 1961 Charter provided for additional paid holidays or reduced hours of work for workers engaged in dangerous or unhealthy occupations, the revised Charter puts the emphasis on the elimination of these risks. The reduction of working hours or additional paid holidays is now applicable only where the elimination or substantial reduction of such risks is not possible. This makes it clear that the priority is to make work safe. The protection of employed women (Article 8) was reviewed from the perspective of strengthening maternity protection – hence the increase of maternity leave to 14 weeks and the extension of the period of protection against dismissal of pregnant women – but also from the perspective of equality of treatment of men and women, which should run throughout the Charter. Hence the restriction of the provisions governing the employment of women on night work, underground work and work in dangerous and unhealthy occupations, to pregnant women, women who have recently given birth and women nursing their infants. The protection to persons with disability was completely revised to reflect advances in disability policy – in particular the move away from welfare and segregation and towards inclusion and choice. The new right guaranteed is a right "to independence, social integration and participation in the life of the community", the emphasis now being on promoting “their full social integration and participation in the life of the community mainly by measures aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure". Significant changes were also made in the area of protection of the family and children and young persons to ensure that the Charter covered all family situations, took into account the more frequent break-up of families, emphasised equality of treatment and opportunity for both men and women with family responsibilities and updated the protection offered to children and young persons by Article 7, while also extending this protection beyond the place of work. 3. The long Way towards more Social Rights in Europe 141 These considerations led to a new version of Article 17 entitled "the right of children and young persons to social, legal and economic protection", which gives everyone under the age of 18 entitlement to "sufficient and adequate institutions and services" and to protection against "negligence, violence or exploitation". Those who are deprived of their family's support are entitled to protection and special aid from the state. Moreover, children and young persons have the right of access to free primary and secondary education. To promote equality of opportunity and treatment of workers with family responsibilities, a new Article (Article 27) provides for "appropriate measures" regarding their access to and maintenance in and re-entry to employment, their conditions of employment, as well as for the provision of childcare facilities and the granting of parental leave after maternity leave. As regards Article 7, which refers almost exclusively to protection of children or young persons at work, only some minor amendments were made. Here the achievement was the inclusion of this Article among the core of the revised Charter which was increased from seven to nine Articles. Articles 30 and 31 provide important new protection against poverty and social exclusion and the right to housing respectively. Recognising that poverty is a multi-faceted problem, the new Article 30 requires States Parties to adopt a comprehensive and coordinated approach with the explicit aim of fighting poverty and social exclusion. This encompasses promoting the effective access of persons or families who live "in a situation of social exclusion or poverty" to the key policy components of the fight against poverty, i.e. employment, housing, training, education, culture and social and medical assistance. The second requirement of this Article is to review existing national measures "with a view to their adaptation to new situations, if necessary". These reviews may include consultations with social partners as well as organisations representing the persons who find themselves in a situation of poverty or social exclusion. Finally, the right to housing obliges Parties to take measures so far as possible to progressively eliminate homelessness, to promote access to housing of an adequate standard and to make the price of housing accessible to those without resources. It is disappointing, given the fundamental importance of housing, that only 12 member States have so far accepted this Article. But this is a highly innovative provision which should be of increasing significance in the future. Without it the revision of the Charter would have been incomplete. As a result of the changes outlined above, the Revised Charter is more comprehensive and more up-to-date than the old text of 1961. Furthermore the gap between 142 Lenia Samuel the European Social Charter and the European Convention of Human Rights has been significantly reduced3. The Charter’s Influence on EU Law4 The European Social Charter has exerted a visible influence in the development of a rights-based approach within EU primary law. The first time that the European Social Charter was mentioned in a text of EU primary law was in the Preamble to the European Single Act of 1986. Subsequently, a reference to the European Social Charter was included in the Preamble and cited in Article 136 EC Treaty (renumbered Article 151 TFEU following the Lisbon Treaty) on the objectives of EU social policy. According to this provision, the Union and its Member States shall "have in mind" the European Social Charter as well as the 1989 Community Charter of the Fundamental Social Rights of Workers. The European Social Charter is one of the sources for the determination of the rights set out in the EU Charter of Fundamental Rights, as can be seen in its preamble, which explicitly refers to "the Social Charters adopted… by the Council of Europe" thus referring also to the Revised European Social Charter. The European Social Charter is receiving important recognition by the CJEU. How this Court approaches rights in the European Social Charter is clearly important but the space available here precludes examining this aspect. Reflection on Further Developments5 The celebration of the 50th anniversary of the Social Charter in 2011 provided an excellent opportunity for constructive reflection on the future of this important treaty. The improvements made to the supervisory mechanism, through the Turin Protocol, but even more importantly, through the Complaints Protocol, have undoubt- IV. V. 3 Samuel, L. Fundamental Social rights, Case law of the European Social Charter; Council of Europe Publishing 2nd edition, Strasbourg, 2002. 4 De Schutter, O. (ed.) The European Social Charter : A social constitution for Europe – La Charte sociale européenne : Une constitution sociale pour l’Europe Bruylant, Bruxelles, 2010. . 5 Johanson, N./ Mikkola, M. (ed.), Reform of the European Social Charter Seminar presentations delivered on 8 and 9 February 2011 in Helsinki, Publication of the Ministry for Foreign Affairs of Finland, 2011, 90 p. Guiglia, G. The opportunities of the European Social Charter, Forum di Quaderni Costituzionali, November 2010, p. 1-23 (English version, published on www.europeanrights). The long Way towards more Social Rights in Europe 143 edly raised the status of the European Committee of Social Rights and reinforced its judicial status. Its methods and techniques of interpretation increasingly resemble those of the ECHR, as do the format of its decisions, the external impact of its case law and the many examples of the implementation of its decisions. The position of the Committee, and consequently the credibility of the Charter, would be strengthened further if the four Member States which have not yet ratified the Turin Protocol were to ratify it. The application in practice of the provisions of this Protocol for more than 20 years now by unanimous decision by the Committee of Ministers has helped to overcome the earlier division of Member States over this Protocol. The application of the only provision still not applied, i.e. the election of the Members of the European Committee of Social Rights by the Parliamentary Assembly, would enhance the legitimacy of the Committee, as an independent supervisory body. Moreover, in view of the expansion of the scope of the Charter by the Revised Charter well beyond labour rights, governments could be encouraged to nominate a more diverse range of candidates for election to the Committee. The ratification of the Collective Complaints Protocol by more than the 15 States that have so far ratified it and the granting to national NGOs of the right to submit complaints would increase the credibility of the Charter. This Protocol reinforced the role of the social partners and changed the role of the European Committee of Social Rights which now acts as a quasi-judicial body. It has proved its value because it has led to Member States taking remedial action in response to the violation of rights of vulnerable groups, children, elderly or disabled people and minorities such as the Roma. Ultimately the effectiveness of the Charter has to be judged in terms of its beneficial impact on policies and practices at the level of the Member State. If rights remain abstractions, they remain aspirations and nothing more. Raising the visibility of the conclusions of the European Committee of Social Rights, particularly at the national level, can be instrumental in creating awareness of the tremendous input which the judiciary and academics could make. The application of the Charter by domestic courts' is a development which clearly should be encouraged. As regards the revised Charter, the number of ratifications is impressive. 32 Member states of the Council of Europe have ratified it so far, and if the 11 which ratified the old Charter are added, this means that only the ratification of 4 countries is missing (Liechtenstein, Monaco, San Marino and Switzerland). Taking into account that 10 of the countries which ratified only the old Charter are Members of the EU, there should be no major problems in moving towards ratification of the revised Charter. 144 Lenia Samuel Conclusion For all the progress achieved by the Revised Charter, however we still have a long way to go towards the universal observance of social rights and civil and political rights. Now when Europe is confronted by the challenges of globalisation, rapid technological change, an ageing population and immigration, compounded by the uncertain economic and financial outlook and the serious economic and employment situation in several member States there may be a temptation to backtrack on the rights-based approach. This would be a profound mistake. I believe that policy responses that are shaped by Fundamental Rights are necessary, now more than ever, in order to maintain social cohesion and prevent current difficulties from degenerating into a major social crisis. Furthermore in the face of challenges such as Europe’s ageing population, it is more important than ever that we recognise the right of people of all ages, of both men and women, of ethnic minorities and of people with disabilities to play a full part in our economies and societies and live full, active and productive lives. Europe needs their contribution to our economies and communities. We need healthy and well educated populations. Discrimination and prejudice, ignorance and enforced idleness mean not only personal injustice but wasted human resources and they generate crime and social problems. It is too easy to assume that social and economic objectives are necessarily in conflict. It is an assumption that even the defenders of fundamental rights sometimes seem ready to make. It’s a false assumption and we need to say so – vigorously and eloquently and often. Social justice and economic growth demand the same thing: as many people as possible who are leading active and productive lives, free of wasteful and damaging prejudice and discrimination and contributing positively to the societies and communities in which they live. That is the vision which inspired and continues to inspire the European Social Charter VI. The long Way towards more Social Rights in Europe 145 The European Social Charter and the International Labour Organisation – interlinks past and present Stein Evju Introduction The International Labour Organization (ILO) is indisputably the pioneer in the field of labour standards. It was created in 1919 by the labour articles of the Treaty of Versailles,1 to reflect the belief that universal and lasting peace can be accomplished only if it is based on social justice. The fundamental principles on which the ILO is based were reaffirmed with the Philadelphia Declaration of 1944, which is an integral part of the ILO Constitution, stating in particular that: (a) labour is not a commodity;2 (b) freedom of expression and of association are essential to sustained progress; (c) poverty anywhere constitutes a danger to prosperity everywhere; (d) the war against want requires to be carried on with unrelenting vigour within each nation, and by continuous and concerted international effort in which the representatives of workers and employers, enjoying equal status with those of governments, join with them in free discussion and democratic decision with a view to the promotion of the common welfare. The leading role of the ILO in setting international labour standards was further reaffirmed by its becoming, in 1946, the first specialized agency of the then newly formed United Nations. By the principles on which it rests and its standard setting through Conventions, Recommendations and Declarations3 the ILO has influenced, and continues in many ways to influence labour standards set by other international bodies. Among them is the Council of Europe and its European Social Charter. That is the subject of this paper, that is to say the interaction and the links between the ILO, ILO standards and the European Social Charter. I. 1 Part XIII of the Peace Treaty, Articles 387–427; the latter stating the General Principles on which the organization was based. 2 See Evju, Working Paper, at ommodity%20Reppraisal.pdf, differing from O’Higgins, 16 Industrial Law Journal (1997), 225, on the history of the maxim. 3 In particular the ILO Declaration on Fundamental Principles and Rights at Work, 1998, and the ILO Declaration on Social Justice for a Fair Globalization, 2008.

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Die wachsende Bedeutung des internationalen Arbeitsrechts schlägt sich in vielen Bereichen nieder: Tarifautonomie und Streikrecht werden durch die Rechtsprechung des EGMR mitbestimmt, die ILO-Übereinkommen stellen einen Mindeststandard dar, der auch in einer Wirtschaftskrise nicht unterschritten werden darf. Nicht jeder nationale Gesetzgeber und nicht jedes Gericht hat dies aber bisher erkannt. Von daher ergeben sich viele Kontroversen, in Deutschland u. a. bei der Kündigung kirchlicher Mitarbeiter und bei der überlangen Dauer gerichtlicher Verfahren deutlich werden.

Die insgesamt 35 Autoren sind in der Wissenschaft, aber auch in internationalen Organisationen, in Ministerien und als Richter tätig. Der Band verbindet Theorie und Praxis; als Leser bekommt man nicht nur Stoff zum Nachdenken, sondern nicht selten auch ganz konkrete Handlungsanleitungen. Bislang gibt es kein vergleichbares Buch in der rechtswissenschaftlichen Literatur.