1. Introduction
1. In the present period of economic recession and more
generally in a context of ongoing globalisation that may cause threats
to social rights, it seems particularly important to review the
position of the legal instruments concerning social rights in Europe
and to continue to promote these. In this context, it should be pointed
out that, at the Warsaw Summit (16-17 May 2005), the heads of state
and government of Council of Europe member states agreed that the
revised European Social Charter (ETS No. 163) was to be regarded
as the basic core of social rights which all Council of Europe member
states should guarantee for their citizens, especially the most
vulnerable, and that it was also a means of co-ordinating social
policies.
2. With a view to ensuring continued monitoring of commitments
concerning social rights and to strengthening the promotion of the
European Social Charter as the main instrument of European social
rights, this report follows on from the previous work done on this
subject by the Parliamentary Assembly, and particularly its
Resolution 1559 (2007) on
Europe’s social dimension: full implementation of the revised European
Social Charter and evaluation of new labour regulations and minimum
wages and its
Recommendation
1795 (2007) on the monitoring of commitments concerning
social rights. The rapporteur relies on this earlier work in reiterating
and emphasising certain points, such as the Assembly’s role in the monitoring
machinery of the Charter, while at the same time taking a new look
at the Charter and its future evolution.
3. The rapporteur considers the current period to be a particularly
favourable one in which to increase the support for the European
Social Charter by member states, to reinforce the contribution of
the Assembly to the promotion of social rights and the mechanisms
surrounding the Charter, and to give increased visibility to the acquis of the Council of Europe
in the field of social rights. All efforts undertaken in this regard
during this period will contribute to honouring and showing the
importance of a set of European instruments which will celebrate two
anniversaries in 2011. The 50th anniversary of the European Social
Charter and the 15th anniversary of the revised European Social
Charter will be celebrated within the context of the festivities
to be organised in Strasbourg on 18 October 2011.
2. The Social Charter and its various treaties:
a review
2.1. Basic texts, monitoring mechanism and importance
of the Charter
4. The European Social Charter is the counterpart of
the European Convention on Human Rights (ETS No. 5) where fundamental
economic and social rights are concerned. It comprises a set of
treaties whose foundation-stones are the European Social Charter
opened for signature in 1961 (ETS No. 35; entered into force in
1965) and the 1988 Additional Protocol thereto (ETS No. 128; entered
into force in 1992), extending the rights secured by the Charter.
These are supplemented by the 1991 Amending Protocol to the Charter
(ETS No. 142) (to enter into force after all parties to the Charter
have signed) and the 1995 Additional Protocol providing for a system
of collective complaints (1995, ETS No. 158; entered into force
in 1998).
5. The revised European Social Charter of 1996 (ETS No. 163;
entered into force in 1999) combines in a single instrument the
rights secured by the 1961 Charter and the new rights and amendments
adopted by the parties. It is gradually replacing the initial treaty
of 1961. The revised Charter takes into account the evolution of
European society by including a number of new rights such as the
right to protection against poverty and social exclusion, to housing,
to protection in the event of dismissal and to protection against
sexual and psychological harassment.
6. Like the European Convention on Human Rights, the European
Social Charter is accompanied by a supervision system that ensures
the observance of these rights by the states parties. The monitoring
system in force is established by the 1961 Charter, and reinforced
by the 1991 Amending Protocol and the 1995 Additional Protocol providing
for a collective complaints procedure. It is also the 1991 Protocol
that provides for the two principal organs associated with the Charter,
a committee of independent experts, subsequently named the European
Committee of Social Rights (ECSR), and the Governmental Committee
of the European Social Charter, whose specific roles are defined
in their respective rules of procedure.
7. The ECSR has the responsibility, notably, of ruling on the
compliance of national situations with the European Social Charter,
the Additional Protocol of 1988 and the revised European Social
Charter, and of adopting “conclusions” as part of the reporting
procedure and “decisions” under the collective complaints procedure;
it is thus a quasi-judicial body. The procedure of reviewing the
application of the Charter is based on the national reports submitted
by the states parties and the collective complaints procedure introduced
by the 1995 Additional Protocol. States parties submit an annual
report on the implementation of the Charter (in law and in practice)
covering a selection of the Charter provisions which they have accepted.
The ECSR examines the reports and decides on the conformity or otherwise
of the national situations with the Charter.
8. The Governmental Committee’s function is to prepare the decisions
of the Committee of Ministers. Particularly in the light of the
reports by the ECSR and the parties, it singles out, on reasoned
grounds, according to considerations of social and economic policy,
the situations which it feels should be the subject of recommendations
to each party concerned. It presents the Committee of Ministers
with a report which is subsequently published. The Committee of
Ministers may then make a recommendation to the state in question,
asking it to alter the situation in law or in practice.
2.2. Progress made by member states in terms of ratification
and application of the Charter and related treaties since 2007
9. A very full review of the signatures and ratifications
of the revised European Social Charter was made in the context of
the report of the Social, Health and Family Affairs Committee culminating
in
Recommendation 1795
(2007). Today, the aim is therefore not to repeat the
same exercise, but to briefly recall and update the position in
respect of signatures and ratifications in the light of the changes
since 2007.
10. In
Recommendation
1795 (2007), the Assembly noted that the revised European
Social Charter had at that time been signed by 40 of the 46 Council
of Europe member states and ratified by 23 member states, but that
only France, the Netherlands and Portugal had accepted all of its
provisions. In 2010, with reference to 47 member states (since the
accession of Montenegro in 2007), the numbers have risen to 45 signatures
and 30 ratifications, thanks to another seven ratifications, by
Bosnia and Herzegovina (2008), Hungary (2009), Montenegro (2010),
Russian Federation (2009), Serbia (2009), Slovak Republic (2009)
and Turkey (2007). This tendency towards an ever-growing number
of countries subscribing to the social rights enshrined in the revised
European Social Charter is a welcome one. Notwithstanding this significant
progress, 13 member states remain bound only by the 1961 Charter,
seven of which are also bound by the 1988 Additional Protocol, which
was intended to update its substantive content.
11. The rapporteur considers that widespread support for European
social rights is assured by the fact that most member states are
parties to one of the main instruments, either the 1961 European
Social Charter or the revised European Social Charter. Only four
states – Liechtenstein, Monaco, San Marino and Switzerland – have
not ratified either of these treaties. Emphasis must, however, be
placed on the need to make further progress in this respect: only
the revised Charter corresponds to the major social issues arising
in present-day Europe (gender equality, reconciliation of work and
family life, population ageing, poverty and exclusion), so this
should be the main reference document for all Council of Europe
member states.
12. Most of the member states which have signed the revised Charter
recently, at a time when ratification of the 1961 Charter remains
possible, have clearly understood that this is the most appropriate
instrument for the current social situation in Europe. Through the
widest possible ratification of the revised Charter, member states
should finally recognise and openly flag up that social rights are
a significant component of human rights, which are one of the cornerstones
of the Council of Europe and its work. During a recent exchange
with the European Committee of Social Rights, the Secretary General
of the Council of Europe, Mr Thorbjørn Jagland, stressed the indivisibility
of human rights and the complementary nature of the Social Charter
and the European Convention on Human Rights.
13. Regular monitoring of the Social Charter must also cover the
1991 Amending Protocol (known as the Turin Protocol) and the 1995
Additional Protocol. It should be remembered that, in the Turin
Protocol, it was stated that the members of the European Committee
of Social Rights were to be subject to the same election rules as
the judges of the European Court of Human Rights. Article 3 of the
Amending Protocol stipulates that the new Article 25 of the Charter
shall read as follows: “The Committee of Independent Experts shall
consist of at least nine members elected by the Parliamentary Assembly
by a majority of votes cast from a list of experts of the highest
integrity and of recognised competence in national and international
social questions ...”. Whereas most of the states parties to the
1961 Charter or to the revised Charter are already bound by the
Turin Protocol, it still needs to be ratified by four states in
order to enter officially into force (Denmark, Germany, Luxembourg,
United Kingdom).
14. The rapporteur regrets that despite the efforts made by various
Council of Europe organs, including the Assembly itself, these four
states do not seem prepared to ratify the protocol in the near future
and that currently no other concrete measure has been taken to set
up the monitoring mechanism foreseen in the Charter.
15. The 1995 Additional Protocol, for its part, confers the right
to lodge complaints on both international and national employers’
and workers’ organisations, and on certain non-governmental organisations
(NGOs) enjoying consultative status with the Council of Europe.
To date, only 14 states have accepted the collective complaints
procedure laid down by this protocol (two of them by declaration
under Article D.2 of the revised Charter and 12 by their ratification
of the protocol), and only Finland has secured this right to national
NGOs, even though it is the NGOs that most actively uphold the rights
enshrined in the Charter. The rapporteur considers that the efforts
to remedy these situations should also be pursued further.
16. The Social Charter apparatus – overview:
Treaty
|
Substance
|
Number of ratifications
|
European Social Charter of 1961
(ETS
No. 35)
|
Fundamental social rights
|
43 member states
|
Additional Protocol of 1988
(ETS
No. 128)
|
Extension of the rights covered by the Charter
|
13 member states
|
Amending Protocol of 1991
(ETS
No. 142) (Turin Protocol)
|
Definition of the Charter’s monitoring mechanisms
(and other provisions)
|
23 member states
|
Additional Protocol of 1995
(ETS
No. 158)
|
Introduction of collective complaints
|
12 member states
|
European Social Charter (revised) of 1996 (ETS
No. 163)
|
Introduction of new rights in relation to the earlier
treaties
|
30 member states
|
2.3. Remaining obstacles to the entry into force and
implementation of all the instruments
17. In its reply to Assembly
Recommendation 1795 (2007),
the Committee
of Ministers confirmed that some areas remained where the number
of ratifications of the existing social instruments could be increased.
These included: (1) the 1991 Amending Protocol (Turin Protocol),
applied virtually in its entirety by decision of the Ministers’
Deputies, but for which four ratifications were still lacking before
it could come officially into force; (2) the collective complaints
procedure, which was currently accepted by only 14 states; and (3)
the acceptance of national NGOs’ right to submit complaints. In
this context, the Committee of Ministers invited member states to
ratify the various instruments, but at the same time pointed out,
particularly with respect to the election of members of the European
Committee of Social Rights, that member states should discuss the
question beforehand.
18. The steps taken to date with a view to the promotion of the
various social rights instruments seem to lack consistency both
within the Council of Europe and its main bodies, particularly the
Committee of Ministers and the Parliamentary Assembly, and at national
level. It is regrettable that, notwithstanding the fact that a majority of
member states have expressed their preferences with respect to the
mechanisms relating to the revised European Social Charter, not
all member states are yet clearly united in favour of the same social
rights instruments. It is a matter of deep concern that the Assembly,
which is responsible for monitoring the European Social Charter
and its other texts on a regular basis, is thus obliged to note
the same shortcomings from one monitoring exercise to the next,
without any genuine progress having been made for many years.
19. The rapporteur appreciates that the Committee of Ministers
is bound to respect the wish of certain member states to abstain
from certain ratifications, but recalls that it is also empowered
to propose and apply other measures to secure the full application
of the binding Council of Europe instruments, such as unanimous decisions
of the Committee of Ministers on individual aspects of given instruments.
As regards the Turin Protocol in particular, the Committee of Ministers
might accordingly propose that the Social Charter monitoring mechanism
providing for the election of nine members of the European Committee
of Social Rights by the Assembly be fully applied by means of a
unanimous decision of its organ, thereby making it possible for reluctant
member states not to accede to other provisions of this protocol.
2.4. Future development of the revised European Social
Charter: taking account of current challenges
20. Over and above the shortcomings which remain in terms
of signatures and ratifications, and in respect of full implementation
of the provisions concerning the monitoring mechanism, the Charter
must continue to develop in future in order to remain a European
reference instrument. As already proposed by the Assembly in
Resolution 1559 (2007),
the European Social Charter should take greater account of increasing
market liberalisation (including freedom of movement of workers
and services and freedom of establishment) and set limits to these
processes. Much more recent developments should prompt the competent
bodies to consider addressing still other issues, for example the
right to health, including to a healthy environment; a regular topic of
Assembly debates. The implementation should be reinforced concerning
other rights, such as the rights of handicapped persons to independence,
social integration and participation in the life of the community.
21. As already suggested, the developments observed on a world
scale should be taken into account to a greater extent in discussions
relating to the social rights instruments. The rapporteur reiterates
the idea of member states taking more account of the challenges
of globalisation, increasing European debate of these and raising
these discussions to global level, so that a true social impetus
is given to globalisation. He feels certain that, in this kind of
debate, the European Social Charter will be able to become the main
reference document.
22. Looking beyond the challenges already addressed above, the
rapporteur points out that the Assembly had also proposed a development
of the Charter towards a role as a reference instrument for individual complaints.
In accordance with
Recommendation
1354 (1998) on the future of the European Social Charter and
Recommendation 1415 (1999) on
an additional protocol to the European Convention on Human Rights concerning
fundamental social rights, this could be achieved by making amendments
to the two instruments concerned. All member states are invited
to bear in mind this possible ambitious development of the European Social
Charter machinery in the years to come, although it would already
be fully satisfactory if some progress could be made in terms of
the other shortcomings noted in the present report.
3. The role of the Parliamentary Assembly with regard
to the monitoring of commitments concerning social rights
23. In the present context of increasing globalisation
and the ongoing economic crisis faced by our societies, the rapporteur
is frankly in favour of a more significant role for the Assembly
as regards the promotion, monitoring and future development of the
Social Charter as a whole. This development of the Assembly’s role has
the outright support of most member states.
24. A strong role for national parliaments, represented by the
Assembly, was first acknowledged by the member states that ratified
the Turin Protocol (23), thus consenting to the Assembly’s direct
involvement in electing the 15 members of the European Committee
of Social Rights who are today all elected by the Committee of Ministers
of the Council of Europe. Thus, the Turin Protocol provides under
its Article 3, referring to the new Article 25 of the Social Charter:
“The Committee of Independent Experts shall consist of at least nine
members elected by the Parliamentary Assembly by a majority of votes
cast from a list of experts of the highest integrity and of recognised
competence in national and international social questions, nominated
by the Contracting Parties”. This function of the Assembly, explicitly
prescribed in the Social Charter’s monitoring mechanism, should,
at last, be speedily put into effect in order to place the supervision
of this central social rights instrument on a more democratic footing
and thus reinforce its legitimacy.
25. A clear majority of member states (30), in ratifying the revised
European Social Charter, also endorsed the idea of continuing to
ensure that the Social Charter would evolve and continue to be a
modern, vital instrument. Any future development of the Social Charter,
for example via the introduction of new rights, necessarily requires
a substantial contribution from the national parliaments. The Assembly
should therefore systematically develop its function as a source
of encouraging reflection and stimulating debate on social rights.
26. The Assembly’s debates should be founded in particular on
substantive reports on the honouring of social rights in the member
states; these could address the topic from different angles and,
for instance, analyse the application of European standards through
national legislation, national policies designed to implement the
relevant European or national law (exchange of good practice), or
following up specific collective complaints and their reception
by the Committee of Ministers and the member states. By proposing
current affairs debates of this kind on social rights and subsequently
ensuring conscientious reporting to the national parliaments and
governments, the Assembly would continue its own promotion of the
ratification and implementation of the Social Charter at European
level. It would furthermore be able to make a genuine impact on
the future development of social rights and on the widening of the
Council of Europe acquis to
accommodate new rights such as the right to health, a subject regularly
broached in the Assembly for some years, or still other rights awaiting
closer consideration. By thus approaching social rights from a political
rather than a legal perspective, the Assembly would moreover clearly
distinguish itself from, and complement, the legal monitoring mechanisms
already applied by the ECSR and the Committee of Ministers.
27. Substantive debates of this kind on European social rights
should moreover be held in close co-operation with the competent
Council of Europe organs, the ECSR and the Governmental Committee,
whose representatives have repeatedly signified their readiness
for an exchange with the Assembly and acted upon it forthwith: in
2010 alone, a vice-president of the ECSR had an exchange of views
with the Social, Health and Family Affairs Committee, whose chairperson
was invited to address the members of the ECSR, a body which normally
meets in private. Besides these Council of Europe organs, co-operation
should also be strengthened with other international or European
organisations such as the European Parliament, which regularly deals
with social rights in the context of its “European social dialogue”.
28. In a very tangible way, where the organisation of the Assembly’s
debates is concerned, the regular reports on social rights should
ideally supplement the biennial debates on the situation of human
rights prepared by the Committee on Legal Affairs and Human Rights,
and follow the pattern of the reports presented by the Monitoring
Committee, without unduly overlapping them but rather bringing a
complementary political focus. This procedure could also foster
a perception of social rights for what they are truly worth among
the fundamental rights upheld by the Council of Europe.
29. The rapporteur would like to point out that all too often
economic and social rights are still regarded as “ambitions” rather
than human rights, although they are embodied in the Universal Declaration
of Human Rights of 1948 and are part of many widely accepted international
treaties on human rights. This initial confusion explains to some
extent why two separate treaties were adopted by the Council of
Europe: the European Convention on Human Rights, with respect to
civil and political rights, and the European Social Charter with
respect to social and economic rights. However, the interdependence
between them has been recognised by their respective supervisory
bodies, and the Assembly, for its part, ought not to miss any opportunity
to emphasise this indivisibility of human rights.
30. Nor should it be forgotten that the European Court of Human
Rights, at a very early stage in its case law, declared that there
was no watertight division separating the sphere of social rights
from the field covered by the Convention. The European Committee
of Social Rights has stated that the Social Charter complements
the European Convention on Human Rights and that the rights guaranteed
by the Charter are not an end in themselves, but supplement the
rights enshrined in the Convention. This approach could also be
adopted by the Assembly and reflected in its own debates, so as
to ensure that these are in line with the other activities of the
Council of Europe. Lastly, with a view to the indivisibility of
human rights and social rights, it certainly seems illogical that
the Council of Europe standards relating to social rights are not
ratified by all member states in the same way as the European Convention
on Human Rights.
The present
report should once more be an occasion to convey this crucial idea
to all parties concerned by the Social Charter, namely the Committee
of Ministers and its organs, the member states, the national parliaments
and the experts on social rights.
4. Conclusions
31. In conclusion, it seems that, as it already did in
the context of
Recommendation
1795 (2007), the Assembly should again encourage the
States Parties to the European Social Charter to ensure that this instrument
becomes a true reference framework for European social policy, thus
enabling it to contribute to the development of countries’ own social
policies and legislation. The rapporteur welcomes the state of signatures and
ratifications in 2010, with clear progress having been made since
the Assembly’s previous report in 2007, but considers that the parties
to the revised European Social Charter should multiply their efforts
to comply at national level with the provisions which they have
accepted.
32. As far as the European Social Charter machinery is concerned,
the Assembly should also ask the Committee of Ministers to take
the necessary measures so that the Assembly can elect members of
the European Committee of Social Rights next time that partial renewal
of the committee membership is due, at the same time asking national
parliaments to express support for this step to their respective
governments. In addition to its own involvement in the decision-making
machinery, the Assembly should again urge member states to recognise
all the rights enshrined in the Charter, such as national NGOs’
right to submit collective complaints.
33. Looking beyond the more formal questions relating to ratification
and implementation of the various instruments, the Assembly itself
should take measures to strengthen its role as a forum encouraging
reflection and animating debates centring on social rights. In this
context, it is important to strengthen dialogue at various levels,
both within the Council of Europe with the European Committee of
Social Rights and the Governmental Committee and with outside partners,
particularly the International Labour Organization and the organs
of the European Union (European Parliament, etc.). That could also
help to raise the profile of the European Social Charter and increase
the Council of Europe’s role and impact in the field of social rights.