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2 February 1993
Doc. 6755
1403-7/1/93-1-E
REPORT
incorporating an opinion on the draft second additional protocol
to the Social Charter of the Council of Europe,
providing for a system of collective complaints1
(Rapporteurs: Mr RATHBONE,
United Kingdom, Conservative
and Mr BEIX,
France, Socialist)
This protocol is one of four essential steps in renewing the Council of Europe's Social Charter. The others are:
- an amending protocol to clarify the roles of the supervisory bodies;
- updating of the Charter's substantive provisions;
- a more effective system of national reporting.
The Charter can thus become a frame of reference for the social initiatives of the European Community (for example, implementation of the Social Policy Protocol and agreement of the Treaty on European Union) and for legislation policy in the countries of eastern and central Europe.
I. Draft opinion
1. The Assembly welcomes unreservedly the strengthening of the supervisory system of the Social Charter by means of a collective complaints procedure.
2. It is right that this procedure should be open not only to international organisations of employers and trade unions but to national organisations of employers and to national trade unions, which are recognised as "representative" but may not be members of any international organisation.
3. It is also right in principle that international non-governmental organisations should be able to have recourse to this procedure, since the scope of the Council of Europe's Charter goes beyond the world of work and reflects the obligations of states to all persons within their jurisdiction.
4. Because of their "collective" nature, complaints must bear on the non-compliance of a state's law or practice with one or more provisions of the Charter which that state claims to accept. They will be the subject of legal appraisals by the Charter's Committee of Independent Experts - which will not accordingly be called upon to judge individual situations.
5. It remains however unclear how the Committee of Ministers can bind itself in advance to issue recommendations by pre-ordained majorities, addressed to Contracting Parties whose laws or practices are considered in non-compliance, if several or many governments challenge the reasoning or the factual basis set forth in the Independent Experts' Committee's reports.
6. In its Recommendation 1168 (1991), in the form of a proposal for a new Article 25 bis of the Charter, the Assembly sought to address this difficulty by providing for a Contracting Party to refer any dispute on interpretation of the Charter to an independent authority possibly functioning under the aegis of the European Court of Human Rights.
7. It is an open question whether the Committee of Independent Experts can achieve the status and authority to enable the system to work well without such possibility of further reference. It will also depend on the goodwill of governments and national administrations - and on resources available to the committee.
8. Since the draft protocol goes entirely in the direction of (though not quite so far as) proposals in Recommendation 1168, the Assembly gives its unqualified support.
II. Explanatory memorandum
by MM. RATHBONE and BEIX
1. The draft additional protocol and the draft explanatory report thereon are reproduced in Doc. 6730. The draft explanatory report reviews the history of the negotiations, including the role and earlier proposals of the Parliamentary Assembly. The most recent proposal of the Assembly - in the form of a proposed new Article 25 bis for the Social Charter - was presented in the Appendix to Recommendation 1168 (1991). It is set forth, for purposes of comparison, in the appendix to this document.
2. Hereunder are some proposals for adjustment of the English version of the draft protocol:
Preamble, 2nd paragraph to read:
"Resolved to take new measures to improve the practical application of the social rights protected by the Charter".
Article l (c):
Perhaps some re-drafting since presumably no complaint can be lodged before the right to submit it has been recognised.
Article 7:
If reports of the Independent Experts' Committee are confined to legal appraisals of the conformity or non-conformity of a state's law or practice with one or more provisions of the Charter which that state claims to accept, and if moreover individual situations may not be submitted as the substance of a complaint, it is difficult to see why reports should not be made simultaneously available to the Parliamentary Assembly - rather than 4 months after transmittal to the Committee of Ministers (see paragraph 8 of the Assembly's proposed new Article 25 bis (Appendix to Recommendation 1168) in Appendix II).
Article 8, paragraph 46 of the draft explanatory report
In the last section, the term "reverse" is perhaps not equivalent to the French "remettre en cause". In addition to the doubt expressed in paragraph 5 of the draft opinion, obscurity remains as to the status in international law of the independent experts' committee's "assessments".
APPENDIX
Recommendation 1168 Appendix:
proposed new Article 25 bis
(extract)
Reporting committee: Social, Health and Family Affairs Committee.
Budgetary implications for the Assembly: None.
Reference to committee: Doc. 6730, Reference No. 1839 of 1 February 1993.
Draft opinion: Unanimously adopted by the committee on 16 December 1992.
Members of the committee: MM. Pini (Chairman), Mrs Håvik, Mr Rathbone (Vice-Chairmen), Mrs Albrink, MM. Banks, Beix, Benvenuti, Bloetzer, Bowden (Alternate: Mr Cox), Curto, Danev, Diaz de Mera, Ferris, Mrs Fleetwood, MM. Foschi, Gouteyron, Gusenbauer, Mrs Haarstad, Mrs Halonen, MM. Hörcsik, Jurgens, Karakaş, Koehl, Liapis, Liberatori, Libicki, Marques, Menzel, Meyer zu Bentrup, Ottenbourgh, Miss Özver, MM. Palacios, Pécriaux, Pottakis, Psaila Savona, Mrs Ragnarsdottir, MM. Regenwetter, Reimann, Schwimmer, Mrs Soutendijk-van Appeldoorn, MM. Ternak, Wielowieyski, N ... (Alternate: Mr Fiala).
N.B. The names of the members present at the meeting are in italics.
Secretaries to the committee: Mr Hartland and Ms Meunier.