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10 February 1995
Doc. 7242
REQUEST FOR AN OPINION FROM THE COMMITTEE OF MINISTERS TO THE ASSEMBLY on the draft revised European Social Charter
DRAFT REVISED EUROPEAN SOCIAL CHARTER
adopted by the Committee on the European Social Charter
on 14 October 1994
Preamble
The governments signatory hereto, being members of the Council of Europe,
Considering that the aim of the Council of Europe is the achievement of greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and of facilitating their economic and social progress, in particular by the maintenance and further realisation of human rights and fundamental freedoms;
Considering that in the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950, and the Protocols thereto, the member States of the Council of Europe agreed to secure to their populations the civil and political rights and freedoms therein specified;
Considering that in the European Social Charter opened for signature in Turin on 18 October 1961 and the Protocols thereto, the member States of the Council of Europe agreed to secure to their populations the social rights specified therein in order to improve their standard of living and their social well-being.
Recalling that the Ministerial Conference on Human Rights held in Rome on 5 November 1990 stressed the need, on the one hand, to preserve the indivisible nature of all human rights, be they civil, political, economic, social or cultural and, on the other hand, to give the European Social Charter fresh impetus;
Resolved, as was decided during the Ministerial Conference held in Turin on 21 and 22 October 1991, to update and adapt the substantive contents of the Charter in order to take account in particular of the fundamental social changes which have occurred since the text was adopted;
Recognising the advantage of embodying in a revised Charter, designed progressively to take the place of the European Social Charter, the rights guaranteed by the Charter as amended, the rights guaranteed by the Additional Protocol of 1988 and to add new rights,
Have agreed as follows:
Part I
The Parties accept as the aim of their policy, to be pursued by all appropriate means both national and international in character, the attainment of conditions in which the following rights and principles may be effectively realised:
1 Everyone shall have the opportunity to earn his living in an occupation freely entered upon.
2 All workers have the right to just conditions of work.
3 All workers have the right to safe and healthy working conditions.
4 All workers have the right to a fair remuneration sufficient for a decent standard of living for themselves and their families.
5 All workers and employers have the right to freedom of association in national or international organisations for the protection of their economic and social interests.
6 All workers and employers have the right to bargain collectively.
7 Children and young persons have the right to a special protection against the physical and moral hazards to which they are exposed.
8 Employed women, in case of maternity, have the right to a special protection.
9 Everyone has the right to appropriate facilities for vocational guidance with a view to helping him choose an occupation suited to his personal aptitude and interests.
10 Everyone has the right to appropriate facilities for vocational training.
11 Everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable.
12 All workers and their dependents have the right to social security.
13 Anyone without adequate resources has the right to social and medical assistance.
14 Everyone has the right to benefit from social welfare services.
15 Disabled persons have the right to independence, social integration and participation in the life of the community.
16 The family as a fundamental unit of society has the right to appropriate social, legal and economic protection to ensure its full development.
17 Children and young persons have the right to appropriate social, legal and economic protection.
18 The nationals of any one of the Parties have the right to engage in any gainful occupation in the territory of any one of the others on a footing of equality with the nationals of the latter, subject to restrictions based on cogent economic or social reasons.
19 Migrant workers who are nationals of a Party and their families have the right to protection and assistance in the territory of any other Party.
20 All workers have the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex.
21 Workers have the right to be informed and to be consulted within the undertaking.
22 Workers have the right to take part in the determination and improvement of the working conditions and working environment in the undertaking.
23 Every elderly person has the right to social protection.
24 All workers have the right to protection in cases of termination of employment.
25 All workers have the right to protection of their claims in the event of the insolvency of their employer.
26 All workers have the right to dignity at work.
27 All persons with family responsibilities and who are engaged or wish to engage in employment have a right to do so without being subject to discrimination and as far as possible without conflict between their employment and family responsibilities.
28 Workers' representatives in undertakings have the right to protection against acts prejudicial to them and should be afforded appropriate facilities to carry out their functions.
29 All workers have the right to be informed and consulted in collective redundancy procedures.
30 Everyone has the right to protection against poverty and social exclusion.
31 Everyone has the right to housing.
Part II
The Parties undertake, as provided for in Part III, to consider themselves bound by the obligations laid down in the following articles and paragraphs.
Article 1 - The right to work
With a view to ensuring the effective exercise of the right to work, the Parties undertake:
1 to accept as one of their primary aims and responsibilities the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment;
2 to protect effectively the right of the worker to earn his living in an occupation freely entered upon;
3 to establish or maintain free employment services for all workers;
4 to provide or promote appropriate vocational guidance, training and rehabilitation.
Article 2 - The right to just conditions of work
With a view to ensuring the effective exercise of the right to just conditions of work, the Parties undertake:
1 to provide for reasonable daily and weekly working hours, the working week to be progressively reduced to the extent that the increase of productivity and other relevant factors permit;
2 to provide for public holidays with pay;
3 to provide for a minimum of four weeks annual holiday with pay;
4 to provide for additional paid holidays or reduced working hours for workers engaged in dangerous or unhealthy occupations where it has not yet been possible to eliminate or reduce sufficiently the risks inherent in such occupations;
5 to ensure a weekly rest period which shall, as far as possible, coincide with the day recognised by tradition or custom in the country or region concerned as a day of rest;
6 to ensure that workers are informed in written form, as soon as possible, and in any event not later than two months after the date of commencing their employment, of the essential aspects of the contract or employment relationship;
7 to ensure that workers performing night work benefit from measures which take account of the special nature of the work.
Article 3 - The right to safe and healthy working conditions
With a view to ensuring the effective exercise of the right to safe and healthy working conditions, the Parties undertake, in consultation with employers' and workers' organisations:
1 to formulate, implement and periodically review a coherent national policy on occupational safety, occupational health and the working environment. The primary aim of this policy shall be to improve occupational safety and health and to prevent accidents and injury to health arising out of, linked with or occurring in the course of work, particularly by minimising the causes of hazards inherent in the working environment;
2 to issue safety and health regulations;
3 to provide for the enforcement of such regulations by measures of supervision;
4 to promote the progressive development of occupational health services for all workers with essentially preventive and advisory functions.
Article 4 - The right to a fair remuneration
With a view to ensuring the effective exercise of the right to a fair remuneration, the Parties undertake:
1 to recognise the right of workers to a remuneration such as will give them and their families a decent standard of living;
2 to recognise the right of workers to an increased rate of remuneration for overtime work, subject to exceptions in particular cases;
3 to recognise the right of men and women workers to equal pay for work of equal value;
4 to recognise the right of all workers to a reasonable period of notice for termination of employment;
5 to permit deductions from wages only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreements or arbitration awards.
The exercise of these rights shall be achieved by freely concluded collective agreements, by statutory wage-fixing machinery, or by other means appropriate to national conditions.
Article 5 - The right to organise
With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.
Article 6 - The right to bargain collectively
With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake:
1 to promote joint consultation between workers and employers;
2 to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;
3 to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes;
and recognise:
4 the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.
Article 7 - The right of children and young persons to protection
With a view to ensuring the effective exercise of the right of children and young persons to protection, the Parties undertake:
1 to provide that the minimum age of admission to employment shall be fifteen years, subject to exceptions for children employed in prescribed light work without harm to their health, morals or education;
2 to provide that the minimum age of admission to employment shall be eighteen years with respect to prescribed occupations regarded as dangerous or unhealthy;
3 to provide that persons who are still subject to compulsory education shall not be employed in such work as would deprive them of the full benefit of their education;
4 to provide that the working hours of persons under eighteen years of age shall be limited in accordance with the needs of their development, and particularly with their need for vocational training;
5 to recognise the right of young workers and apprentices to a fair wage or other appropriate allowances;
6 to provide that the time spent by young persons in vocational training during the normal working hours with the consent of the employer shall be treated as forming part of the working day;
7 to provide that employed persons of under eighteen years of age shall be entitled to a minimum of four weeks' annual holiday with pay;
8 to provide that persons under eighteen years of age shall not be employed in night work with the exception of certain occupations provided for by national laws or regulations;
9 to provide that persons under eighteen years of age employed in occupations prescribed by national laws or regulations shall be subject to regular medical control;
10 to ensure special protection against physical and moral dangers to which children and young persons are exposed, and particularly against those resulting directly or indirectly from their work.
Article 8 - The right of employed women to protection of maternity
With a view to ensuring the effective exercise of the right to the protection of maternity, the Parties undertake:
1 to provide either by paid leave, by adequate social security benefits or by benefits from public funds for employed women to take leave before and after childbirth up to a total of at least fourteen weeks;
2 to consider it as unlawful for an employer to give a woman notice of dismissal during the period from the time she notifies her employer that she is pregnant until the end of her maternity leave, or to give her notice of dismissal at such a time that the notice would expire during such a period;
3 to provide that mothers who are nursing their infants shall be entitled to sufficient time off for this purpose;
4 to regulate the employment in night work of pregnant women, women who have recently given birth and women nursing their infants;
5 to prohibit the employment of pregnant women, women who have recently given birth or who are nursing their infants in underground mining and all other work which is unsuitable by reason of its dangerous, unhealthy or arduous nature and to take appropriate measures to protect the employment rights of these women.
Article 9 - The right to vocational guidance
With a view to ensuring the effective exercise of the right to vocational guidance, the Parties undertake to provide or promote, as necessary, a service which will assist all persons, including the handicapped, to solve problems related to occupational choice and progress, with due regard to the individual's characteristics and their relation to occupational opportunity: this assistance should be available free of charge, both to young persons, including schoolchildren, and to adults.
Article 10 - The right to vocational training
With a view to ensuring the effective exercise of the right to vocational training, the Parties undertake:
1 to provide or promote, as necessary, the technical and vocational training of all persons, including the handicapped, in consultation with employers' and workers' organisations, and to grant facilities for access to higher technical and university education, based solely on individual aptitude;
2 to provide or promote a system of apprenticeship and other systematic arrangements for training young boys and girls in their various employments;
3 to provide or promote, as necessary:
a adequate and readily available training facilities for adult workers;
b special facilities for the retraining of adult workers needed as a result of technological development or new trends in employment;
4 to provide or promote, as necessary, special measures for the retraining and reintegration of the long-term unemployed;
5 to encourage the full utilisation of the facilities provided by appropriate measures such as:
a reducing or abolishing any fees or charges;
b granting financial assistance in appropriate cases;
c including in the normal working hours time spent on supplementary training taken by the worker, at the request of his employer, during employment;
d ensuring, through adequate supervision, in consultation with the employers' and workers' organisations, the efficiency of apprenticeship and other training arrangements for young workers, and the adequate protection of young workers generally.
Article 11 - The right to protection of health
With a view to ensuring the effective exercise of the right to protection of health, the Parties undertake, either directly or in co-operation with public or private organisations, to take appropriate measures designed inter alia:
1 to remove as far as possible the causes of ill-health;
2 to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health;
3 to prevent as far as possible epidemic, endemic and other diseases, as well as accidents.
Article 12 - The right to social security
With a view to ensuring the effective exercise of the right to social security, the Parties undertake:
1 to establish or maintain a system of social security;
2 to maintain the social security system at a satisfactory level at least equal to that necessary for the ratification of the European Code of Social Security or the European Code of Social Security (Revised);
3 to endeavour to raise progressively the system of social security to a higher level;
4 to take steps, by the conclusion of appropriate bilateral and multilateral agreements or by other means, and subject to the conditions laid down in such agreements, in order to ensure:
a equal treatment with their own nationals of the nationals of other Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Parties;
b the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Parties.
Article 13 - The right to social and medical assistance
With a view to ensuring the effective exercise of the right to social and medical assistance, the Parties undertake:
1 to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition;
2 to ensure that persons receiving such assistance shall not, for that reason, suffer from a diminution of their political or social rights;
3 to provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent, to remove, or to alleviate personal or family want;
4 to apply the provisions referred to in paragraphs 1, 2 and 3 of this article on an equal footing with their nationals to nationals of other Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11 December 1953.
Article 14 - The right to benefit from social welfare services
With a view to ensuring the effective exercise of the right to benefit from social welfare services, the Parties undertake:
1 to promote or provide services which, by using methods of social work, would contribute to the welfare and development of both individuals and groups in the community, and to their adjustment to the social environment;
2 to encourage the participation of individuals and voluntary or other organisations in the establishment and maintenance of such services.
Article 15 - The right of persons with disabilities to independence, social integration and participation in the life of the community
With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular:
1 to take the necessary measures to provide persons with disabilities with guidance, education and vocational training in the framework of general schemes wherever possible or, where this is not possible, through specialised bodies, public or private;
2 to promote their access to employment through all measures tending to encourage employers to hire and keep in employment persons with disabilities in the ordinary working environment and to adjust the working conditions to the needs of the disabled or, where this is not possible by reason of the disability, by arranging for or creating sheltered employment according to the level of disability. In certain cases, such measures may require recourse to specialised placement and support services;
3 to promote their full social integration and participation in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.
Article 16 - The right of the family to social, legal and economic protection
With a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married and other appropriate means.
Article 17 - The right of children and young persons to social, legal and economic protection
With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in co-operation with public and private organisations, to take all appropriate and necessary measures designed:
1 a to ensure that children and young persons, taking account of the rights and duties of their parents, have the care, the assistance, the education and the training they need, in particular by providing for the establishment or maintenance of institutions and services sufficient and adequate for this purpose;
b to protect children and young persons against negligence, violence or exploitation;
c to provide protection and special aid from the state for children and young persons temporarily or definitively deprived of their family's support;
2 to provide to children and young persons a free primary and secondary education as well as to encourage regular attendance at schools.
Article 18 - The right to engage in a gainful occupation in the territory of other Parties
With a view to ensuring the effective exercise of the right to engage in a gainful occupation in the territory of any other Party, the Parties undertake:
1 to apply existing regulations in a spirit of liberality;
2 to simplify existing formalities and to reduce or abolish chancery dues and other charges payable by foreign workers or their employers;
3 to liberalise, individually or collectively, regulations governing the employment of foreign workers;
and recognise:
4 the right of their nationals to leave the country to engage in a gainful occupation in the territories of the other Parties.
Article 19 - The right of migrant workers and their families to protection and assistance
With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake:
1 to maintain or to satisfy themselves that there are maintained adequate and free services to assist such workers, particularly in obtaining accurate information, and to take all appropriate steps, so far as national laws and regulations permit, against misleading propaganda relating to emigration and immigration;
2 to adopt appropriate measures within their own jurisdiction to facilitate the departure, journey and reception of such workers and their families, and to provide, within their own jurisdiction, appropriate services for health, medical attention and good hygienic conditions during the journey;
3 to promote co-operation, as appropriate, between social services, public and private, in emigration and immigration countries;
4 to secure for such workers lawfully within their territories, insofar as such matters are regulated by law or regulations or are subject to the control of administrative authorities, treatment not less favourable than that of their own nationals in respect of the following matters:
a remuneration and other employment and working conditions;
b membership of trade unions and enjoyment of the benefits of collective bargaining;
c accommodation;
5 to secure for such workers lawfully within their territories treatment not less favourable than that of their own nationals with regard to employment taxes, dues or contributions payable in respect of employed persons;
6 to facilitate as far as possible the reunion of the family of a foreign worker permitted to establish himself in the territory;
7 to secure for such workers lawfully within their territories treatment not less favourable than that of their own nationals in respect of legal proceedings relating to matters referred to in this article;
8 to secure that such workers lawfully residing within their territories are not expelled unless they endanger national security or offend against public interest or morality;
9 to permit, within legal limits, the transfer of such parts of the earnings and savings of such workers as they may desire;
10 to extend the protection and assistance provided for in this article to self-employed migrants insofar as such measures apply;
11 to promote and facilitate the teaching of the national language of the receiving state or, if there are several, one of these languages, to migrant workers and members of their families;
12 to promote and facilitate, as far as practicable, the teaching of the migrant worker's mother tongue to the children of the migrant worker.
Article 20 - The right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex
With a view to ensuring the effective exercise of the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex, the Parties undertake to recognise that right and to take appropriate measures to ensure or promote its application in the following fields:
- access to employment, protection against dismissal and occupational reintegration;
- vocational guidance, training, retraining and rehabilitation;
- terms of employment and working conditions, including remuneration;
- career development, including promotion.
Article 21 - The right to information and consultation
With a view to ensuring the effective exercise of the right of workers to be informed and consulted within the undertaking, the Parties undertake to adopt or encourage measures enabling workers or their representatives, in accordance with national legislation and practice:
a. to be informed regularly or at the appropriate time and in a comprehensible way about the economic and financial situation of the undertaking employing them, on the understanding that the disclosure of certain information which could be prejudicial to the undertaking may be refused or subject to confidentiality; and
b. to be consulted in good time on proposed decisions which could substantially affect the interests of workers, particularly on those decisions which could have an important impact on the employment situation in the undertaking.
Article 22 - The right to take part in the determination and improvement of the working conditions and working environment
With a view to ensuring the effective exercise of the right of workers to take part in the determination and improvement of the working conditions and working environment in the undertaking, the Parties undertake to adopt or encourage measures enabling workers or their representatives, in accordance with national legislation and practice, to contribute:
a. to the determination and the improvement of the working conditions, work organisation and working environment;
b. to the protection of health and safety within the undertaking;
c. to the organisation of social and socio-cultural services and facilities within the undertaking;
d. to the supervision of the observance of regulations on these matters.
Article 23 - The right of elderly persons to social protection
With a view to ensuring the effective exercise of the right of elderly persons to social protection, the Parties undertake to adopt or encourage, either directly or in co-operation with public or private organisations, appropriate measures designed in particular:
to enable elderly persons to remain full members of society for as long as possible, by means of:
a. adequate resources enabling them to lead a decent life and play an active part in public, social and cultural life;
b. provision of information about services and facilities available for elderly persons and their opportunities to make use of them;
to enable elderly persons to choose their life-style freely and to lead independent lives in their familiar surroundings for as long as they wish and are able, by means of:
a. provision of housing suited to their needs and their state of health or of adequate support for adapting their housing;
b. the health care and the services necessitated by their state;
to guarantee elderly persons living in institutions appropriate support, while respecting their privacy, and participation in decisions concerning living conditions in the institution.
Article 24 - The right to protection in cases of termination of employment
With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise:
a. the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service;
b. the right of workers whose employment is terminated without a valid reason to adequate compensation or other appropriate relief.
To this end the Parties undertake to ensure that a worker who considers that his employment has been terminated without a valid reason shall have the right to appeal to an impartial body.
Article 25 - The right of workers to the protection of their claims in the event of the insolvency of their employer
With a view to ensuring the effective exercise of the right of workers to the protection of their claims in the event of the insolvency of their employer, the Parties undertake to provide that workers' claims arising from contracts of employment or employment relationships be guaranteed by a guarantee institution or be protected by means of a privilege, or by any other forms of protection or by a combination thereof.
Article 26 - The right to dignity at work
With a view to ensuring the effective exercise of the right of all workers to protection of their dignity at work, the Parties undertake, in consultation with employers' and workers' organisations:
1 to promote awareness, information and prevention of sexual harassment in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct;
2 to promote awareness, information and prevention of recurrent reprehensible or distinctly negative and offensive actions directed against individual workers in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct.
Article 27 - The right of workers with family responsibilities to equal opportunities and equal treatment
With a view to ensuring the exercise of the right to equality of opportunity and treatment for men and women workers with family responsibilities and between such workers and other workers, the Parties undertake:
1 to take appropriate measures:
a to enable workers with family responsibilities to enter and remain in employment, as well as to re-enter employment after an absence due to those responsibilities, including measures in the field of vocational guidance and training;
b to take account of their needs in terms of conditions of employment and social security;
c to develop or promote services, public or private, in particular child daycare services and other childcare arrangements;
2 to provide a possibility for either parent to obtain, during a period after maternity leave, parental leave to take care of a child, the duration and conditions of which should be determined by national legislation, collective agreements or practice;
3 to ensure that family responsibilities shall not, as such, constitute a valid reason for termination of employment.
Article 28 - The right of workers' representatives to protection in undertakings and facilities to be accorded to them
With a view to ensuring the effective exercise of the right of workers' representatives to carry out their functions, the Parties undertake to ensure that in the undertaking:
a. they enjoy effective protection against acts prejudicial to them, including dismissal, based on their status or activities as workers' representatives within the undertaking;
b. they are afforded such facilities as may be appropriate in order to enable them to carry out their functions promptly and efficiently, account being taken of the industrial relations system of the country and the needs, size and capabilities of the undertaking concerned.
Article 29 - The right to information and consultation in collective redundancy procedures
With a view to ensuring the effective exercise of the right of workers to be informed and consulted in situations of collective redundancies, the Parties undertake to ensure that employers shall inform and consult workers' representatives, in good time prior to such collective redundancies, on ways and means of avoiding collective redundancies or limiting their occurrence and mitigating their consequences, for example by recourse to accompanying social measures aimed, in particular, at aid for the redeployment or retraining of the workers concerned.
Article 30 - The right to protection against poverty and social exclusion
With a view to ensuring the effective exercise of the right to protection against poverty and social exclusion, the Parties undertake:
a. to take measures within the framework of an overall and co-ordinated approach to promote the effective access of persons who live or risk living in a situation of social exclusion or poverty, as well as their families, to, in particular, employment, housing, training, education, culture and social and medical assistance;
b. to review these measures with a view to their adaptation if necessary.
Article 31 - The right to housing
With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed to:
1 prevent and reduce homelessness with a view to its gradual elimination;
2 promote access to housing of an adequate standard;
3 make the price of housing accessible to those without adequate resources.
Part III
Article A - Undertakings
1 Subject to the provisions of Article B below, each of the Parties undertakes:
a to consider Part I of this Charter as a declaration of the aims which it will pursue by all appropriate means, as stated in the introductory paragraph of that part;
b to consider itself bound by at least six of the following nine articles of Part II of this Charter: Articles 1, 5, 6, 7, 12, 13, 16, 19 and 20;
c to consider itself bound by an additional number of articles or numbered paragraphs of Part II of the Charter, which it may select, provided that the total number of articles or numbered paragraphs by which it is bound is not less than 16 articles or 63 numbered paragraphs.
2 The articles or paragraphs selected in accordance with sub-paragraphs b and c of paragraph 1 of this article shall be notified to the Secretary General of the Council of Europe at the time when the instrument of ratification, acceptance, approval or accession is deposited.
3 Any Party may, at a later date, declare by notification addressed to the Secretary General that it considers itself bound by any articles or any numbered paragraphs of Part II of the Charter which it has not already accepted under the terms of paragraph 1 of this article. Such undertakings subsequently given shall be deemed to be an integral part of the ratification, acceptance, approval or accession and shall have the same effect as from the first day of the month following the expiration of a period of one month after the date of the notification.
4 Each Party shall maintain a system of labour inspection appropriate to national conditions.
Article B - Links with the European Social Charter and the 1988 Additional Protocol.
1 No Contracting Party to the European Social Charter or Party to the Additional Protocol of 5 May 1988 may ratify, accept or approve this Charter without considering itself bound by at least the provisions corresponding to the provisions of the European Social Charter and, where appropriate, of the Additional Protocol, to which it was bound.
2 Acceptance of the obligations of any provision of this Charter shall, from the date of entry into force of those obligations for the Party concerned, result in the corresponding provision of the European Social Charter and, where appropriate, of its Additional Protocol of 1988 ceasing to apply to the Party concerned in the event of that Party being bound by the first of those instruments or by both instruments.
Part IV
Article C - Supervision of the implementation of the undertakings contained in this Charter
The implementation of the legal obligations contained in this Charter shall be submitted to the same supervision as the European Social Charter.
[Article D - Collective complaints
1 The provisions of the Additional Protocol to the European Social Charter providing for a system of collective complaints shall apply to the undertakings given in this Charter for the States which have ratified the said Protocol.
2 Any State which is not bound by the Additional Protocol to the European Social Charter providing for a system of collective complaints may when depositing its instrument of ratification, acceptance or approval of this Charter or at any time thereafter, declare by notification addressed to the Secretary General of the Council of Europe, that it accepts the supervision of its obligations under this Charter following the procedure provided for in the said Protocol.]
Part V
Article E - Non-discrimination
The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.
Article F - Derogations in time of war or public emergency
1 In time of war or other public emergency threatening the life of the nation any Party may take measures derogating from its obligations under this Charter to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2 Any Party which has availed itself of this right of derogation shall, within a reasonable lapse of time, keep the Secretary General of the Council of Europe fully informed of the measures taken and of the reasons therefor. It shall likewise inform the Secretary General when such measures have ceased to operate and the provisions of the Charter which it has accepted are again being fully executed.
Article G - Restrictions
1 The rights and principles set forth in Part I when effectively realised, and their effective exercise as provided for in Part II, shall not be subject to any restrictions or limitations not specified in those parts, except such as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals.
2 The restrictions permitted under this Charter to the rights and obligations set forth herein shall not be applied for any purpose other than that for which they have been prescribed.
Article H - Relations between the Charter and domestic law or international agreements
The provisions of this Charter shall not prejudice the provisions of domestic law or of any bilateral or multilateral treaties, conventions or agreements which are already in force, or may come into force, under which more favourable treatment would be accorded to the persons protected.
Article I - Implementation of the undertakings given
1 Without prejudice to the methods of implementation foreseen in these articles the relevant provisions of Articles 1 to 31 of Part II of this Charter shall be implemented by:
a laws or regulations;
b agreements between employers or employers' organisations and workers' organisations;
c a combination of those two methods;
d other appropriate means.
2 Compliance with the undertakings deriving from the provisions of paragraphs 1, 2, 3, 4, 5 and 7 of Article 2, paragraphs 4, 6 and 7 of Article 7, paragraphs 1, 2, 3 and 5 of Article 10 and Articles 21 and 22 of Part II of this Charter shall be regarded as effective if the provisions are applied, in accordance with paragraph 1 of this article, to the great majority of the workers concerned.
Article J - Amendments
1 Any amendment to Parts I and II of this Charter with the purpose of extending the rights guaranteed in this Charter as well as any amendment to Parts III to VI of this Charter, proposed by a Party or by the Governmental Committee, shall be communicated to the Secretary General of the Council of Europe and forwarded by the Secretary General to the Parties to this Charter.
2 Any amendment proposed in accordance with the provisions of the preceding paragraph shall be examined by the Governmental Committee which shall submit the text adopted to the Committee of Ministers for approval after consultation with the Parliamentary Assembly. After its approval by the Committee of Ministers this text shall be forwarded to the Parties for acceptance.
3 Any amendment to Part I and to Part II of this Charter shall enter into force, in respect of those Parties which have accepted it, on the first day of the month following the expiration of a period of one month after the date on which three Parties have informed the Secretary General that they have accepted it.
In respect of any Party which subsequently accepts it, the amendment shall enter into force on the first day of the month following the expiration of a period of one month after the date on which that Party has informed the Secretary General of its acceptance.
4 Any amendment to Parts III to VI of this Charter shall enter into force on the first day of the month following the expiration of a period of one month after the date on which all Parties have informed the Secretary General that they have accepted it.
Part VI
Article K - Signature, ratification and entry into force
1 This Charter shall be open for signature by the member States of the Council of Europe. It shall be subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
2 This Charter shall enter into force on the first day of the month following the expiration of a period of one month after the date on which three member States of the Council of Europe have expressed their consent to be bound by this Charter in accordance with the preceding paragraph.
3 In respect of any member State which subsequently expresses its consent to be bound by this Charter, it shall enter into force on the first day of the month following the expiration of a period of one month after the date of the deposit of the instrument of ratification, acceptance or approval.
[Article L - Accession by the European Community
1 After its entry into force, the Committee of Ministers of the Council of Europe may invite the European Community to accede to this Charter, by decision taken on the majority required by Article 20.d of the Council of Europe's Statute, and by a unanimous vote of the representatives of the Contracting States entitled to sit on the Committee. The specific modalities for the accession and the consequences for the functioning of the system of supervision shall be determined by the Committee of Ministers.
2 For the European Community, if it has acceded, this Charter shall enter into force on the first day of the month following the expiration of a period of one month after the date of the deposit of the instrument of accession with the Secretary General of the Council of Europe.]
Article M - Territorial application
1 This Charter shall apply to the metropolitan territory of each Party. Each signatory may, at the time of signature or of the deposit of its instrument of ratification, acceptance or approval, specify, by declaration addressed to the Secretary General of the Council of Europe, the territory which shall be considered to be its metropolitan territory for this purpose.
2 Any signatory may, at the time of signature or of the deposit of its instrument of ratification, acceptance or approval, or at any time thereafter, declare by notification addressed to the Secretary General of the Council of Europe, that the Charter shall extend in whole or in part to a non-metropolitan territory or territories specified in the said declaration for whose international relations it is responsible or for which it assumes international responsibility. It shall specify in the declaration the articles or paragraphs of Part II of the Charter which it accepts as binding in respect of the territories named in the declaration.
3 The Charter shall extend its application to the territory or territories named in the aforesaid declaration as from the first day of the month following the expiration of a period of one month after the date of receipt of the notification of such declaration by the Secretary General.
4 Any Party may declare at a later date by notification addressed to the Secretary General of the Council of Europe that, in respect of one or more of the territories to which the Charter has been applied in accordance with paragraph 2 of this article, it accepts as binding any articles or any numbered paragraphs which it has not already accepted in respect of that territory or territories. Such undertakings subsequently given shall be deemed to be an integral part of the original declaration in respect of the territory concerned, and shall have the same effect as from the first day of the month following the expiration of a period of one month after the date of receipt of such notification by the Secretary General.
Article N - Denunciation
1 Any Party may denounce this Charter only at the end of a period of five years from the date on which the Charter entered into force for it, or at the end of any subsequent period of two years, and in either case after giving six months notice to the Secretary General of the Council of Europe who shall inform the other Parties accordingly.
2 Any Party may, in accordance with the provisions set out in the preceding paragraph, denounce any article or paragraph of Part II of the Charter accepted by it provided that the number of articles or paragraphs by which this Party is bound shall never be less than 16 in the former case and 63 in the latter and that this number of articles or paragraphs shall continue to include the articles selected by the Party among those to which special reference is made in Article A, paragraph 1, sub-paragraph b.
3 Any Party may denounce the present Charter or any of the articles or paragraphs of Part II of the Charter under the conditions specified in paragraph 1 of this article in respect of any territory to which the said Charter is applicable, by virtue of a declaration made in accordance with paragraph 2 of Article M.
Article O - Appendix
The appendix to this Charter shall form an integral part of it.
Article P - Notifications
The Secretary General of the Council of Europe shall notify the member States of the Council, the Director General of the International Labour Office and the European Community having acceded, of:
a. any signature;
b. the deposit of any instrument of ratification, acceptance, approval or accession;
c. any date of entry into force of this Charter in accordance with Articles K and L;
d. any declaration made in application of Articles A, paragraphs 2 and 3, D, paragraphs 1 and 2, F, paragraph 2, M, paragraphs 1, 2, 3 and 4;
e. any amendment in accordance with Article J;
f. any denunciation in accordance with Article N;
g. any other act, notification or communication relating to this Charter.
In witness whereof, the undersigned, being duly authorised thereto, have signed this revised Charter.
Done at ........ , the ........ , in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe, to the Director General of the International Labour Office and to the European Community having acceded.
APPENDIX TO THE REVISED EUROPEAN SOCIAL CHARTER
Scope of the Revised European Social Charter in terms of persons protected
1 Without prejudice to Article 12, paragraph 4, and Article 13, paragraph 4, the persons covered by Articles 1 to 17 and 20 to 31 include foreigners [only in so far as they are nationals of other Parties] lawfully resident or working regularly within the territory of the Party concerned, subject to the understanding that these articles are to be interpreted in the light of the provisions of Articles 18 and 19.
This interpretation would not prejudice the extension of similar facilities to other persons by any of the Parties.
2 Each Party will grant to refugees as defined in the Convention relating to the Status of Refugees, signed at Geneva on 28 July 1951 and in the Protocol of 31 January 1967, and lawfully staying in its territory, treatment as favourable as possible, and in any case not less favourable than under the obligations accepted by the Party under the said convention and under any other existing international instruments applicable to those refugees.
3 Each Party will grant to stateless persons as defined in the Convention on the Status of Stateless Persons done at New York on 28 September 1954 and lawfully staying in its territory, treatment as favourable as possible and in any case not less favourable than under the obligations accepted by the Party under the said instrument and under any other existing international instruments applicable to those stateless persons.
Part I, paragraph 18, and Part II, Article 18, paragraph 1
It is understood that these provisions are not concerned with the question of entry into the territories of the Parties and do not prejudice the provisions of the European Convention on Establishment, signed at Paris on 13 December 1955.
Part II
Article 1, paragraph 2
This provision shall not be interpreted as prohibiting or authorising any union security clause or practice.
Article 2, paragraph 6
Parties may provide that this provision shall not apply to workers:
1 having a contract or employment relationship with a total duration not exceeding one month and/or with a working week not exceeding eight hours;
2 where the contract or employment relationship is of a casual and/or specific nature, provided, in these cases, that its non-application is justified by objective considerations.
Article 3, paragraph 4
It is understood that for the purposes of this provision the functions, organisation and conditions of operation of these services shall be determined by national laws or regulations, collective agreements or other means appropriate to national conditions.
Article 4, paragraph 4
This provision shall be so understood as not to prohibit immediate dismissal for any serious offence.
Article 4, paragraph 5
It is understood that a Party may give the undertaking required in this paragraph if the great majority of workers are not permitted to suffer deductions from wages either by law or through collective agreements or arbitration awards, the exceptions being those persons not so covered.
Article 6, paragraph 4
It is understood that each Party may, insofar as it is concerned, regulate the exercise of the right to strike by law, provided that any further restriction that this might place on the right can be justified under the terms of Article G.
Article 7, paragraph 8
It is understood that a Party may give the undertaking required in this paragraph if it fulfils the spirit of the undertaking by providing by law that the great majority of persons under eighteen years of age shall not be employed in night work.
Article 8, paragraph 2
This provision shall not be interpreted as laying down an absolute prohibition. Exceptions could be made, for instance, in the following cases:
1 if an employed woman has been guilty of misconduct which justifies breaking off the employment relationship;
2 if the undertaking concerned ceases to operate;
3 if the period prescribed in the employment contract has expired.
Article 12, paragraph 4
The words "and subject to the conditions laid down in such agreements" in the introduction to this paragraph are taken to imply inter alia that with regard to benefits which are available independently of any insurance contribution, a Party may require the completion of a prescribed period of residence before granting such benefits to nationals of other Parties.
Article 13, paragraph 4
Governments not Parties to the European Convention on Social and Medical Assistance may ratify the Charter in respect of this paragraph provided that they grant to nationals of other Parties a treatment which is in conformity with the provisions of the said convention.
Article 16
It is understood that the protection afforded in this provision covers single-parent families.
Article 17
It is understood that this provision covers all persons below the age of eighteen years, unless under the law applicable to the child majority is attained earlier, without prejudice to the other specific provisions provided by the Charter, particularly Article 7.
This does not imply an obligation to provide compulsory education up to the above-mentioned age.
Article 19, paragraph 6
For the purpose of applying this provision, the term "family of a foreign worker" is understood to mean at least the worker's spouse and unmarried children, as long as the latter are considered to be minors by the receiving State and are dependent on the migrant worker.
Article 20
1 It is understood that social security matters, as well as other provisions relating to unemployment benefit, old age benefit and survivor's benefit, may be excluded from the scope of this article.
2 Provisions concerning the protection of women, particularly as regards pregnancy, confinement and the post-natal period, shall not be deemed to be discrimination as referred to in this article.
3 This article shall not prevent the adoption of specific measures aimed at removing de facto inequalities.
4 Occupational activities which, by reason of their nature or the context in which they are carried out, can be entrusted only to persons of a particular sex may be excluded from the scope of this article or some of its provisions. This provision is not to be interpreted as requiring the Parties to embody in laws or regulations a list of occupations which, by reason of their nature or the context in which they are carried out, may be reserved to persons of a particular sex.
Articles 21 and 22
1 For the purpose of the application of these articles, the term "workers' representatives" means persons who are recognised as such under national legislation or practice.
2 The terms "national legislation and practice" embrace as the case may be, in addition to laws and regulations, collective agreements, other agreements between employers and workers' representatives, customs as well as relevant case law.
3 For the purpose of the application of these articles, the term "undertaking" is understood as referring to a set of tangible and intangible components, with or without legal personality, formed to produce goods or provide services for financial gain and with power to determine its own market policy.
4 It is understood that religious communities and their institutions may be excluded from the application of these articles, even if these institutions are "undertakings" within the meaning of paragraph 3. Establishments pursuing activities which are inspired by certain ideals or guided by certain moral concepts, ideals and concepts which are protected by national legislation, may be excluded from the application of these articles to such an extent as is necessary to protect the orientation of the undertaking.
5 It is understood that where in a state the rights set out in these articles are exercised in the various establishments of the undertaking, the Party concerned is to be considered as fulfilling the obligations deriving from these provisions.
6 The Parties may exclude from the field of application of these articles, those undertakings employing less than a certain number of workers, to be determined by national legislation or practice.
Article 22
1 This provision affects neither the powers and obligations of states as regards the adoption of health and safety regulations for workplaces, nor the powers and responsibilities of the bodies in charge of monitoring their application.
2 The terms "social and socio-cultural services and facilities" are understood as referring to the social and/or cultural facilities for workers provided by some undertakings such as welfare assistance, sports fields, rooms for nursing mothers, libraries, children's holiday camps, etc.
Article 23, paragraph 1
For the purpose of the application of this paragraph, the term "for as long as possible" refers to the elderly person's physical, psychological and intellectual capacities.
Article 24
1 It is understood that for the purposes of this article the terms "termination of employment" and "terminated" mean termination of employment at the initiative of the employer.
2 It is understood that this article covers all workers but that a Contracting Party may exclude from some or all of its protection the following categories of employed persons:
a workers engaged under a contract of employment for a specified period of time or a specified task;
b workers undergoing a period of probation or a qualifying period of employment, provided that this is determined in advance and is of a reasonable duration;
c workers engaged on a casual basis for a short period.
3 For the purpose of this article the following, in particular, shall not constitute valid reasons for termination of employment:
a trade union membership or participation in union activities outside working hours, or, with the consent of the employer, within working hours;
b seeking office as, acting or having acted in the capacity of a workers' representative;
c the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
d race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
e maternity or parental leave;
f temporary absence from work due to illness or injury.
4 It is understood that compensation or other appropriate relief in case of termination of employment without valid reasons shall be determined by national laws or regulations, collective agreements or other means appropriate to national conditions.
Article 25
1 It is understood that the competent national authority may, by way of exemption and after consulting organisations of employers and workers, exclude certain categories of workers from the protection provided in this provision by reason of the special nature of their employment relationship.
2 It is understood that the definition of the term "insolvency" must be determined by national law and practice.
3 The workers' claims covered by this provision shall include at least:
a the workers' claims for wages relating to a prescribed period, which shall not be less than three months under a privilege system and eight weeks under a guarantee system, prior to the insolvency or to the termination of employment;
b the workers' claims for holiday pay due as a result of work performed during the year in which the insolvency or the termination of employment occurred;
c the workers' claims for amounts due in respect of other types of paid absence relating to a prescribed period, which shall not be less than three months under a privilege system and eight weeks under a guarantee system, prior to the insolvency or the termination of the employment.
4 National laws or regulations may limit the protection of workers' claims to a prescribed amount, which shall be of a socially acceptable level.
Article 26
It is understood that this article does not require that legislation be enacted by the Parties.
It is understood that paragraph 2 does not cover sexual harassment.
Article 27
It is understood that this article applies to men and women workers with family responsibilities in relation to their dependent children as well as in relation to other members of their immediate family who clearly need their care or support where such responsibilities restrict their possibilities of preparing for, entering, participating in or advancing in economic activity. The terms "dependent children" and "other members of their immediate family who clearly need their care and support" mean persons defined as such by the national legislation of the Party concerned.
Articles 28 and 29
For the purpose of the application of this article, the term "workers' representatives" means persons who are recognised as such under national legislation or practice.
Part III
It is understood that the Charter contains legal obligations of an international character, the application of which is submitted solely to the supervision provided for in Part IV thereof.
Article A, paragraph 1
It is understood that the numbered paragraphs may include articles consisting of only one paragraph.
Article B, paragraph 2
For the purpose of paragraph 2 of Article B, the provisions of the revised Charter correspond to the provisions of the Charter with the same article or paragraph number with the exception of:
a. Article 3, paragraph 2 of the revised Charter which corresponds to Article 3, paragraphs 1 and 3 of the Charter;
b. Article 3, paragraph 3 of the revised Charter which corresponds to Article 3, paragraphs 2 and 3 of the Charter;
c. Article 10, paragraph 5 of the revised Charter which corresponds to Article 10, paragraph 4 of the Charter;
d. Article 17, paragraph 1 of the revised Charter which corresponds to Article 17 of the Charter.
Part V
Article E
A differential treatment based on an objective and reasonable justification shall not be deemed discriminatory.
Article F
The terms "in time of war or other public emergency" shall be so understood as to cover also the threat of war.
Article I
It is understood that workers excluded in accordance with the appendix to Articles 21 and 22 are not taken into account in establishing the number of workers concerned.
Article J
The term "amendment" shall be extended so as to cover also the addition of new articles to the Charter.
DRAFT EXPLANATORY REPORT
TO THE DRAFT REVISED EUROPEAN SOCIAL CHARTER
Introduction
1. On 5 November 1990 an informal ministerial conference on human rights was held in Rome. One of the topics discussed was the European Social Charter, with the result that the Council of Europe's Committee of Ministers was invited to take the necessary steps so that a detailed study of the role, contents and operation of the European Social Charter might be undertaken as soon as possible.
2. At their 449th meeting (November - December 1990), the Ministers' Deputies decided to authorise the convening of an ad hoc committee, the Committee on the European Social Charter (Charte-Rel). Under its terms of reference, the Committee was instructed to make proposals for improving the effectiveness of the European Social Charter, and particularly the functioning of its supervisory machinery.
3. The Committee was composed of experts appointed by each member state. Its meetings were attended in a non-voting capacity by representatives of the Parliamentary Assembly, ILO, ETUC and UNICE. The Committee of Independent Experts and the Governmental Committee of the European Social Charter were also involved in the work along with several other Council of Europe committees.
4. At its twelfth meeting (10-14 October 1994), the Charte-Rel Committee adopted the draft Revised European Social Charter and decided to submit it to the Committee of Ministers for adoption.
5. [After consulting the Committee of Independent Experts and the Parliamentary Assembly], the Committee of Ministers adopted the text of the Revised Social Charter on ... and opened it for signature on the ...
6. According to the practice of the Council of Europe, this Explanatory Report has no legal value and was drafted only with a view to explaining the content of the Revised Charter. [The Committee of Ministers authorised its publication when adopting the Revised Charter.]
7. From the outset, the aim has been that amendments to the text of the Charter should under no circumstances represent a lowering of the level of protection provided for therein. It also agreed that the reform would involve taking account both of developments in social and economic rights as reflected in other international instruments and the legislation of member states and also of social problems not covered by the other international instruments in force. Furthermore, all amendments were to be made bearing in mind the need to ensure equal treatment of men and women.
8. The Revised European Social Charter takes account of developments in labour law and social policies since the Charter was drawn up in 1961. The Revised Charter is a comprehensive international treaty which brings together in a single instrument all the rights guaranteed in the Charter and the 1988 Additional Protocol, along with the amendments to these rights and the new rights adopted by the Charte-Rel Committee.
The Revised Charter has been drafted in such a way as to be an autonomous instrument, but with the same supervisory machinery as the Charter. It does not conflict with the Charter but is eventually intended to replace it.
9. The Revised Charter presents Parts I and II in the same way as they are presented in the Charter and the 1988 Additional Protocol, adding the new rights at the end of each part. This presentation was deemed preferable since it had the advantage of being familiar, of avoiding confusion with the original texts and the existing case law and of facilitating the presentation of national reports. It would also make it possible to add new rights in the future without changing the structure of the text.
10. The Revised Social Charter does not provide for denunciation of the old Charter. However, if a Contracting State accepts the provisions of the Revised Charter, the corresponding provisions of the initial Charter and its Protocol cease to apply to that state. States are therefore not simultaneously bound by undertakings at different levels.
11. The terminology used in the Revised Charter is in conformity with the model final clauses adopted by the Committee of Ministers in 1981, in particular the term "Contracting Party" in the Charter has been replaced by "Party".
Part I
12. This part corresponds to Part I of the Charter. Similar to this Part I, it contains a general statement of rights and principles setting out the aim for the policy of the Parties and each point of Part I corresponds to the Article of Part II with the same number.
13. As in the case of the Charter, Part I contains a declaration of a political nature which has to be accepted as a whole, irrespective of whether the corresponding provisions of Part II are accepted or not.
14. The wording of points 8, 15 and 17 has been brought into line with the revised Articles 8, 15 and 17. The amendments made to Articles 2, 3, 7, 10, 11, 12 and 19 have not required that any changes be made to Part I.
15. Points 20 to 23 have been taken from the Additional Protocol to the Charter of 1988 and have not been amended.
16. Points 24 to 31 correspond to the new Articles contained in the Revised Charter.
Part II
17. Part II contains the economic and social rights provided for by the Revised Charter. As in the case of the Charter, those rights may be accepted selectively subject to a minimum number of acceptances (see Article A below).
18. As there is no explanatory report to the Charter, it was considered preferable not to explain the rights contained in Part II of the Revised Charter. Only the differences with the Charter will therefore be mentioned, as well as the new provisions.
19. Articles 1 to 19 reproduce the text of the corresponding Articles of the Charter with the following differences:
Article 1 - The right to work
20. No amendment.
Article 2 - The right to just conditions of work
21. Two paragraphs have been amended (paras. 3 and 4), the others remain unchanged:
Paragraph 3
22. This provision provides for an increase of annual holidays, from the two weeks provided by the Charter to four weeks.
Paragraph 4
23. This provision, which in the Charter provides for additional paid holidays or reduced working hours for workers engaged in dangerous or unhealthy occupations, has been amended so as to reflect present-day policies which aim to eliminate the risks to which workers are exposed. The idea is that additional paid holidays or reduced working hours should only be provided where it has not been possible to eliminate or reduce sufficiently the risks inherent in dangerous or unhealthy occupations. The provision should be seen as a complement to the revised Article 3, which emphasises the prevention of occupational accidents.
24. Two new paragraphs have been added:
Paragraph 6
25. The obligation on the Parties under this paragraph is to ensure that workers are informed about the essential aspects of their contract or employment relationship.
26. The "essential aspects" of the contract or employment relationship of which workers shall be informed have not been specified in the provision. However, reference as to the minimum requirements in this respect may be found in European Community Directive (91/533) on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship (Article 2). In principle the provision covers all workers, but the appendix stipulates that two exceptions can be made, ie. Parties may provide that the provisions shall not apply to workers whose contract of employment covers a very short period of time or whose contract or employment relationship is of a casual or of a specific nature provided it is justified by objective considerations.
Paragraph 7
27. The general recognition of the fact that night work places special constraints on workers, both men and women, has led to the inclusion of this paragraph in the Revised Charter. Furthermore, whereas Article 8, para. 4a of the Charter provides that the employment of women workers in general for night work in industrial employment shall be regulated, the corresponding provision in the Revised Charter protects women only in the case of maternity. The other women previously protected by Article 8, para. 4a of the Charter are therefore covered by Article 2, para. 7 of the Revised Charter on the same conditions as men in conformity with the principle of equality. It should however be pointed out that the new provision does not require regulations.
28. The provision contains no definition of night work, which is to be provided by national legislation or practice.
Article 3 - The right to safe and healthy working conditions
29. This Article contains two new paragraphs (paras. 1 and 4) and two paragraphs (paras. 2 and 3) which, together with the preamble of the Article, correspond to Article 3, paras. 1 and 3 of the Charter and Article 3, paras. 2 and 3 of the Charter, respectively.
30. The requirement for consultation with employers' and workers' organisations which is contained in Article 3, para. 3 of the Charter has been included in the preamble of Article 3 of the Revised Charter, and consequently applies to the four paragraphs contained in Article 3 of this instrument.
Paragraph 1
31. This paragraph obliges the Parties to formulate, implement and periodically review a coherent national policy on occupational safety, occupational health and the working environment. It emphasises that the aim of this policy shall be to improve occupational safety and health and to prevent accidents and injury to health, inter alia, by minimising risks.
Paragraph 2
32. This paragraph corresponds to Article 3, paras. 1 and 3 of the Charter.
Paragraph 3
33. This paragraph corresponds to Article 3, paras. 2 and 3 of the Charter.
Paragraph 4
34. This provision provides that the Parties shall promote the progressive development of occupational health services with essentially preventive and advisory functions.
35. The terms "occupational health services" shall include the French concept of médecine du travail.
36. In the appendix it is provided that for the purposes of this provision the function, organisation and conditions of operation of occupational health services shall be determined by national laws or regulations, collective agreements or other means appropriate to national conditions.
Article 4 - The right to a fair remuneration
37. No amendment.
Article 5 - The right to organise
38. No amendment.
Article 6 - The right to bargain collectively
39. No amendment.
Article 7 - The right of children and young persons to protection
40. Three paragraphs have been amended (paras. 2, 4 and 7), the others remain unchanged:
Paragraph 2
41. The minimum age required by this provision for admission to employment in prescribed occupations regarded as dangerous or unhealthy which was not specified by the Charter, has been fixed at eighteen years in the Revised Charter.
Paragraph 4
42. The minimum age-limit provided for by this provision for regulation of the working hours has been raised to eighteen years as compared to the sixteen years provided for in the Charter.
Paragraph 7
43. The length of annual holidays with pay for young workers has been increased, from the three weeks provided in the Charter to four weeks.
Article 8 - The right of employed women to protection of maternity
44. In order to take into account the principle of equality, this Article, which corresponds to Article 8 of the Charter, has been modified so as to protect women exclusively in the case of maternity. This is a result, inter alia, of the changes made to the heading and to the introductory sentence. As stated in the heading of the provision it only applies to employed women.
45. Three paragraphs have been amended (1, 2 and 4), paragraph 3 remains unchanged:
Paragraph 1
46. As compared to the Charter, the length of maternity leave has been increased from twelve to fourteen weeks.
Paragraph 2
47. This provision of the Revised Charter extends the minimum period of protection against dismissal for pregnant women as compared to the corresponding provision of the Charter. The period runs from the time a woman notifies her employer that she is pregnant until the end of her maternity leave.
48. There are some exceptions to the protection against dismissal during this period. These exceptions have been included in an appendix to the provision. They cover inter alia cases of serious misconduct, cases in which the enterprise ceases to operate and cases in which the period prescribed in the employment contract has expired. These exceptions correspond to the case law of the Committee of Independent Experts.
Paragraph 4
49. This paragraph amends Article 8, para. 4a of the Charter. The basic idea behind it, which has been taken from ILO Convention No. 171 (Night Work) of 1990 and of European Community Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, is that regulations of the employment of women for night work are needed only in the case of maternity. It is thus more restrictive than Article 8, para. 4a of the Charter, which concerns regulation of night work for women in general, but at the same time it is wider in its scope as it is not limited to regulating night work for women in industrial employment. Article 2, para. 7 offers protection for both men and women performing night work.
50. The definition of the women workers covered by the provision has been inspired by European Community Directive (92/85). "Pregnant women" in this context shall mean pregnant workers who inform their employer of their condition, in accordance with national legislation and/or practice. By "women who have recently given birth" is meant workers who have recently given birth within the meaning of national legislation and/or national practice and who inform their employer of their condition in accordance with that legislation and/or practice. Finally, "women who are nursing their infants" refers to workers who are breastfeeding within the meaning of national legislation and/or national practice and who inform their employer of their condition in accordance with that legislation and/or practice.
Paragraph 5
51. This paragraph, which amends Article 8, para. 4b of the Charter, limits the prohibition of employment of women in underground mining and in all other work which is unsuitable by reason of its dangerous, unhealthy or arduous nature to the case of maternity as defined in the preceding paragraph. It requires Parties to take appropriate measures to protect the employment rights of the women concerned. By this it has been understood that such workers should be given the possibility to transfer to suitable work, or to be granted leave from work if a transfer is not feasible, with the payment of salary or other adequate allowance and without loss of status, seniority or access to promotion.
Article 9 - The right to vocational guidance
52. No amendment.
Article 10 - The right to vocational training
53. One paragraph has been added (para. 4), the others remain unchanged, paragraph 4 of the Charter becoming paragraph 5 of the Revised Charter.
Paragraph 4
54. The idea behind this new paragraph, which has been added to Article 10, is that it is necessary to adopt "special" measures for the re-training and reintegration of the long-term unemployed, as their possibilities of re-entering the labour market are particularly few.
Article 11 - The right to protection of health
55. One paragraph has been amended (para. 3), the others remain unchanged:
Paragraph 3
56. This paragraph corresponds to Article 11, para. 3 of the Charter, with the addition of the word "and accidents". What is required from the Parties is to follow a policy of accident prevention, but each state will be able to decide its own measures to that end.
Article 12 - The right to social security
57. One paragraph has been amended (para. 2), the others remain unchanged:
Paragraph 2
58. Reference is made in this paragraph to the European Code of Social Security and to the European Code of Social Security (Revised). Consequently, there is a dual standard in the provision: a Party having ratified the Code will be expected to maintain its social security system at the level of that instrument, whereas a Party having ratified the Revised Code will be expected to respect its obligations under the Revised Code. If a Party has not ratified either the Code or the Revised Code it is expected to have the minimum level of social security which is allowed for ratification of the Code. The difference between ILO Convention No. 102 and the Code relates to the minimum requirements as to how many Parts must be accepted for the ratification of these instruments (3 for the Convention; 6 for the Code). The ratification of the Revised Code requires a higher standard of social security than is required for the ratification of ILO Convention No. 102.
Article 13 - The right to social and medical assistance
59. No amendment.
Article 14 - The right to benefit from social welfare services
60. No. amendment.
Article 15 - The right of persons with disabilities to independence, social integration and participation in the life of the community
61. Article 15 has been amended.
62. The protection of the disabled afforded by this Article has been extended as compared to that afforded by Article 15 of the Charter, as it no longer applies only to vocational rehabilitation but to the right of persons with disabilities to independent social integration, personal autonomy and participation in the life of the community in general. The words "effective exercise of the right to independence" contained in the introductory sentence to the provision, imply, inter alia, that disabled persons should have the right to an independent life.
63. Under this provision Parties must aim to develop a coherent policy for people with disabilities. The provision takes a modern approach to how the protection of the disabled shall be carried out, for example by providing that guidance, education and vocational training be provided whenever possible in the framework of general schemes rather than in specialised institutions. An approach which corresponds to that of Recommendation No. R (92) 6 of the Committee of Ministers of the Council of Europe. It not only provides the possibility, but to a large extent obliges Parties to adopt positive measures for the disabled.
64. It is understood that the term "sheltered employment" in paragraph 2 also covers working co-operatives.
Article 16 - The right of the family to social, legal and economic protection
65. The text of the article itself has not been amended, however as the protection offered to "mothers" by Article 17 of the Charter has not been maintained in the new version of Article 17 which is contained in the Revised Charter, Article 16 of the latter instrument will now cover this group. It must be pointed out that the "mothers" in question may be single parents, but they may also be living in a couple. The protection particularly concerns women who are not covered by Article 8 and/or who are not covered by any social security scheme providing the necessary financial assistance during a reasonable period before and after confinement, as well as adequate medical care during confinement.
66. The Revised Charter contains a statement in the appendix to this provision, to the effect that the protection afforded by it also covers single-parent families.
Article 17 - The right of children and young persons to social, legal and economic protection
67. Article 17 has been amended.
68. Whereas the only general protection of children in the Charter is contained in Article 7, which refers almost exclusively to the protection of children at work, this Article of the
Revised Charter offers protection for children and young persons outside the context of work and addresses the special needs arising from their vulnerability.
69. The provision protects children, irrespective of such factors as their birth status and the marital status of their parents. In confirmation of the case law of the Committee of Independent Experts according to which certain rights, such as the right of children to inheritance, are covered by Article 17 of the Charter, the word "legal" has been added to its title.
70. The appendix to Article 17 defines the scope of the provision in that it covers all persons below the age of eighteen years, unless under the law applicable to the child majority is attained earlier. The provision covers these children without prejudice to the other specific provisions provided by the Charter, particularly Article 7.
Paragraph 1
71. The word "parents" in paragraph 1a should be understood as also including legal guardians or other individuals legally responsible for the child.
Paragraph 2
72. Under this paragraph, children and young persons have the right to access to free primary and secondary education, which does not imply that they have a right to exercise this right for example in a private school.
73. It follows from the appendix that this paragraph does not imply an obligation to provide compulsory education up to the age of eighteen years. The reason that there is no mention of compulsory education in the paragraph itself is that in some states only primary education is compulsory, whereas in others secondary education is also compulsory.
Article 18 - The right to engage in a gainful occupation in the territory of other Parties
74. No amendment.
Article 19 - The right of migrant workers and their families to protection and assistance
75. Paragraphs 1 to 10 have not been amended.
Paragraph 6
76. Only the appendix to paragraph 6, which gives the definition of the term "family of a foreign worker", has been amended as compared to the appendix to the corresponding provision the Charter. Instead of covering the migrant worker's wife, it now covers the spouse of the migrant worker, whether a wife or a husband. Furthermore, the appendix now provides that unmarried children of migrant workers are covered as long as they are considered to be
minors by the receiving state and are dependent on the migrant worker. This amendment has been made as the age of majority is eighteen years in most States Parties to the Charter whereas the Charter provides for an age-limit of twenty-one years for the entry of children of migrant workers. The words "at least" have been maintained to indicate that states may decide to extend the notion of the family of the migrant worker.
77. Two new paragraphs have been added:
Paragraph 11
78. This paragraph has been considered important for the protection of migrant workers' health and safety at work and for the guarantee of their rights in other respects relating to work, as well as in facilitating their integration and that of their families.
Paragraph 12
79. The underlying reason for this paragraph is the importance for the children of migrant workers of maintaining their cultural and linguistic heritage, inter alia in order to provide them with a possibility of reintegration if and when the migrant worker returns home.
80. Articles 20 to 23 correspond to the provisions of Articles 1 to 4 of the Additional Protocol of 1988. Paragraphs 2, 3 and 4 of Article 1, paragraph 2 of Article 2 and paragraph 2 of Article 3 have been moved to the Appendix for the purposes of harmonisation. This change does not affect the nature and scope of the legal obligations accepted under these provisions.
81. Articles 24 to 31 are new provisions which guarantee the following rights:
Article 24 - The right to protection in cases of termination of employment
82. This provision, which must be accepted in its entirety, sets out two general principles:
a. the right not to be dismissed unless there are valid grounds;
b. the right to adequate compensation or other relief in cases of unfair dismissal.
83. It further establishes the right for a worker who considers that his rights under a. have been interfered with to an appeal to obtain, if appropriate, his rights under b.
84. The provision has been inspired by ILO Convention No. 158 (Termination of Employment) of 1982. As to the nature of the impartial body mentioned in the last paragraph of the Article, reference is made to Article 8 of the ILO Convention.
85. The appendix clarifies the terms "termination of employment" and "terminated" which shall mean termination of employment at the initiative of the employer.
86. The second paragraph of the appendix deals with the scope ratione personae of the provision. It makes it possible for the Parties to exclude some categories of employed persons from its scope.
87. The third paragraph of the appendix contains a non-exhaustive list of non-valid grounds for termination of employment.
88. The fourth paragraph of the appendix clarifies that compensation or other appropriate relief in case of termination of employment without valid reasons shall be determined by national laws or regulations, collective agreements or other means appropriate to national conditions.
Article 25 - The right of workers to the protection of their claims in the event of the insolvency of their employer
89. This provision has been inspired by ILO Convention No. 173 (Protection of workers' claims (Employers' insolvency)) of 1992 and of European Community Directive (80/987) on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer. It lays down the general principle of the right of workers to protection of their claims in the event of the insolvency of their employer.
90. It not only provides for the possibility of a guarantee institution or a privilege system, but also for any other forms of protection or for a combination of the various forms of protection.
91. The first paragraph of the appendix prescribes that certain categories of workers may be excluded by reason of the special nature of their employment relationship. The workers concerned are particularly public employees and managerial staff in small undertakings.
92. The second paragraph of the appendix states that the term "insolvency" must be determined by national law and practice. It is understood that this term shall include the situation where proceedings have been opened relating to an employer's assets with a view to the collective reimbursement of his creditors, but may also apply to other situations in which workers' claims cannot be paid by reason of the financial situation of the employer, for example, where the amount of the employer's assets is recognised as being insufficient to justify the opening of insolvency proceedings.
93. The third paragraph of the appendix sets out the minimum requirement according to which claims shall be protected. The "other types of paid absence" referred to in sub-paragraph c. have the same sense as in the ILO Convention.
94. Finally, the fourth paragraph of the appendix provides that national laws or regulations may limit the protection of workers' claims to a prescribed amount, which must nevertheless be of a socially acceptable level.
Article 26 - The right to dignity at work
95. The purpose of this Article is to guarantee workers the right to dignity at work and in connection with work. It emphasises the promotion of awareness and prevention of sexual harassment and victimisation, but does not require that Parties ensure protection against such conduct. In addition, it follows from the appendix that Parties do not need to enact legislation. However, they are required to take "all appropriate measures" to protect workers.
96. The two paragraphs contained in the Article may be accepted separately.
Paragraph 1
97. This paragraph deals exclusively with sexual harassment, which may be defined as unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of workers, including the conduct of superiors and colleagues.
Paragraph 2
98. This paragraph aims at forms of victimising conduct affecting the right to dignity at work (victimisation - bullying) other than sexual harassment and has been defined in the text of the provision itself. The definition has been taken from an existing national regulation dealing with this problem and comprises recurrent reprehensible or distinctly negative and offensive acts by superiors and colleagues affecting the dignity of a worker in the workplace or in relation with work. Taking an example, a worker may be systematically excluded from discussions relating to the organisation of work to which his colleagues are invited to take part for reasons of the employer's and/or his colleagues' personal dislike of him. Another example could be not giving a worker an office or duties corresponding to his grade and functions for similar reasons.
99. The appendix specifies that this paragraph does not cover sexual harassment.
Article 27 - The right of workers with family responsibilities to equal opportunities and equal treatment
100. This provision provides for equality of opportunity and treatment for workers with family responsibilities. It has been inspired by ILO Convention No. 156 (Workers with Family Responsibilities) of 1981 as well as Recommendation No. 165 (Workers with Family Responsibilities) of 1981.
101. The appendix to this Article gives a definition of men and women workers with family responsibilities. It refers to national legislation for a definition of the terms "dependent children" and "other members of their immediate family who clearly need their care and support".
Paragraph 1
102. The term "appropriate" in this paragraph shall mean suitable to national conditions and possibilities.
103. Sub-paragraph b. corresponds to Article 4, paragraph b of the ILO Convention.
Article 28 - The right of workers' representatives to protection in undertaking and facilities to be accorded to them
104. This provision of the Revised Charter aims to protect workers' representatives in the enterprise, a group which is not covered by Article 5 unless the workers' representative is also a trade union representative. The provision has been inspired by ILO Convention No. 135 (Workers' Representatives) of 1971.
105. A definition of the term "workers' representatives" is given in the appendix to the Article which describes it as meaning persons who are recognised as such under national legislation or practice. This definition is based on that of the appendix to Articles 21 and 22. It is understood that national legislation or practice may provide that workers' representatives are elected representatives or trade union delegates.
106. The second sub-section of the Article, which corresponds to Article 2 of the ILO Convention, provides that workers' representatives shall be afforded such facilities as will enable them to carry out their functions. The only limitation in the context of the Revised Charter is that account shall be taken of the industrial relations system of the country and the needs, size and capabilities of the undertaking concerned. Examples of facilities to be granted to workers' representatives may be found in ILO Recommendation No. 143 (Workers' Representatives) of 1971.
Article 29 - The right to information and consultation in collective redundancy procedures
107. Under this Article the Parties undertake to ensure that employers inform and consult workers' representatives prior to collective redundancies. When drafting this article the Committee looked at European Community Directive No. 92/56 of 1992 amending Directive No. 75/129 on the approximation of the laws of the member states relating to collective redundancies and at ILO Convention No. 158 (Termination of Employment) of 1982. The information and consultation shall concern the possibilities of avoiding collective redundancies or limiting their number or mitigating their consequences. Recourse to social measures providing aid for redeploying or retraining the workers concerned is mentioned as an example of ways of mitigating the consequences of collective redundancies.
108. It is understood that recourse to social measures in this context is not solely the responsibility of the employer.
109. A definition of the term "workers' representatives" is given in the appendix to the Article as meaning persons recognised as such under national legislation or practice. This definition is based on that of the appendix to Articles 21 and 22.
Article 30 - The right to protection against poverty and social exclusion
110. This Article provides for a comprehensive and co-ordinated approach, with relief of poverty and social exclusion as the essential and explicit aim. It also provides that measures corresponding to this approach are reviewed and adapted to new situations.
111. The purpose of the Article is not to repeat the juridical aspects of the protection covered by other Articles of the Charter, although Parties may naturally refer to information given in respect of other provisions when reporting under this provision.
112. The term "poverty" in this context covers persons who find themselves in various situations ranging from severe poverty, which may have been perpetuated for several generations, to temporary situations entailing a risk of poverty. The term "social exclusion" refers to persons who find themselves in a position of extreme poverty through an accumulation of disadvantages, who suffer from degrading situations or events, from exclusion or a denial of rights lasting over long periods of time or for reasons of concurring circumstances. However, social exclusion also strikes or risks to strike persons who without being poor are denied access to certain rights or services as a result of long periods of illness, separation from their families, violence, release from prison or marginalisation as a result for example of alcoholism or drug addiction.
113. It must be noted that the Article does not expressly mention the guarantee of minimum resources. The reason is that such protection is already provided for by Article 13 of the Revised Charter and covered by this Article of the Revised Charter where reference is made in paragraph a. to "effective access to .... social assistance".
114. The review of mechanisms under paragraph b. of the Article is of a general character and each Party shall decided how to organise the review, depending on national conditions. This review may, in order for the measures mentioned in the provision to be effective, include consultations with the social partners and various other organisations, including organisations representing persons who find themselves in a situation of poverty or social exclusion.
Article 31 - The right to housing
115. In order to ensure a right to housing, this provision obliges Parties to take measures aiming to progressively eliminate homelessness, to promote access to housing of an adequate standard and to make the price of housing accessible to those without adequate resources. By housing of an "adequate standard" is meant housing which is of an acceptable standard with regard to health requirements. For a definition of the terms "without adequate resources" reference is made to Article 13.
Part III
Article A - Undertakings
116. Article A, concerning undertakings, follows the same pattern as the corresponding provision, ie. Article 20 of the Charter.
117. As is the case in the Charter, paragraph 1 a. obliges states to consider themselves bound by all the aims put forward in Part I.
118. Paragraph 1 b. determines the extent of the hard core of the Revised Charter, which comprises Articles 1, 5, 6, 7, 12, 13, 16, 17, 19 and 20. In relation to the Charter, two new Articles, 7 and 20, have been added in view of their particular importance.
119. Consequently, the number of hard core articles which have to be accepted by Parties has been increased to six.
120. Following a proposal from the organisations representing management and labour, the Committee had originally planned to make Articles 5 and 6 of the Revised Charter compulsory. This would have meant that no state could have ratified the Revised Charter without agreeing to be bound by these two provisions. This was motivated by the particular and fundamental importance which these two provisions have always had for the protection of economic and social rights. However, the Committee finally decided not to make acceptance of Articles 5 and 6 compulsory, in order not to detract from the existing flexibility of this legal instrument, which is entirely constructed on an à la carte basis. The Committee also considered that making acceptance of Articles 5 and 6 compulsory might slow down the ratification of the Revised Charter. It therefore decided against doing so, with a view to enabling more states to accept the new and amended provisions in the Revised Charter. However, states which ratify the Revised Charter must take all possible steps to accept Articles 5 and 6 as rapidly as possible.
121. Paragraph 1 c. relates to the corresponding provision in Article 20 of the Charter. It establishes the minimum number of Articles or paragraphs which a state must accept on ratification of the Revised Charter. The Committee thought it preferable to keep the same proportion between the minimum number of provisions which must be accepted and the total number of provisions contained in the Revised Charter. Accordingly, it decided that states must accept not less than 16 Articles, instead of 10 as previously, or 63 paragraphs, instead of 45 as previously.
122. Paragraphs 2, 3 and 4 of Article A reiterate, mutatis mutandis, the corresponding provisions of the Social Charter.
Article B - Links with the European Social Charter and the Additional Protocol of 1988
123. The purpose of paragraph 1 of Article B is to ensure that the undertakings entered into by states under the Charter are replaced by those which they have accepted under the Revised Charter, upon ratification of the latter. In practice this means that, for states which have ratified the Revised Charter, Parts I and II of the latter will replace Parts I and II of the Charter. For reasons of clarity and legal certainty, it is essential that states should not be bound by two sets of substantive provisions, some of which may be at variance as a result of the revision of the Charter.
124. Paragraph 2 has another specific purpose, namely to ensure that when states ratify the Revised Charter they do not implicitly denounce certain provisions of the Charter. States which accepted more than the minimum number of provisions established by Article 20 of the Charter might be tempted, when ratifying the Revised Charter, not to be bound by certain provisions of the Revised Charter corresponding to provisions of the Charter which they had previously accepted. This might apply, for example, to provisions with which, in the opinion of the supervisory bodies, the states in question do not comply. Of course, it will always be possible for states to denounce certain provisions of the Charter, in accordance with the relevant provisions thereof, before ratifying the Revised Charter. However, the denunciation must be explicit, not implicit.
125. For this purpose, the appendix to Article B para. 2 specifies which provisions of the Revised Charter correspond to the provisions of the Charter. The term "correspond" is used here in the sense of to replace. Generally speaking, each Article of the Revised Charter corresponds to the Article with the same number in the Charter. However, there are some exceptions, which are listed in the appendix. The appendix specifies which undertakings in the new Charter must be accepted in order to respect the principle of correspondence laid down in paragraph 2.
Part IV
Article C - Supervision of compliance with the undertakings contained in this Charter
126. Given that the two Charters are to co-exist, at least during a transitional period, the drafters of the Revised Charter thought it essential that the two legal instruments be supervised in the same manner. Consequently, they did not wish to create separate supervision machinery for the Revised Charter and instead simply specified in Article C that undertakings entered into under the Revised Charter shall be subject to the same supervision procedure as that provided for in the Charter.
127. Furthermore, this provision is of an open-ended nature and the supervisory procedure will therefore be the same as that which applies to the Charter at any given time. In this way the drafters of the Revised Charter wished to adopt a neutral attitude with regard to the Turin Protocol amending the Charter's supervision machinery. In view of some states' reservations and difficulties in accepting the new supervision procedure set out in this Protocol, they decided that the Revised Charter should not interfere with this issue. Consequently, before the Turin Protocol comes into force, the Revised Charter will be subject to the supervision mechanism procedure applicable to the Charter, and after it comes into force, it will be subject to the new supervision procedure. [In addition, since states which ratify the Revised Charter are still Parties to the Charter, the Turin Protocol will only come into force when it has been ratified by all twenty states which are currently Parties to the Charter. The Revised Charter therefore has no influence on the number of ratifications necessary for the entry into force of the Turin Protocol].
Article D - Collective Complaints
[128. The Committee considered it necessary to include a provision in the Revised Charter providing that a state which had ratified the Additional Protocol providing for a system of collective complaints, before ratifying the Revised Charter, should be obliged to accept the supervision of its obligations under the Revised Charter in accordance with the procedure set out in the Protocol. It is important that ratification of the Revised Charter should not in practice result in denunciation of the Protocol on collective complaints. In addition, given that the Parties' undertakings in Parts I and II of the Charter are replaced by the undertakings in the Revised Charter, it would be logical for a state which has ratified the Protocol on collective complaints to accept that such complaints should cover the undertakings entered into under the Revised Charter.
129. Paragraph 2 is intended to allow states which ratify the Revised Charter before ratifying the Protocol on collective complaints to agree to be bound by the latter by declaration. The main purpose of this provision is to prevent states from having to submit too many legal instruments to their national parliaments for ratification. With a view to simplification, a state may therefore declare itself bound by the Protocol on collective complaints when it ratifies the Revised Charter.
130. It is obvious, however, that the provisions of paragraph 2 can only apply once the Protocol on collective complaints has come into force. ]
Part V
Article E - Non-discrimination
131. This new Article of the Revised Charter confirms the case law of the Committee of Independent Experts in respect of the Charter, ie. that the non-discrimination clause in the Preamble of the Charter applies to all the provisions of the Charter. Accordingly, the Revised Charter does not allow discrimination on any of the grounds listed in this Article in respect of any of the rights contained in the instrument.
132. The Article has been based on Article 14 of the European Convention on Human Rights which contains a more extensive enumeration of grounds than the Preamble of the Charter. The grounds enumerated in the Article, are the same as those contained in the Preamble of the Charter, with the addition of some grounds mentioned in the Convention. However, in respect of some of these latter grounds the Committee of Independent Experts has already indicated in its case law that they apply to the rights guaranteed under the Charter. The words "such as" contained in the provision indicate that the list of grounds on which discrimination is not permitted is not exhaustive. It is understood that this provision prohibits inter alia the refusal to employ a women on grounds of pregnancy. It also provides for non-discrimination in access to health care. These are merely two examples.
133. The appendix to the new Article provides that differential treatment based on an objective and reasonable justification shall not be deemed to be discriminatory. An objective and reasonable justification may be such as the requirement of a certain age or a certain capacity for access to some forms of education. Whereas national extraction is not an acceptable ground for discrimination, the requirement of a specific citizenship might be acceptable under certain circumstances, for example for the right to employment in the defence forces or in the civil service.
134. In addition, it is understood that this provision must not be interpreted so as to extend the scope ratione personae of the Revised Charter which is defined in the Appendix to the instrument and which includes foreigners [only in so far as they are nationals of other parties] lawfully resident or working regularly within the territory of the Party concerned.
Articles: F - Derogations in time of war or public emergency,
G - Restrictions,
H - Relations between the Charter and domestic law or international agreements
135. These three Articles correspond, mutatis mutandis, to the provisions of Articles 30, 31 and 32 of Part V of the Charter.
Article I - Implementation of the undertakings given
136. The model for this provision has been Article 7 of the Additional Protocol to the Charter of 1988. The first paragraph provides that without prejudice to the methods of implementation foreseen in Articles 1 to 31 of Part II of the Revised Charter, this provision may be implemented by any of the means enumerated in the paragraph. This composition has been chosen so as not to interfere with the case law of the Committee of Independent Experts according to which a certain form of implementation, such as legislation, is sometimes required. The word "shall" indicates that the method chosen must be efficient.
137. The second paragraph provides that in respect of the provisions enumerated therein, it is sufficient that the undertakings deriving from these provisions are applied to the great majority of the workers concerned. This paragraph contains all the provisions included in Article 33 of the Charter and Article 7, para. 2 of the Additional Protocol to the Charter, with the addition of Article 2, para. 7 of the Revised Charter.
Article J - Amendments
138. Having noted that Article 36 of the Charter had never been used, inter alia because it was very restrictive, the Committee wanted to introduce an amendment clause into the Revised Charter which would allow for the subsequent development of the treaty. This provision is based on texts already used by the Council of Europe for other European treaties.
139. According to paragraph 2, all amendments shall be examined by the Governmental Committee, before being submitted for approval to the Committee of Ministers after consultation with the Parliamentary Assembly. The Committee of Ministers shall take its decision by a two-thirds majority; after approval by the Committee of Ministers, the text shall be communicated to the Parties for acceptance.
140. If the amendment relates to Parts I and II of the Revised Charter, it shall enter into force when three states have informed the Secretary General that they accept it. In this connection, it should be noted that such amendments must be intended to extend the rights guaranteed by the Charter. In addition, the appendix to this provision stipulates that the term "amendment" also covers the addition of new Articles containing new rights; this issue had been raised at a Charte-Rel Committee meeting.
141. On the other hand, amendments to Parts III to VI shall not enter into force until they have been accepted by all the States Parties to the Revised Charter.
142. It was also agreed that member states of the Council of Europe which are Parties neither to the Charter nor to the Revised Charter should be able to participate in work on amending the Revised Charter, but that this would be for the Committee of Ministers to decide once an amendment procedure had commenced.
Part VI
143. Part VI contains the text of the final clauses of the Revised Charter. It is modelled on the final clauses adopted by the Committee of Ministers of the Council of Europe for treaties drawn up within the Organisation, though it does also reproduce some of the provisions appearing in Part VI of the Charter.
Article L - Accession by the European Community
144. [The comments below only concern the changes, namely the inclusion of a clause enabling the European Community to participate in the Revised Charter. It is the Council of Europe's practice regarding new treaties within the Organisation, to make provision for subsequent accession by the European Community, when the political conditions necessary for such accession exist.
145. However, it would be premature at this stage to attempt to deal with all the consequences of accession in the actual text of the Revised Charter, particularly where the functioning of the supervisory machinery is concerned. This being so, the second sentence of Article L paragraph 1 has been inserted in the text, which enables the Committee of Ministers to determine the actual form of Community participation in the Revised European Social Charter. Clearly, the Committee of Ministers would only take a decision on this after negotiations between the States Parties and the European Community.
146. The main purpose of this Article was to avoid having to draw up an Amending Protocol, which would have to be ratified by all the States Parties to the Revised Charter, if at any stage the European Community wished to become a party to this instrument.]
Appendix
Scope of the revised European Social Charter in terms of persons protected
147. The scope, ratione personae, of the Charter has been defined in the appendix according to which the Charter includes foreigners "only in so far as they are nationals of other Contracting Parties lawfully resident or working regularly within the territory of the Contracting Party concerned".
This is one of the main differences between the Charter and the European Convention on Human Rights which applies to all persons whatever their nationality and/or situation.
148. The Committee had expressed its agreement with the proposal, supported by the social partners, to extend the scope of the Revised Charter to all persons whatever their nationality, while keeping however the condition that they must be lawfully resident or working regularly within the territory of a Party.
This amendment is without prejudice to the scope of Article 12 para. 4 and 13 para. 4 which has been defined in these Articles. In addition if follows from the text of the appendix that Articles 1 to 17 and 20 to 31 shall be interpreted in the light of the provision of Article 18 and 19.
149. However, because of the importance of this proposal, the Committee left it to the Committee of Ministers to take a final decision.
150. The Committee of Ministers decided ... (to be completed).