12 January 1998
Future of the European Social Charter
Social, Health and Family Affairs Committee
Rapporteur: Mr Karl Hermann Haack, Germany, Socialist Group
Against the background of far-reaching economic and social transformations in Europe, the report asserts that the Social Charter, its protocols and the revised Charter form a package of fundamental social rights and a valuable instrument of social policy.
Unfortunately, nearly half of the member states have not yet ratified the basic document of 1961. Thus, the noble goal of giving equal treatment to social rights and to the traditional Human Rights has not been fully achieved despite persistent efforts during the last decades with the view to reform the Charter and its supervision machinery.
On the eve of the 50th Anniversary of the Council of Europe it is time to intensify efforts towards common European social standards by launching a campaign for ratifications. In the medium term, the reflection should aim at transforming the Committee of independent experts into a European Court of Social Rights, by modifying its composition and statute. The recently introduced practice of monitoring the commitments undertaken by member States, should also comprise social rights. Finally, the Council of Europe's intergovernmental Work Programme would have an increased impact if there was an interface with the findings of the supervisory bodies of the Social Charter.
I. Draft recommendation
1. The Parliamentary Assembly of the Council of Europe has carefully examined the current situation and prospects regarding the European Social Charter, the protocols thereto and the Revised Social Charter.
2. The Assembly welcomes the decision of the Heads of State and Government, reflected in the Final Declaration of the Council of Europe's Second Summit (Strasbourg, 10-11 October 1997) "to promote and make full use of the instruments which are a reference and a means of action for States and for the social partners, in particular the European Social Charter (...)".
Like the European Convention on Human Rights, the European Social Charter should be the social benchmark for all of the Council of Europe's activities. With reference to the ministerial Conference on Human Rights which met in Rome in 1990 and to the declaration by the Committee of Ministers on the 30th anniversary of the Charter, in 1991 in Turin, it is important to stress the inseparable nature of human, civil, political, social, economic and cultural rights.
3. In this light, the Assembly fully supports Chapter II ("Social Cohesion") in the Action Plan, which has been drawn up at this Second Summit, and in particular paragraph 1 on the promotion of social rights and paragraph 2 on a new strategy for social cohesion.
4. The Assembly is convinced that, given the new economic and social challenges, the European Social Charter, as a fundamental document enshrining social and civic rights, has an important role to play:
i. the globalisation of commercial and financial markets and the increasing importance of world trade as a determining factor are also having an impact on the internal economic development of individual countries. Social developments are not all taking place at the same time, and in many cases rapid, globally-oriented economic modernisation contrasts with slower changes in social structures as a result of national customs and traditions;
ii. the change in the significance of work is altering the outlook for social and individual development: unemployment is growing in many European countries and, with periods of employment now alternating with periods of unemployment, the prospects for obtaining a stable, lifetime job no longer exist; instead, the principle of lifelong learning is gaining in importance;
iii. it is possible to observe radical shifts in social relationships, such as a change in the importance of the family and an increase in the number of single-parent families. The problem of social cohesion, characterised by growing poverty and unemployment and a rise in the number of old people in need of care, is looming even larger.
The European Social Charter and its Protocols must become a reference for the whole of Europe in order to serve as a basis for drafting new legislative and contractual instruments, both national and European, to facilitate the political and social management of the changes under way.
5. The European Social Charter pursues the political aim of guaranteeing collective and individual working conditions and meeting the basic social needs of a human being — such as work, a home, health, and freedom from economic need and social marginalisation — by means of legal framework. The Parliamentary Assembly supports this aim as an indispensable basis for a humane society. However, if this objective is to be achieved, further efforts are necessary at three levels:
i. intensified promotion of the ratification of the Social Charter;
ii. creation of greater transparency and accessibility in respect of procedures;
iii. improvements in enforceability and supervisability.
6. The Council of Europe has, after the radical political changes of the last few years, grown to forty members. Its member states agree on and are jointly pursuing the aims of establishing and consolidating democracy, human rights, economic stability, internal and external security and social welfare. The European Social Charter is very important for the success of these efforts.
7. In the last few years, the European Social Charter has been amended several times by the addition of protocols, and in May 1996 a new version, the Revised Social Charter, was adopted. With regard to the 1961 Charter, but especially the protocols and the revised version, the Parliamentary Assembly notes a regrettably low number of signatures and ratifications. This concerns not only the new member states but also many signatories of the 1961 Charter.
8. In response to this unsatisfactory state of affairs, the Parliamentary Assembly has begun to conduct seminars in the new member states with the participation of parliamentarians, government representatives, non-governmental organisations and the public at large. This campaign must be continued in the next few years if we are to be able to point to a large number of ratifications of the Social Charter by the time of the Council of Europe's fiftieth anniversary. The Parliamentary Assembly in particular welcomes the important initiatives by non-governmental organisations supporting the ratification campaign.
9. The Assembly is convinced that the effect and coverage of the Social Charter can be increased by encouraging contracting states to sign and ratify all its core articles. Up to now, only five out of seven articles or six out of nine had to be ratified (Revised Charter).
10. The Parliamentary Assembly considers the European Social Charter to be a document of a universal nature. It therefore demands that the Charter be applied as a long-term goal to all persons resident in the signatory states, irrespective of whether they originate from another signatory state or from a state that is not a member of the Council of Europe.
11. The procedure established by the 1961 Social Charter for supervisory machinery has proved cumbersome, in spite of the great efforts made by the Secretariat and the relevant committees. In consequence, a more efficient procedure was introduced by the Turin Protocol of 21 October 1991. Although not all the contracting parties to the Charter have yet ratified this protocol, a fact that the Parliamentary Assembly regrets, some important elements of the new procedure have already been put into effect. In view of the complexity of the procedure, the Assembly nevertheless considers additional steps necessary in order:
i. to speed up the procedure,
ii. to strengthen the democratic supervision of the procedure,
iii. to improve scope for public discussion and for the implementation of the resulting conclusions.
12. The Parliamentary Assembly supports the idea of carrying out at shorter intervals the regular checks that are required on the application of the European Social Charter. In this connection, it proposes the introduction of a basic timetable for the presentation of regular reports, with fixed dates for the drafting of correspondents' reports, for the discussion of these reports by the committee of experts and for the holding of deliberations in the Parliamentary Assembly and the Committee of Ministers. The period to which a report relates should not exceed one year, so that relevant observations may be made and rapid conclusions drawn.
13. It is essential to give national and European impetus (content, procedures, application) to the Charter, together with the appropriate resources.
i. Suitable structures should be set up in each member state of the Charter where governments, representatives of economic and trade union organisations and the competent non-governmental organisations could participate on a regular basis in the activities of the Charter (drafting of reports, follow-up to conclusions, etc.) and in the application of the rights enshrined in the Charter in national social policies.
ii. Regular reviews should be carried out by national parliaments of their country's undertakings in relation to the Charter. Countries' undertakings should be well-documented and utilised in judicial and educational institutions.
iii. The Secretariat of the Charter should be given greater financial and human resources. National correspondents could usefully assist in performing increasingly complex tasks.
iv. Similarly, there is an urgent need to increase the membership of the Committee of Independent Experts. An effort should also be made to set up two or more chambers to share the workload.
14. The Assembly is in favour of a close link being established between the conclusions of the Committee of Independent Experts and the Council of Europe's Intergovernmental Activity Programme, so that, by means of direct discussions and co-operation, the coverage and effectiveness of the Social Charter's requirements may be increased.
15. In order to strengthen the effect of the supervision machinery, it is also necessary to examine what consequences may arise from breaches of the Social Charter's requirements. The question of what measures should be taken if governments do not properly implement their commitments under the Social Charter should be examined.
16. The Additional Protocol of 9 November 1995 incorporated the right of collective complaint into the Social Charter procedure. The Parliamentary Assembly warmly welcomes this and urges all member states to sign and ratify the protocol. Furthermore, the Assembly is of the opinion that the introduction of further complaint mechanisms should be investigated. The Assembly supports the requests of non-governmental organisations that contracting states declare that they recognise the right of representative national non-governmental organisations within their jurisdiction to lodge complaints according to Article 2 of the Additional Protocol (1995).
17. Moreover, consideration should be given to whether the right of governments to lodge a complaint under the European Convention on Human Rights may be transposed to the area of social rights. It should at least be possible to make the core articles of the Charter the subject of such a complaint.
18. The European Court of Human Rights is a central authority for the protection of human and civil rights and human dignity. The Parliamentary Assembly considers the establishment of a parallel European Court of Social Rights to be an effective way of guaranteeing the observance of obligations under the Social Charter. It is also worth examining the possibility of transferring individual rights from the Social Charter to the Convention on Human Rights, in order to create the basis for stricter legal observance. This question is however very wide and complex and the Assembly therefore has the intention to treat it in a separate report.
19. The Assembly considers it urgently necessary to appoint the members of the Committee of Independent Experts through a vote in the Assembly, in accordance with the provisions of the Turin Protocol. Moreover, the Parliamentary Assembly should also be given the right to propose candidates.
20. The European Social Charter is an important component of the European system of values, which — in spite of the various differences between national traditions and attitudes — has contributed to the strengthening and spread of the European social model. Given the basic economic and social standards set in both European and global terms, the Parliamentary Assembly is convinced that debates on social policy should also be conducted on a multilateral basis, that is, in close co-operation with other European and international organisations. Representatives of non-governmental organisations, including trade unions and employers' organisations, should be included in this discussion on a permanent basis.
21. Consequently, and in accordance with the Action Plan drawn up at the Second Summit, the Parliamentary Assembly calls upon the Committee of Ministers to come out more strongly than hitherto in favour of the early signing and ratification of the European Social Charter, its protocols and the Revised Social Charter and to ensure that:
i. concrete aims and arrangements for a ratification campaign are drawn up and put forward;
ii. the provisions of the Turin Protocol and the Protocol providing for a System of Collective Complaints can already be fully implemented.
22. The Parliamentary Assembly also recommends that the Committee of Ministers create, as urgent measures, the preconditions for streamlining the supervision and control machinery relating to the Social Charter's requirements by:
i. increasing the provision for material and human resources in the Council of Europe's budget with respect to the Secretariat and the Committee of Independent Experts in connection with their task of supervising the application of the Social Charter;
ii. developing a network of independent correspondents in member states;
iii. increasing the membership of the Committee of Independent Experts to at least 15 members, which can be divided in three chambers;
iv. ensuring a linkage between the Intergovernmental Activity Programmes and the conclusions drawn with respect to the Social Charter ;
v. implementing the Turin Protocol which stipulates that members of the Committee of independent experts should be elected by the Parliamentary Assembly and also recognising a right to this latter to propose candidates.
23. The Parliamentary Assembly also requests the Committee of Ministers to pronounce as a medium-term programme on the proposals in this recommendation for a transparent and more effective procedure, namely:
i. the necessary setting up of a European Court of Social Rights;
ii. the possible introduction of a procedure for the lodging of a complaint by either an individual and/or a government by further studying whether this could be best achieved in this new framework or by integrating some fundamental social rights into the system of the European Convention on Human Rights;
iii. the inclusion of the observance of the Social Charter and of social rights in general, in the monitoring procedure of the Council of Europe, in consultation with the Parliamentary Assembly.
iv. the amendment of the final clauses of the Social Charter to make all the core articles obligatory for signatory states.
24. The Committee of Ministers is invited to create the organisational framework for an ongoing debate on the European Social Charter and the aims of European social policy with the International Labour Organisation, OECD and the European Union, whilst leaving the door open for the participation of other organisations.
II. Draft order on the monitoring of commitments as regards social rights
1. Recalling that, in accordance with Article 1 of the Statute of the Council of Europe, the aim of this latter is to achieve a greater unity between its members for the purpose (...) of facilitating their economic and social progress,
2. Recalling its Recommendation .. (1998) on the future of the European Social Charter, and considering that member states ought to maintain a high level of protection of human rights, concerning both civil and political rights as well as social rights,
3. Taking note of the Final Declaration of the Second Summit in which Heads of State and Government decided to "promote and make full use of the instruments which are a reference and a means of action (...) in particular the European Social Charter",
4. Convinced that the respect of social rights should form part of the monitoring procedure which was set up to examine the commitments undertaken by member states,
5. Charges its Social, Health and Family Affairs Committee to control whether member states respect the provisions of existing legal instruments in the social field to which they are party, and in particular the European Social Charter, its Protocols and the revised Social Charter, and present a report to the Assembly at regular intervals.
III. Explanatory memorandum by Mr Karl Hermann Haack
A. New impetus for the European Social Charter
B. The European Social Charter as the basis for the European social model
C. New challenges lie ahead of the European Social Charter
D. The reality and the future of the European Social Charter: elimination of the deficits relating to ratification, procedures and monitoring system
Appendix I: Signatures and ratifications of the European Social Charter and the protocols thereto
Appendix II: Comparison of the procedure used for monitoring compliance with the European Social Charter under the Turin Protocol and the scheme proposed by the rapporteur
A. New impetus for the European Social Charter
1. The Council of Europe will be able to celebrate its 50th anniversary in 1999. Since the democratic revolution in central and eastern Europe in 1989, its membership has expanded to forty, now encompassing almost every European state. These facts and figures mean that the Council of Europe and its Parliamentary Assembly face the task and the obligation of putting more widely into effect the political, legal, humanitarian and social principles and goals pursued since 1949.
2. Since 1961 the European Social Charter has, together with the European Convention on Human Rights, been Europe's fundamental statement of basic social rights and of the goals of social policy. The definition and putting into practice of fundamental social rights through the European Social Charter are subjected to a constant process of political examination and adaptation to new social and economic challenges. It is in this spirit that, since 1988, decisive moves have been made, step by step, with a view to breathing new life into the European Social Charter:
- the text of the 1961 Charter has had important new principles and individual provisions added to it through the Additional Protocol (1988) and the Revised Social Charter (1996);
- amendments have been made to the complex procedure for checking and monitoring compliance with the obligations entered into under the Charter, through the Protocol amending the Charter (Turin Protocol of 1991) and through the Protocol on collective complaints (1995), through new regulations for a tighter monitoring procedure and through the introduction of a collective complaints procedure;
- the Secretariat and Parliamentary Assembly have begun a new effort to obtain ratifications.
3. Thus three spheres of action are specified for a policy on the European Social Charter. There is a need to step up efforts in these areas, for the following are preconditions if the goals of the European Social Charter are to be achieved:
- broader knowledge of the content and aims of the Charter;
- more transparent procedures;
- more extensive ratification by European states.
4. In this context, the Parliamentary Assembly has a central role to play. This was also made clear in Strasbourg in May 1997, at the colloquy on "The Social Charter of the 21st Century", by Alfred Gusenbauer, who chairs the Social, Health and Family Affairs Committee of the Parliamentary Assembly. The colloquy, organised by the Secretariat of the Council of Europe, itself made an excellent contribution to detailed debate of experience of the European Social Charter, and to the discussion about its future prospects, as well as providing a significant basis for this report.
5. In Order No. 518 (1996) of 20 March 1996, the Parliamentary Assembly instructed its Social, Health and Family Affairs Committee to organise a social policy debate relating to the European Social Charter. On 24 September 1996, the Parliamentary Assembly adopted Recommendation 1304 on the future of social policy, setting down basic principles for a new social policy and for active employment policies. In Recommendation 1290 (1996), of 20 March 1996, on the follow-up to the Copenhagen Summit on social development, the Parliamentary Assembly confirmed the significance of the legal instrument known as the European Social Charter.
6. On 10 and 11 October 1997 the 2nd Summit of Heads of State and Government of Council of Europe Member States was held in Strasbourg. In this context, the Parliamentary Assembly had, in Recommendation 1303 (1996), of 7 November 1996, demanded that encouragement be given to ratification of the European Social Charter, the protocols thereto and the Revised European Social Charter, and that action be taken to ensure that the social rights enshrined therein were implemented. In Recommendation 1324 (1997), of 22 April 1997, the Parliamentary Assembly reiterated and confirmed its call for ratification.
7. Where the Final Declaration refers to the European Social Charter, participants in the Summit reaffirmed the principle of the promotion of social rights and of social cohesion, which they included in their action plan. This has to be welcomed. The proposals in the action plan are intended, inter alia, to encourage member states to sign the European Social Charter. However, the Heads of State and Government decided not to give any indication as to how the transparency of the procedures and the validity of the European Social Charter could be improved through targeted action. It is precisely this that I believe to be particularly important to the future of the Charter.
8. The task of promoting practical exchanges of experience and information among member states, set for the Council of Europe by the Summit, is to be welcomed. Further encouragement to a greater role for social policy and the Social Charter may come from the planned specialised unit, which will be tasked with observing and comparing social issues in the member states, thereby contributing to greater solidarity among those states. Care should be taken, when these proposals are put into practice, to take appropriate account of the suggestions and views of the Parliamentary Assembly.
9. Building on these political initiatives and preparatory work, and against the background of far-reaching economic and social transformations, I feel that the time has come to take a critical look at the political and legal situation of the European Social Charter, to take the initiative for strengthening the role of the Social Charter and to give expression to the attitude of the Parliamentary Assembly through a recommendation.
B. The European Social Charter as the basis for the European social model
10. The far from simple circumstances in which the European Social Charter was drawn up forty years ago - intensive discussions went on for over ten years after the European Convention on Human Rights was adopted - made two things clear: firstly, as had always been obvious, human rights and social rights are inseparable, and the rule of law, human rights and social rights have to be understood as tasks and goals which go together. Secondly, however, it emerged that the definition and implementation of social rights are difficult matters for social and legal policy and constantly have to be tackled afresh.
11. While the European Social Charter does not stand alone, it is unique. Its significance has to be measured in relation to that of other international social law codes. From the very start of work on the European Social Charter, a close link existed with the work done, and the resolutions and recommendations adopted, by the International Labour Organisation. In terms of institutional practice, too, there is a close link between the ILO and the Charter. Under Article 26 of the Charter, for example, a representative of the ILO participates in the deliberations of the Committee of Independent Experts, and the ILO also offered advice to the Committee on the European Social Charter, known as Charte/Rel, which was set up in 1990. This affords a good example of inter-institutional co-operation, one worthy of development and promotion.
12. This is, however, also the place to point out that the European Social Charter, in its extended form as the Revised European Social Charter, of 1996, encompassing thirty-one principles, now goes beyond the regulations drawn up by the ILO, if we look at the individual provisions separately. On the one hand, this reflects specific European conditions of high social standards in developed industrialised societies, but, on the other, it may have contributed not only to the complexity and long-drawn-out nature of the monitoring procedure, but also to the unsatisfactory level of ratification.
13. The European Social Charter also goes much further than the Community Charter of the fundamental social rights of workers, adopted by the European Council in 1989 and now accepted by all fifteen member states of the European Union. The EC document, unlike the ESC, restricts itself to workers' rights connected with their work, and, again unlike the ESC, it amounts to a declaration of targets which is not legally binding. Its legally binding nature therefore distinguishes the European Social Charter, so the aim is to reinforce and improve this advantage in terms of effectiveness.
14. The Charter has passed its test as a fundamental point of reference for those who set and safeguard social policy standards. The EC Community Charter, like the new European Union Treaty of Amsterdam, refers to the European Social Charter. The Parliamentary Assembly took the opportunity in aforementioned Recommendation No. 1290 (1996) to recommend that the Committee of Ministers invite the European Union to become a Contracting Party to the revised Social Charter. However, the Committee of Ministers did not accept this request (Doc. 7687).
15. The Revised European Social Charter, with its thirty-one principles, is the most comprehensive expression of a social model which has had a decisive impact on Europe's social and political development since the start of the industrial age, and which has regarded, and still regards, as tasks for society as a whole the political and legal guaranteeing of human beings' basic needs - work, housing, education and health - and protection against risks which jeopardise the meeting of these needs - poverty, unemployment, illness, disability, old age and dependence on care - risks which, however, can no longer be dealt with at individual level in modern societies.
16. Since industrialisation began, the countries of Europe have attempted in various ways to find a solution to these problems and worked out various models for developing the welfare state. There is a need not just to add to the concepts and model theories discussed in scientific circles (such as the distinction drawn by Gösta Esping-Andersen between a social democratic, a conservative and a liberal welfare state) a south European type (suggested by Ferrera and Lessenich), but also to conduct an investigation into their accuracy, particularly in respect of the countries of central and eastern Europe.(1)
17. The economic and social systems which exist in the new Council of Europe member states have been subjected to a process of radical transformation, and it is very difficult to categorise them, the stages of development they have reached being so open and so different. What is more, central and eastern Europe, like western and northern Europe, have differing political and legal traditions. In this situation, much is demanded of an instrument like the European Social Charter: standards long achieved in similar ways in the industrialised countries of northern and western Europe now have to be put to the test in completely different circumstances. In this context, not only is fundamental consideration of the premises and objectives of welfare state development necessary, but there is also a need for practical work on problems relating to the labour market and social policy and social legislation: differences in standard of living, in health care opportunities, in the financial and structural preconditions for welfare systems and in the level of employment protection have to be bridged. This is a problem to which the EU Commission also refers in its report entitled "Agenda 2000". (2)
18. Ratification and implementation of the European Social Charter therefore have to be regarded as a process in which the governments of the new central and east European member states, together with the societies of these countries, represented by their parliaments and their non-governmental organisations (NGOs), must be equally involved. Neither too little nor too much must be demanded of the societies which are in transition, where the meeting of standards in the field of social law is concerned. This is a political challenge which has been taken up, and rightly so, by the Parliamentary Assembly of the Council of Europe, in its capacity as a democratic political forum for the whole of Europe. Great value has to be attached to the consequent effort, through a thematically linked series of colloquies in central and eastern Europe, to set out the content and goals of the European Social Charter and to conduct a discussion with a view to ratification. In this respect the colloquy held in Bratislava in September 1997 was, as the participation showed, a great success.
19. As already mentioned, NGOs' role in this process will also be particularly significant. The democratically organised communication of the interests of society has been, and remains, a vital precondition in the European social model for the stability of the political and economic development of the past 50 years. This means freedom to form trade unions, the protection of economic and social interests in the context of discussions between workers' and employers' representatives, the creation of labour and social law as basic conditions, guaranteed by the state, of economic activity, the representation of the social interests of the weaker members of societies and, finally, an ongoing dialogue between the state and social groups at national level. The European Social Charter backs up this model of representation of social interests, not only through the right to organise (Article 5) and through related representational rights of workers (Articles 6, 21, 22, 28 and 29), but also through the inclusion of representatives of workers and employers in the procedures under the Charter.
20. Over and above this, another two trends can be detected. One manifests itself in the Additional Protocol of 1995 to the European Social Charter, through which a collective complaints procedure was added to the Charter: this makes it possible for international and national organisations of workers and employers, together with other international NGOs, to make direct complaints. Unfortunately, the protocol has so far been ratified by three member states only; it cannot come into force until five states have ratified it.
21. Yet the provisions in the complaints protocol covering NGOs other than associations of workers and employers nevertheless make it difficult for them to complain. On the other hand, at European level there is a clear tendency for other NGOs, too, to play their part in implementation of the Charter. It should not be forgotten in this context that NGO representatives took part and co-operated in the Colloquy on the Social Charter, held in Strasbourg (May 1997), and in the Colloquy on social cohesion, held in Bratislava (September 1997). In order not to jeopardise this developing close co-operation, it is not enough just closely to monitor the collective complaints procedure to find out the extent to which all social interests are able to find expression through it. There must also be improved overall transparency of the procedure, so that the social NGOs are able to make use of their significant potential in the campaigns to strengthen and to publicise the European Social Charter.
C. New challenges lie ahead of the European Social Charter
22. The European Social Charter does more than merely constitute a fundamental political declaration on the European social model, as it also creates a binding legal framework governing communal life in society, labour relations, individual entitlements to protection and the meeting of people's basic needs. In recent years discussions of the role and potential effectiveness of social standards as an instrument of international social policy have taken place at meetings at various international organisations, including the WTO, OECD and, first and foremost, the ILO, with a consensus emerging among all such organisations that fundamental human rights for workers have to be protected universally. The Copenhagen Summit on social development held in March 1995 confirmed this agreement. In Recommendation No. 1308 (1996) (WTO and social rights), the Parliamentary Assembly confirmed that social rights should be an integral part of international economic regulations.
23. In this context, I should particularly like to draw attention to the report of the Director-General of the ILO to the 1997 International Labour Conference on "The ILO, standard setting and globalization", which singled out in exemplary fashion where the strengths and weaknesses of international agreements on social standards lie: it has to be pointed out that the ILO regards as core social rights those covered by ILO Conventions Nos. 87 and 98, on freedom of association and collective bargaining, No. 29 on the prohibition of forced labour, including child labour, Nos. 100 and 111 on equal treatment and non-discrimination and No. 138 on the minimum age for admission to employment. At the same time, the Director-General sketches out a strategy of strengthening the relevance and effectiveness of the conventions through a carefully targeted choice of subject and through better use of its means of action.
24. This is an approach which would also be beneficial for the European Social Charter, so I suggest that the core rights enshrined in the ESC as well as in the Revised Charter, without any exceptions, be made compulsory for ratifying states, thereby emphasising the importance of the core content of the Charter. In the Revised European Social Charter of 1996, these are: [in brackets: core articles of the 1961 Charter]
[- Article 1 - The right to work;]
[- Article 5 - The right to organise;]
[- Article 6 - The right to bargain collectively;]
- Article 7 - The right of children and young persons to protection;
[- Article 12 - The right to social security;]
[- Article 13 - The right to social and medical assistance;]
[- Article 16 - The right of the family to social, legal and economic protection;]
[- Article 19 - The right of migrant workers and their families to protection and assistance;
- Article 20 - The right to equal opportunities and equal treatment in matters
of employment and occupation without discrimination on the grounds of sex.
25. Another factor is a close scrutiny of the effectiveness of existing monitoring methods and procedures. Ultimately, a strategy of carefully targeting subject matter means that the Parliamentary Assembly must be called on to play a more intensive political role in the European Social Charter.
26. Thus an ongoing examination of both the content and the effectiveness of the Social Charter is necessary. I believe that the Charter can prove that it has a future in the face of the new economic and social challenges.
27. The Parliamentary Assembly has on many occasions in recent years taken a detailed look at both individual problems and general trends in European social and economic development (Dundee/Hegyi report on the future of social policy, Doc. 7634; Gusenbauer report on OECD and the world economy Doc. 7877). I shall therefore only touch upon some aspects briefly in this memorandum.
28. It should not be overlooked during our discussions that the consensus-based social model sketched out above, and subjected to European legal codification in the Social Charter, is by no means undisputed. Criticism, and even rejection, of social policy is less a reflection of a new social model in the real sense than of an economic outlook, dismissing social considerations on two grounds: it is claimed that socially oriented policies are an obstacle to successful economic development and that social processes have to be given less priority than market forces. Arguments based on siting policy and on the competitiveness of national economies in the context of the globalised economy are said to back up this viewpoint.
29. There is no doubt that, in the face of globalisation, the debate about the importance of social policy and the need for social standards, as against economic factors, is intensifying. In this context globalisation seems to be a comprehensive definition, the real background to which is not unchallenged in the worlds of science and politics, and often interacting with various national or regional concerns. The globalisation concept encompasses a large number of worldwide changes which have drastically altered our lifestyle and economic practice: international economic relations are becoming more important and are also increasingly having an impact on conditions in internal markets; economic competitiveness on world markets is cited as evidence of a society's success; capital and labour as factors of production stand out for their varying degrees of mobility and dynamism; new technologies lead to changes in working methods and employer-employee relationships; economic, social and cultural spheres of national societies which are affected by globalisation develop differently from the traditional kind of social structures and groups.
30. The persistence of mass unemployment in many states of Europe is the expression of a structural crisis stemming from changed conditions in the world economy, but it is also an indication that economic growth and employment growth have become decoupled, that the relationship between factors of production has changed (human work is becoming less important) and that there have been changes in economic methods and in consumer demand (growth in the services sectors).
31. Both the concept and reality of work are beginning to alter: the stop-start curriculum vitae is taking over from the lifelong permanent post; different working environments are arising out of what is still - for the moment - called atypical employment or telework. The training of young people as they start their working lives is becoming ever more important, but is still often insufficient to enable them to keep their posts: workers are required continually to try to acquire new skills, in a process of lifelong learning. It has consequently been suggested that, to take the place of a strict division between employment and non-employment, the concept of activity should be applied as a fundamental category, a concept which can encompass the carrying out of both professional and family and social tasks, without a different value being attached to the different spheres . (3)
32. Throughout Europe, demographic trends mean that there is a growing proportion of older people. Thus a greater burden is being placed both on pension systems - irrespective of how they are organised - and on health systems and the provision of care and assistance. European societies have to find an innovative and efficient way of dealing with these tasks, building on their social traditions and taking account of the obligations entered into under the Charter.
33. This is all the more so for the fact that changes in family structures are, inter alia, reducing families' internal capacity and opportunity to help themselves. It also has to be noted that there is a growing number of one-child families, for one thing, and that, for another, the number of parents bringing children up on their own is also rising, most of these being mothers. In our mobile society in general, generations are living together less. Not only is this a change in social structure, a growing apart and fragmenting of lifestyles, but it also brings new and additional challenges for social systems.
34. If the conditions resulting from globalisation also increase the need for social policies in democracies with market-based economies to achieve economic legitimacy nowadays, and have raised awareness that even expenditure on social policy is linked to what the respective societies have achieved economically and to their productivity, this does not necessarily lead to a defence of social policy.
35. I should like to emphasise first that, in the face of present economic changes and those which still have to be expected, I feel all the more strongly that only if people have social rights can they have full individual civil rights and hence participate in society (as demonstrated by the English sociologist, T H Marshall), and that social policy is virtually, in a dialectic push-and-pull movement, the twin sister of capitalism (according to the German social scientist, Eduard Heimann, writing in 1929). Hence the correctness of the both legal and political approach of the European Social Charter. (4)
36. Secondly, the conclusion to be drawn from this for social practice is that, within the rapidly developing globalised economic system, attempts must be made at national and international level to target social policy more carefully and to orient it more towards efficiency. If social standards are regarded as a kind of substitute for pay, then the goal is to achieve the most efficient organisation of the distribution of the results of production in terms of pay, social standards and profits. The Social Charter, as social legislation valid throughout Europe, is a reference point here, together with the social, political and economic circumstances, facts, and it is on this basis that the sovereign European societies and states decide on their rules for distribution.
37. Overall, we find that previously essential links, chains of cause and effect and ties are breaking down in every sphere. Individualisation offers each and every person both an opportunity and uncertainty. In the context of society as a whole, too, the situation is one where social cohesion is in jeopardy, at the same time as the chance exists for a new kind of welfare state based on social justice. In this uncertain phase, legal structures can offer a clear-cut approach which simultaneously accepts various conditions and requirements in flexible fashion and safeguards the certainty of the rule of law. The European Social Charter is the appropriate instrument, so that we can move forward along these lines in co-operation, on the basis of principles and legal means. The Charter lays down binding legal principles, target and limits, the framework within which - each state according to its national capacity and organisational structure - countries can arrange their own sovereign social policies.
38. The new economic and social challenges are both national and international in their causes and effects. This makes more important the general setting of social principles and provisions which are both valid and effective across national borders. The complexity of economic developments, involving individual states' efforts and international interaction, means that the answers which must be found and the strategies which must be adopted must go beyond the national level.
39. It is therefore both necessary and proper to rely increasingly on the European Social Charter as the basis on which the certainty of social law rests for individuals and for society in changing environments. The question which remains open, the central question, however, is that of how, in face of the described preconditions and the background conditions, the European Social Charter can be established as an instrument for the active implementation of social policy.
D. The reality and the future of the European Social Charter: Eliminating the deficits relating to ratification, procedures and monitoring system
40. Despite the achievements and potential of the European Social Charter, it does not always seem to have the prominence in public discussions which it deserves. Knowledge of the Charter as a political and legal instrument seems to be unsatisfactory beyond the circles of the Council of Europe bodies which deal with it and those of political and legal experts. It often has a very marginal place in public debate. We must exercise self-criticism and ask ourselves what we can do to alter this situation, which is unsatisfactory in respect of a document which has potential to be highly significant for societies and human beings. It is my view that greater publicity must actively be sought, and that the Parliamentary Assembly, too, could do more to place its role as the public forum of the Council of Europe at the service of the Charter.
41. One reason for this belief is the fact that debates on European and international social policy are often disjointed and the analytical and advisory resources of the major international organisations are not always used to achieve greater efficiency. There seems to be a need constantly to strive to "network" discussions with one another, in order to optimise co-ordination between institutions and to make targeting and policies as effective as possible. I am convinced that continuity in co-operation must be sought in order to strengthen the European Social Charter and the European social model.
42. The process of ratification of the Charter, the protocols thereto and the Revised European Social Charter is inadequate. This is deeply regrettable, but it also provides an incentive for even greater efforts by the bodies of the Council of Europe. The table which appears at Appendix I to this report shows the exact ratification situation. To sum up, the numbers of signatures and ratifications are as shown below:
Signatures only1 Ratifications
European Social Charter of
1961 (ETS No. 35) 9 21
Additional Protocol of 1988
(ETS No. 128) 14 6
Amending Protocol of 1991
(ETS No. 142) 8 14
Additional Protocol providing
for a system of collective
complaints, 1995 (ETS No. 158) 7 3
Revised European Social Charter
of 1996 (ETS No. 163) 13 -
43. This overview shows that even the states which signed the 1961 European Social Charter early on have much catching up to do in respect of ratification of the subsequent documents. An even more confused picture emerges if we look at the ratifications of individual provisions. In order to make the import of the ratification situation quite clear and to refocus discussion of the Charter on different issues, thereby also giving new impetus to the ratification campaign as a whole, I feel that it would be constructive to declare all the core rights enshrined in the Charter of 1961 and the Revised Social Charter - depending on status of ratification - compulsory, and to endeavour to concentrate on these rights in the campaign.
44. All members of the Parliamentary Assembly are called upon to bring pressure to bear on their governments to make progress where ratification is concerned and to comply with the plea for ratification which appears in the Final Declaration of the October 1997 Summit. The Parliamentary Assembly itself has shown, through its support for the events and colloquies arranged by the Secretariat in the countries of central and eastern Europe, that it both wishes to make, and is capable of making, an important contribution.
45. It is necessary not only to introduce the European Social Charter to the new member states of the Council of Europe, but also, through ratification by them, to make it one of the cornerstones of the newly developed democratic societies and states. The Charter must be one part of the overall policy of the Council of Europe vis-à-vis the new member states. In the face of the problems associated with the transition, there will continue to be a need for special efforts to bring closer to each other, to examine and to promote legal and administrative structures. The new member states may feel overburdened, but close co-operation can eliminate such concern. It must become clear during the discussion and ratification process that European co-operation and integration mean more than just the regulation of economic relations.
46. The Final Declaration of the Summit describes opportunities for intensive exchanges on social problems and their solutions. It is in this context that the linkage that I suggest of the Intergovernmental Programme of Activities of the Council of Europe and the political conclusions on the level of implementation of the European Social Charter has to be made.
47. The procedure for monitoring the European Social Charter was rightly altered in 1991 on the basis of the work of the committee known as Charte/Rel.2 But I feel that even the new monitoring procedure could be improved. The Charter is a legal instrument intended to improve the lives of individuals and human life in society. A prerequisite for this, however, is for individuals and their social representatives to be able to grasp and understand how the Charter operates. The legal substance of basic social rights must not become opaque as a result of procedural rules. The aims must therefore be the creation of greater political openness, for one thing, and a speeding up of the procedure, for another.
48. Insofar as the new monitoring procedure is already being put into use in accordance with the Turin Protocol - while ratification of the protocol by the majority of Council of Europe member states is still awaited - shortcomings remain, and these need rectifying. For instance, the procedure places the onus on the governments, which draw up national reports; governments are in fact represented twice in the procedure, both through the Intergovernmental Committee and through the Committee of Ministers, as well as having the power to nominate candidates for the Committee of Independent Experts and deciding on the political assessment. The Parliamentary Assembly should, partly in order to create greater transparency, strive to remedy this imbalance.
49. Several changes have been made in recent years to the procedure in respect of reporting and the periodicity of the reports, leading to confusion. Even the latest decision of the Committee of Ministers, taken in September 1996, was unable to eliminate this drawback. Under that decision, all signatory states are obliged to draw up reports for similar periods, ie at least every two years in respect of the core provisions and every four years for the others. States are also free to report annually. A possible extension of the report period to two or four years, together with the length of the subsequent examination process, creates a procedure, the substance of which can only be grasped and understood by experts.
50. Politics and the rule of law in democratic societies must necessarily safeguard the publicity and transparency of their decision-taking processes and their procedures. This requirement also has repercussions for the Social Charter. I would suggest that a cyclical procedure be laid down, with fixed phases of work during the year enabling both the reports to be drawn up by member states and the core legal arguments to be conducted by the Committee of Independent Experts, as well as, finally, the political assessment to be made by the Committee of Ministers and the Parliamentary Assembly. A procedure of this kind, with timetable, is outlined in Appendix II.
51. A network of correspondents existing at institutional level - in the form, so to speak, of regional/national committees of independent experts - may, already at an early stage, be an alternative to the drawing up of reports by governments and NGOs, thereby stimulating public debate. Governmental and independent reports should then be published together.
52. The next level of deliberations should, as previously, be that of the Committee of Independent Experts. However, in view of the number of principles and individual provisions requiring monitoring under the Revised European Social Charter, and of the - I hope - growing number of ratifying and reporting states, as well as the speedier decision-taking required under the proposed scheme, there is a pressing need for an increase in the number of members of the Committee of Independent Experts. Consideration should be given in that context to the formation of two or more chambers, which can function on an equal footing - each responsible for specific subjects and/or regions.
53. Taking this requirement inherent in the system further, the next consideration entails another step forward: it is by no means inconceivable for a European court to be set up to deal with the substance of the labour and social law governed by the European Social Charter. Such a court could be based on the Committee of Independent Experts, leading to an even clearer division between legal examination and political supervision under the Charter. This would give European social law an independent authority to rule on disputes for the first time. Another consequence of setting up such a judicial examining organ would be that proceedings in a social court culminating with a judgment would also enable the question of penalties to be removed from the domain of the Committee of Ministers and the question of independent enforcement to be raised.
54. In this context, even the new collective complaints procedure could be further developed into a complaints procedure relating to labour and social law. The commendable and fruitful deliberations of the committee known as Charte/Rel produced an important result in the form of the 1995 Protocol providing for a system of collective complaints. Unfortunately, it also has to be stated in this respect that only a tiny number of member states have ratified the Protocol, which is not being put into practice as a result. The Parliamentary Assembly should place great emphasis on the argument that this important progress in the exercise of social rights should rapidly be able to become reality.
55. It seems to me appropriate in this context to continue to give thought to opportunities for individual complaints and government complaints. There are precedents, which can be consulted, for both kinds of procedure, both at the Council of Europe and in other legal circles: as far as general human and civil rights are concerned, the last resort is the lodging of an individual complaint with the European Court of Human Rights, while government complaints are, for example, possible in the European Union.
56. The question of the consequences which the reporting and monitoring procedure should have is going to increase in importance. There certainly is still a need for improvement, a need not met sufficiently by the amendment of the rules on decision-taking within the Committee of Ministers. Political assessment is a matter for the governments, and there seems a need for the Parliamentary Assembly's role to be strengthened in this respect as well. The Assembly rightly disengaged itself in the Turin Protocol from the legal side of the cumbersome examination procedure. But this makes it all the more necessary to reintroduce the political obligation to monitor.
57. I have put forward two alternatives in this respect: both the Social, Health and Family Affairs Committee and the Monitoring Committee, which is responsible for monitoring respect for human and civil rights, could take over responsibility for political monitoring of the fundamental social rights enshrined in the European Social Charter. While the first proposal would bring to the fore practical responsibility for political support for the European social model, the alternative proposal makes clear the close connection between general human and civil rights and fundamental social rights.
58. There must, in the overall procedure, be no playing off against one another of the goal of tightening up the timing of the procedure and that of conducting an intensive examination of implementation of the Charter. It is therefore essential that attention be turned to reinforcing the funding and staffing of the Secretariat departments of the Council of Europe which deal with the European Social Charter, the Committee of Independent Experts, the Governmental Committee and the Committee of the Parliamentary Assembly given responsibility for monitoring social rights.
59. I have tried to make it clear that the European Social Charter is an expression of a quite specific European social and political view - closely connected with, and drawing on, the various legal cultures and social traditions of the states and societies of Europe. The Parliamentary Assembly, as the body representing the whole of democratic Europe, is called upon to make its contribution to the political analysis and to the implementation of the European Social Charter.
1. Gösta Esping-Andersen, Three Worlds of Welfare Capitalism, Cambridge 1990; Maurizio Ferrera, The "Southern Model" of Welfare in Social Europe, in: Journal of European Social Policy 6, 1996, p.17-37; Stefan Lessenich, "Three Worlds of Welfare Capitalism" - oder vier? Strukturwandel arbeits- und sozialpolitischer Regulierungsmuster in Spanien, in: Politische Vierteljahresschrift 35, 1994, p.224-244.
2. European Commission, Doc. KOM (97) 2000-2010 final, Brussels, 1997.
3. Martin Kempe, ZukunftsArbeit. Wege aus der sozialen Krise, Frankfurt am Main/Wien 1995; Martin Hulsebaut, Flexible work, atypical work and reduced working time; the question of social rights and social security, in: A time for working. A time for living; working papers prepared by the European Trade Union Institute, ETUI/ETUC Annual Conference, Dusseldorf/Neuss 1994.
4. Thomas H. Marshall, Citizenship and Social Class, London 1950; Eduard Heimann, Soziale Theorie des Kapitalismus, Theorie der Sozialpolitik (first edition, 1929), Frankfurt 1980.
Reporting committee: Social, Health and Family Affairs Committee
Budgetary implications for the Assembly: none
Reference to committee: Order No. 518 (1996) and Resolution 967 (1991)
Draft recommendation and draft order unanimously adopted by the committee on 7 January 1998
Members of the committee: Mr Gusenbauer, Chairman, Mrs Ragnarsdottir, Mr Gross (Vice-Chairmen), Mrs Albrink, Mr Alis Font, Mrs Andnor (Alternate: Mrs Wärnersson), Mr Arnau, Mrs Aytaman, Mrs Belohorska, Mrs Biga-Friganovic, MM. Boka, Bugli, De Carolis, Christodoulides, Chyzh, Cox, Dees, Dhaille (Alternate: Mr About), Dinçer, Evin, Mrs Fleetwood, Mr Flynn (Alternate: Ms Angela Smith), Mrs Gatterer, MM. Györivänyi, Haack, Hancock (Alternate: Mr Naysmith), Hegyi, Mrs Hĝegh, Jane_ek, Mrs Jirousova, MM. Kalos, Keller, Kotlar, Mrs Laternser, Mrs Lucyga, Mrs Luhtanen, MM. Lupu (Alternate: Mr Popescu), Ma_achowski, Marmazov, Martelli, Mattei, Mrs Maximus, MM. Mozgan, Nestor, Niza, Mrs Oleinki, MM. Pattison (Alternate: Mr Gregory), Poças Santos, Mrs Poptodorova, Mrs Pozza Tasca, Mrs Pulgar, MM. Raskinis, Regenwetter, Sceberras Trigona, Sharapov, Sincai, Skoularikis, Mrs Stefani, MM. Tahir, Valk, Valkeniers, Mme Vermot-Mangold, MM. Volodin, Wielowieyski
N.B. The names of those members present at the meeting are printed in italics
Secretaries to the committee: Mr Perin, Ms Meunier and Ms Clamer
1 Signatures not followed by ratification
2 Known as the Social Charter "relaunch" Committee