Doc. 8847

28 September 2000

Charter of Fundamental Rights of the European Union

Opinion

Social, Health and Family Affairs Committee

Rapporteur: Mr Claude Evin, France, Socialist Group

I.       Conclusions of the Committee

1.       The Social, Health and Family Affairs Committee fully supports the main conclusions of Mr Magnusson's report on behalf of the Committee on Legal Affairs and Human Rights: that the European Union ought to ratify the European Convention on Human Rights in order to avoid any risk of inconsistency or double standards of human rights protection in Europe, and that negotiations to this end should begin without delay.

2. However, the Social, Health and Family Affairs Committee recalls Recommendation 1415 (1999), according to which "economic and social rights are inherent aspects of human dignity and are clearly human rights, in the same way as are civil and political rights. These two categories of rights are interdependent and cannot be dealt with differently".

3.       Arguing that the Charter should incorporate and reflect the highest level of protection achieved in Europe, the Committee considers that the social rights guaranteed by the Charter as adopted by the European Council must correspond to those set forth in the revised European Social Charter, the Council of Europe instrument which sets the standard where fundamental social rights are concerned and is one of the pillars of the European social model. In this context, the Committee recalls Opinion No. 185 (1995) on the draft revised European Social Charter in which the Assembly expressed the wish that the Committee of Ministers might invite the European Union to accede to it.

4.       The Committee also pleads in favour of a direct individual right of appeal to the Court of Justice of the European Communities, and for incorporation of the Charter into the Union Treaties. Likewise, the Committee asks that a reference to the revised European Social Charter be included in the treaties. Given the impending enlargement of the Union, such a step, along with institutional reform, would serve to reaffirm the shared nature of European values.

II.       Explanatory memorandum

1.       Introduction

5.       Given the will of the European Union's Member States to build a genuine political community, it is appropriate to welcome this ambitious project, which is intended to give greater prominence to human rights within the Union and to consolidate these in a Charter. The European Union is thus offering its citizens an opportunity for shared identity that extends beyond the scope of economic and political ties. The members of the Convention should be congratulated on their work.

6.       However, worrying trends emerged during the drafting process: these sought to call into question the universal and indivisible nature of those fundamental rights that are an inseparable part of human dignity, namely civil, political, economic, social and cultural rights, and, by derogating from the modern understanding of this concept, sought to reduce these to civil and political rights alone.

7.       It is therefore satisfying to note that, in the meantime, a majority of the Convention's members have reached a consensus in favour of including in the Charter those economic and social rights considered to be fundamental and inalienable. The arguments of a large number of the Convention's members and numerous proposals for amendments tabled by the European Parliament, the United Nations, the Council of Europe and NGOs have thus borne fruit.

8.       Nonetheless, as the present opinion shows, vigilance is required to ensure that the rights enumerated in the final text adopted by the Heads of State and Government of the European Union do not fall short of the level of protection already achieved over several decades of European co-operation, particularly through the European Social Charter and the Revised Social Charter, Council of Europe instruments that are benchmarks in standard-setting with regard to fundamental social rights and that constitute a pillar of the European social model.

9.       The position of the Social, Health and Family Affairs Committee with regard to the Charter's contents may best be seen by reconsidering the proposals put forward in the Committee's Opinion of 24 January 2000 (Doc. 8627).

10.       In short, these focus on three concepts:

11.       At the same time, the Parliamentary Assembly included a request that the Council of Europe's Revised Social Charter be taken into account in its Resolution 1210 (2000) and Recommendation 1439 (2000).

12.       It should also be noted that, at the initiative of the Social, Health and Family Affairs Committee, the Parliamentary Assembly, in Recommendation 1415 (1999), invited the Council of Europe's Committee of Ministers to draft an additional Protocol to the European Convention on Human Rights on the subject of social rights.

2.       The work of the Convention

13.       The Convention entrusted with drawing up a draft Charter has met about ten times since January 2000, for the purpose of discussing and amending the proposals submitted by the Praesidium (composed of Roman Herzog, Chairperson, and the Vice-Chairpersons). On 28 July 2000, the Praesidium submitted a complete text of the draft Charter to members of the Convention for comments (Convent 45, Charter 4422/00).

14.       Discussion of economic and social rights is far from consensual. Certain members of the Convention consider that these rights do not belong in the Charter, insofar as they are unenforceable, whilst others argue for a broad understanding of these rights (culture, housing…). At the same time, defining these rights is a delicate matter, in view of each country's varying circumstances. The large number of amendments tabled on the subject of these rights has forced the Praesidium to accept a compromise.

15.       In the light of the comments received, the draft was discussed on 11-12 September 2000 by three of the Convention's constituent groups (representatives of national parliaments; representatives of Heads of State or Government; a delegation from the European Parliament). The following day, the European Commission, as the fourth constituent group, examined the text, and instead of the planned plenary meeting of the Convention, the Praesidium met to draw up a revised text (Convent 47, Charter 4470/00).

16.       The Convention then met again on 25 and 26 September 2000, both in its constituent groups and in plenary session, to make final changes to this revised text. The Convention will meet again on 2 October 2000 to approve the text, which will then be submitted to the European Council for examination and adoption at its meetings in Biarritz (13-14 October 2000) and Nice (7-9 December 2000).

3.       Content and evaluation of the draft Charter (revised Convent 47) with regard to social rights

17.       The charter is divided into a preamble and seven chapters (on dignity, freedoms, equality, solidarity, citizens' rights, justice and general provisions) with a total of 53 articles.

18.       Paragraph 5 of the preamble states, interestingly, that the Charter reaffirms the rights contained in "[…] the Social Charters adopted by the Community and by the Council of Europe, and the case law of […] the European Court of Human Rights". An explicit reference to the Council of Europe's Revised Social Charter and its Social Charter case law would, however, be a distinctly useful addition inasmuch as they constitute what is, to date, Europe's best-developed system of social rights protection. All European Union member
states have ratified the Social Charter and they all approved the Revised Social Charter by virtue of the fact that the Committee of Ministers of the Council of Europe opened it for signature.

19.       The provisions of particular interest to the Social, Health and Family Affairs Committee are in the Equality and Solidarity chapters. However, mention should be made of Article 3 (Right to the integrity of the person) in Chapter 1 (Dignity), which touches on issues of bioethics and respect for the sick. ("In the fields of medicine and biology, the following must be respected in particular: the free and informed consent of the person concerned, according to the procedures laid down by law; the prohibition of eugenic practices […]; the prohibition on making the human body and its parts as such a source of financial gain; the prohibition of the reproductive cloning of human beings.") The report entitled Explanations Relating to the Provisions of the Draft Charter (Convent 46) notes that the principles of this article are based on the (Council of Europe) Convention on Human Rights and Biomedicine, known as the Bioethics Convention, which was opened for signature in 1997 and has so far been ratified by three member states of the European Union (as well as three non-members). The Charter thus represents a step forward in this field, provided, of course, that its provisions are given binding force.

20.       Another interesting article – in the Chapter on Freedoms – is Article 12 (Freedom of assembly and of association) inasmuch as it explicitly recognises the right of trade union membership: "Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in […] trade union […] matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests." The same chapter recognises the right to vocational and continuing training (Article 14) and includes a provision on freedom to choose an occupation (Article 15), the latter including the right to work and to engage in a freely chosen occupation, and stipulating that nationals of third countries who are authorised to work in EU member states are entitled to working conditions equivalent to those of citizens of the Union.

21.       Chapter III (Equality) includes Articles 20-25. Article 23 recognises the principle of equality between men and women, specifically with regard to employment (covering equality of opportunity, equal treatment and equal pay), without ruling out positive-discrimination measures. Article 24 concerns the protection of children (the right to such protection and care as is necessary for their well-being etc). A new Article 24a recognises the rights of the elderly "to lead a life of dignity and independence and to participate in social and cultural life". Lastly, Article 25 affirms the need to ensure the independence and social and occupational integration of persons with disabilities.

22.       Chapter IV (Solidarity) includes Articles 26-37. In the field of workers' rights the Charter recognises the right of workers or their representatives, at the appropriate levels, to be informed and consulted in good time (Article 26), the right of workers and employers or their respective organisations to negotiate and conclude collective agreements and also the right to take collective action, including strike action (Article 27). Although freedom of trade union membership is covered in Article 12, and the explicit mention of the right to strike represents an advance on the wording of the previous draft, there is no reference here to the protection of trade union activists.

23.       As well as these collective rights, the Charter affirms a number of individual social rights, eg the right of access to a free (job) placement service (Article 28), the right to protection against unjustified dismissal (Article 29), the right to conditions that respect workers' health, safety and dignity and the right to limitation of maximum working hours, with reference to daily and weekly rest periods and annual leave (Article 30). Child labour is prohibited and there are provisions for the protection of young people at work (Article 31). The Charter also provides that working conditions must respect family life, and specifically maternity. Article 32 lays down the right to paid maternity leave and to parental leave following adoption. What is missing is the right – contained in the Council of Europe Social Charter – to fair remuneration.

24.       Social assistance is dealt with in Article 33 of the Charter. This stipulates that the European Union recognises a number of rights: entitlement to social security benefits and social services (in respect of pregnancy, illness, industrial accidents, dependency, old age and loss of employment); equality of entitlement to social benefits for all persons residing and moving legally within the European Union; and entitlement to social assistance and housing assistance in order to ensure a decent existence. This is the only article of the Charter that refers to housing and the reference is inadequate because it concerns only housing assistance rather than housing as such.

25.       Even more fundamentally, the Charter ought to include the right as such to protection against poverty and exclusion, which is the subject of Article 30 of the Council of Europe's Revised Social Charter and remains a major policy objective of the Heads of State and Government of its member countries, as expressed at their summit in Strasbourg on 10-11 October 1997.

26.       A striking aspect of Article 33 of the Charter is the fact that it does not actually stipulate that certain rights must, as such, be protected. The wording is, "The Union recognises and respects the entitlement […]". Thus the Charter cannot be deemed here to establish or fully protect new rights. Nor does the wording constitute a declaration of intention: it does not state that the Union must promote these social rights (and it is probably not part of its purpose to do so). The only effect of this provision is to prevent the Union from requiring a member state to reduce its level of social protection in order to apply a Community policy.

27.       Lastly, in relation to rights, attention should be given to Article 34, on health care, which establishes "the right of access to preventive health care and the right to benefit from medical treatment" (it does not stipulate whether the right of access shall be free). The Charter is imprecise here, asserting that "A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities."

28.       Finally, the application and protection of the rights contained in the Charter must be examined. This aspect is covered in Chapter VII (General Provisions). Here Article 50 defines the Charter's scope. Inasmuch as it is addressed to the institutions and bodies of the Union only when they are implementing Union law, and establishes no new power or task for the Community or the Union, the Charter ignores a wide range of government policies (and, thus, official acts that affect the citizen). Some of the rights to which it refers (eg in relation to social assistance) do not fall within the remit of Community law or Union provisions.

29.       With regard to the scope of the rights guaranteed by the Charter, Article 51 provides for possible limitations on the rights therein and anticipates potential conflicts of interest with the European Convention on Human Rights. This article ought likewise – and in order to ensure that any limitations do not undermine the principles contained in the European Social Charter and the Revised Social Charter – to make reference (in its paragraph 3) to these instruments.

30.       Lastly, Article 52 concerns the level of protection of the rights in relation to international agreements to which the Union, the Community or all the member states are party (and here the word "all", which is too limiting, should be deleted), including the European Convention for the Protection of Human Rights and the member states' constitutions. Once again, the European Social Charter and the Revised Social Charter should also be mentioned.

31.       Another important omission is the absence in the Charter of any provision for a direct individual right of appeal to the Court of Justice of the European Communities, or for incorporation into the treaties. There is no doubt that provisions to this effect would enhance the Charter's credibility with Union citizens.

4.       Report submitted on behalf of the Committee on Legal Affairs and Human Rights

32.       The Social, Health and Family Affairs Committee fully supports the main conclusion of Mr Magnusson's report on behalf of the Committee on Legal Affairs and Human Rights: that the European Union ought to ratify the European Convention on Human Rights in order to avoid any risk of inconsistency or double standards of human rights protection in Europe, and that negotiations to this end should begin without delay. This is in line with the Assembly's position as set out in Resolution 1210 (2000) and Recommendation 1439 (2000), and endorsed by the European Parliament, the European Commission and the European Court of Human Rights.

33. However, the Social, Health and Family Affairs Committee is less reticent and takes a less restrictive position on the question of economic and social rights being included in the Charter, arguing that the Charter should incorporate and reflect the highest level of protection achieved in Europe. For that reason, it considers that social rights guaranteed by the Charter as adopted by the European Council must correspond to those set forth in the revised European Social Charter, the Council of Europe instrument which sets the standard where fundamental social rights are concerned and is one of the pillars of the European social model. In this context, the Committee recalls Opinion No. 185 (1995) on the draft revised European Social Charter in which the Assembly expressed the wish that the Committee of Ministers might invite the European Union to accede to it.

34. Finally, efforts should be redoubled to have the Charter itself and a reference to the European Social Charter incorporated into the Union treaties, as urged by the European Parliament in the resolution that it adopted on 16 March 2000. Given the impending enlargement of the Union, such a step, along with institutional reform, would serve to reaffirm the shared nature of European values.

5.       Proposed amendments

35.       The Social, Health and Family Affairs Committee wishes to propose the following amendments to the (revised) draft resolution and (revised) draft recommendation in Doc. 8819 revised:

Amendment No. 1:

      In the (revised) draft resolution, add after paragraph 2 a new paragraph worded as follows:

Amendment No 2:

      In the (revised) draft resolution, paragraph 4, replace the words "regrets that the level of protection recognised by the draft Charter does not always reach" by the following words:

Amendment No. 3:

      In paragraph 8 of the (revised) draft resolution, add a sub-paragraph worded as follows:

Amendment No. 4:

      In paragraph 8 of the (revised) draft resolution, add a sub-paragraph worded as follows:

Amendment No. 5:

      In the (revised) draft recommendation, add a new paragraph worded as follows:

Reporting committee: Committee on Legal Affairs and Human Rights (Doc. 8819 rev.).

Committee for opinion: Social, Health and Family Affairs Committee.

Reference to committee: Order No. 561 (2000) of 25 January 2000

Opinion approved by the committee on 28 September 2000.

Secretaries to the committee: Mr Newman, Mrs Meunier and Mrs Clamer.