MODULE 29

THE COUNCIL OF EUROPE FRAMEWORK AND ESC RIGHTS
USING MODULE 29 IN A TRAINING PROGRAM

The Purpose of Module 29

The purpose of this module is to provide an overview of the possibilities within the Council of Europe structure to protect ESC rights.

The module

• discusses the substantive ESC rights provisions within the European Social Charter;
• examines the monitoring and complaint mechanisms related to the Charter, and experi­ence to date with these mechanisms;
• explores possibilities for using the European Convention for the Protection of Human Rights and Fundamental Freedoms; and
• suggests strategies NGOs can use to promote ESC rights within the framework of the Council of Europe.

The Council of Europe

The Council of Europe (COE) was founded in 1949 and consists of forty member states.  It includes all the states of Western Europe and sixteen states of Central and Eastern Europe.  Its main objectives are to defend the preeminence of the rule of law, to safeguard democracy and to protect human rights.  These aims are carried out through the adoption of common standards that bind the states that sign and ratify them.  The European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted in 1950, is the most im­portant treaty.  Its ratification is a condition for membership in the COE.  In 1961, the Euro­pean Social Charter (ESC), an instrument specifically covering economic and social rights, was adopted. 

The European Social Charter

The European Social Charter and its additional protocols are the main instruments of the Council of Europe in the economic and social field:

• The European Social Charter (ESC) was adopted in 1961 and entered into force in 1965.  Twenty-two member states have ratified it.
• An Additional Protocol to the Charter, adopted in 1988 entered into force in 1992.  It has been ratified by eight member states.  It added four more rights to the ESC.
• A Protocol amending the European Social Charter was adopted in 1991.  It improved the supervisory system of the Charter.  It has been ratified by fourteen member states and will enter into force when all the contracting parties to the Charter have ratified it.  How­ever, the Committee of Ministers of the COE [1] has already agreed that the new procedures should be applied immediately to the greatest extent possible.
• An Additional Protocol to the European Social Charter was adopted in 1995.  This pro­vides for a new mechanism that allows social partners [2] and certain NGOs to file collec­tive complaints alleging that a state has failed to comply with its obligations.  It entered into force in 1998 and has been ratified by seven member states;
• The European Social Charter (Revised) was adopted in 1996 and has been ratified by one member state.  It will enter into force after three ratifications.  The revised text is a com­pilation of two previous texts (the European Social Charter and the 1988 Additional Pro­tocol, above); the governments also added several new rights.  The revised ESC will pro­gressively take the place of the European Social Charter of 1961. 

Contents of the European Social Charter [3]

According to part I of the ESC, the contracting states accept "as the aim of their policy  . . . the attainment of conditions in which the following rights and principles may be effectively realised.”  It then enumerates thirty-one different rights and principles.  These can be ar­ranged in three categories.

• The first category, the most important, is the protection of work.  It includes the right to work, the right to just conditions of work, the right to safe working conditions, freedom of association, the right to bargain collectively, the right to social security, the right to equal opportunities, the right to receive information and to be consulted, and the right to special protection for certain categories of workers-children and young persons, women, disabled persons and migrant workers;
• The second category covers the population in general.  It includes the right to vocational training and guidance, to enjoy the highest possible standard of health, the right to social and medical assistance, and the right to benefit from social welfare services.  The revised ESC has added the right to protection against poverty and social exclusion, and the right to decent housing;
• The third category is related to the particular protection outside the working environment.  It comprises the rights of children and young persons, mothers, families, disabled per­sons, the elderly, as well as migrant workers and their families.

Thus, the ESC has broad coverage, going well beyond employment and taking into consid­eration protections needed by people everywhere in their daily lives.

Part II of the ESC defines each of the thirty-one rights and principles mentioned in part I in the form of more precise obligations.

Part III contains a peculiar feature of the ESC: a contracting state may choose not to sub­scribe to all the provisions.  It offers the freedom to select a certain number of rights from among the provisions.  Contracting states have to accept a minimum of six among the nine articles considered the hard core rights (part III, art. A).  Among the twenty-two remaining articles, they must select an additional number of articles or numbered paragraphs.

Supervisory Machinery

The supervisory machinery of the ESC is described in part IV of the European Social Charter and also in the 1991 and 1995 Protocols.  It sets out an obligation to submit regular reports and defines the different monitoring bodies. 

Submission and examination of reports

According to part IV of the ESC and the 1991 Protocol, governments must report at regular intervals to the Secretary-General of the COE on the application of the provisions they have accepted.  Reports on provisions that were not accepted may also be requested from time to time, when the Committee of Ministers judges this appropriate. 

Governments must provide copies of their reports to national organizations of employers and trade unions.  Those organizations can send any comments to the Secretary-General, who will send a copy of those comments to the contracting states concerned.  International NGOs who have consultative status with the COE and specific competence will henceforth also re­ceive a copy of governments’ reports from the Secretary-General.  Reports are public, and thus the public may request copies.

A Committee of Independent Experts (CIE) examines each government report.  Members of the CIE sit in their individual capacity.  An observer from the International Labour Organi­zation (ILO) assists the CIE.  It assesses from a legal standpoint the compliance of national law and practice with the obligations arising from the ESC that were accepted by the con­tracting state.  On the completion of its examination, the CIE draws up its conclusions.  Con­clusions are "positive” if the national situation is in conformity and "negative” if the CIE considers that the situation is not-or not entirely-in compliance.  It defers its conclusions if it does not possess the necessary information.  The CIE may request additional informa­tion, or hold a meeting with the representatives of a contracting state.  It informs the interna­tional organizations of employers and trade unions.

The CIE may raise a "general question” addressed to all the governments if it wishes to study a question in more depth.  The adopted conclusions of the CIE are collected in a volume of Conclusions, [4] which is public. 

The Secretary-General will communicate the CIE’s conclusions to the Governmental Com­mittee, which is composed of representatives of each of the contracting states and observers of the European social partners.  The committee may consult representatives of international NGOs.  The Governmental Committee prepares the decisions of the Committee of Ministers.  It selects the situations that should, in its view, be the subject of recommendations to each contracting state, giving reasons for its selections on the basis of social, economic and other policy considerations.  The result of this work is a report to the Committee of Ministers, [5] which is also public. 

Based on this report, the Committee of Ministers adopts a resolution on the entire supervision cycle and addresses, if appropriate, individual recommendations to those states where the situation is not in conformity with the provisions of the Charter.  After the adoption of the Protocol of 1991, the Committee of Ministers began developing an increasing number of in­dividual recommendations.

The procedure for collective complaints

The provisions of the collective complaints procedure are contained in the 1995 Protocol. [6]   Its purpose is to improve the supervisory machinery of the Social Charter by enabling collec­tive complaints alleging violations of the Charter to be dealt with-in addition to the current procedure of government’s reports. The procedure can be summarized as follows:

Contents of the complaint

Complaints must allege an unsatisfactory application of the Charter and may be concerned with

• Provisions of part II of the Charter and the Protocol of 1988, as well as of the revised ESC to which the concerned state has bound itself
• The procedural aspects laid down in parts III, IV, V or VI
• Part I, in certain very serious cases

Complaints must be related to a collective situation.  This is different from the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which provides for a complaints procedure for individuals whose rights are violated.

Who can submit complaints?

The following groups of organisations are entitled to submit complaints:

• International organizations of employers and trade unions participating in the work of the Governmental Committee (art. 27, para.2)
• Other international NGOs having consultative status with the COE, which appear on a special list drawn up by the Governmental Committee
• Representative national organizations of employers and trade unions of the contracting state
• Any contracting state, which may, by declaration to the Secretary-General, allow other representative national nongovernmental organizations to file complaints against it

Procedure

Complaints must be sent to the Secretary-General of the COE, who, in turn, will transmit them to the Committee of Independent Experts (CIE).  The CIE first determines if the com­plaint is admissible.  It will request the government concerned and the initiator of the com­plaint to submit written information and observations on the question of admissibility.  When a complaint is admissible, the CIE will request the parties to submit all relevant written ex­planations or information.  Other contracting states to the 1995 Protocol and social partners are also invited to submit their comments. Before the CIE draws up its report, it has the right to organize a hearing with the representatives of the parties, but this is not obligatory.

On the basis of the information collected, the CIE will draw up for the Committee of Minis­ters a report containing its conclusions as to whether the contracting state against which the complaint is directed has, in a satisfactory manner, ensured that the provision of the Charter which is the subject of the complaint is applied. 

It is then the task of the Committee of Ministers to take a final decision.  In the event that the CIE concludes that there has been an unsatisfactory application, the Committee of Ministers will address a recommendation to the government concerned.  If the application is considered satisfactory, the committee will simply adopt a resolution.

Recommendations as such do not have a binding legal character.  This is different from the individual complaints procedures within the framework of the ECHR.  However, it is hoped that states will give due notice to recommendations adopted by the Committee of Ministers.

Finally, it should be noted that the 1995 Protocol is still very recent.  The CIE has drawn up rules of procedure [7] only recently, and twenty-six have been included on the list of NGOs en­titled to file claims.  Thus, as yet, there has been no practical experience with the complaints-filing procedure.

Practice and Case Law

Until recently the work of the ESC supervisory machinery, and that of the CIE in particular, was not widely publicized.  However, the reporting work of the CIE (Conclusions) over the period from 1961-1996 (thirteen review cycles) has recently been summarized, article by ar­ticle, paragraph by paragraph. [8]   The study gives an impressive picture of the work undertaken and offers a basic tool for NGOs promoting the implementation of the ESC.  The following paragraphs present very briefly some major aspects of this case law.

In its conclusions, the CIE closely examined the content of each provision, trying to define its essence, and then established the content of the obligation.  In some cases there is clearly an obligation to adopt legislation.  Other conclusions require the creation of services (for in­stance, free employment services) and stress the need to ensure their proper operation.  The principle of nondiscrimination (especially in regard to nationals of other contracting states) holds an important place in the work over the years.  For a number of provisions, the CIE stresses the need to provide sufficient information.  In some cases, it also establishes well-defined and precise norms, while in others, it decides only if the existing norm is "unreason­able.”  It also occasionally asks that regulations be developed to enforce the rights (e.g., sanctions, the possibility to raise claims, the right to appeal, the reversal of burden of proof).  At various times, the CIE has stated that a particular provision is dynamic and that substantial efforts must be undertaken towards progressive realization of the right.

One of the arguments that is traditionally given to justify the differential treatment provided to civil and political rights as opposed to social and economic rights has been the difficulty of invoking the latter before a judicial body.  Unlike many other international instruments, the text of the ESC itself distinguishes between general objectives, in part I, and concrete rights and principles, in part II.  The contracting states have defined the provisions of part II as con­cretely as possible.

Even part I of the ESC contains principles that could be enforced following a certain method of interpretation.  Many of its principles, such as principles 2 and 3, are formulated in a posi­tive way.  For example, "All workers have the right to just working conditions.”  It is diffi­cult to determine the content of "just working conditions.”  However, a supervisory body could be confronted with a situation of working conditions representing a very flagrant vio­lation of this principle, one afflicting human dignity.  Such a situation, which is contrary to what is accepted in other European countries, is a violation of the ESC and should be prohib­ited by national legislation and practice.

The ESC contains a number of provisions which because of their formulation are directly ex­ecutable in internal law and for this reason can be invoked before national courts.   Examples include article 5 (the right to organize), article 6 (the right to bargain collectively) and article 10 (consultation on the right to vocational training).  In addition, article 10 of the ECHR on freedom of expression can be linked with article 21 of the ESC on the right to information and consultation.  Article 22 of the ECHR can be linked with articles 3 and 4 of the ESC, which deal with the right to take part in the determination and improvement of working con­ditions and the working environment as well as article 29 on the right to information and consultation in collective redundancy procedures.  Close reading of the Conclusions of the CIE shows that many other articles contain directly executable provisions.

Another possible way for the CIE to expand the influence of the Charter in the future is to base its argumentation on the improvement of the social situation in most member states.  Such an interpretation could lead the CIE to gradually extend the scope of some of the provi­sions of the Charter and, by doing so, impose a higher level of protection everywhere.   In this respect, the CIE could find inspiration in the case law of the European Court of Human Rights concerning the European Convention.  The Court has applied such reasoning.  While, in general, the Court accepts that some states offer a higher level of protection to specific groups than others, it has also concluded that if the general trend in several member states has been positive, more of a basis exists for offering better protection everywhere.  As a re­sult, the Court could impose the new standards on the basis of the existence of new common principles.  It did so in a case concerning the right to private life (art. 8, ECHR). 

Many provisions of the ESC have a dynamic character, and the CIE has already stated that in some cases substantial efforts should be undertaken over the years.  Examples for such provi­sions are:

• Article 1(1), by which the member states commit themselves to achieve and maintain as high and stable a level of employment as possible.  According to the CIE, this provision is an obligation as to conduct rather than an obligation of result, but it is dynamic, and over the years substantial efforts should be undertaken.
• Article 4(1) concerning "adequate remuneration.”  According to the CIE, it implies that member states should develop policies leading to a decent standard of living and make a continuous effort in this regard.
• Article 12(3), the right to social security, itself states that the system should be raised progressively to a higher level.

Through examples such as these, the CIE could, over time, refer to improvements made in a great number of contracting states, develop the contents of the respective provisions, and im­pose them on the other states.

Still another way to broaden interpretation of the Charter is through the application of certain basic principles, such as equality, nondiscrimination and the right to privacy.  The European Court did this in cases concerning social rights and invoked positive obligations in its ruling.   A citizen residing in other than his own state appealed against the decision of that state re­fusing to grant him a welfare benefit.  He based his appeal on the denial of the right of prop­erty (art. 1 of Protocol 1) and on the basis of the equality provisions of the ECHR (art. 14).  The Court stated that the principle of equality did not require a state to establish a system of social security, but if such a system exists, the state must respect certain basic principles, such as equality.  In this case, respect for the equality principle implied that a national of an­other contracting party should have access to the rights related to welfare benefits existing for that country’s own citizens.

In its conclusions concerning the implementation of the Social Charter over the years, the CIE has developed a case law in which it has extended the grounds for protection against dis­crimination.  Its interpretation was codified in the new article E of the Revised Charter. Similarly, in the future, the CIE could apply other principles, such as respect for privacy, to articles such as the right on medical and social assistance (art. 13) or the right of a family to legal protection (art. 16).

The Right to Seek Remedies

The ability to seek a remedy for a violation is an important aspect of the implementation of rights.  The CIE has concluded, for example, that the right to social assistance (art. 13 of the ESC) represents a substantive right, and that an individual who is refused this right has the right to appeal to an independent body, such as a tribunal.  There are two implications of this conclusion by the CIE:

• The CIE can determine whether an individual will have a right to appeal in a member state.  If it so determines, and there are no such appeal provisions, this could lead to a recommendation addressed by the Committee of Ministers to the concerned state.
• Individuals in the concerned member states could appeal rejections by administrative bodies to judicial bodies, such as administrative or civil courts.

This conclusion could also mean that in the future the CIE could develop its case law further by determining that there should be a remedy for provisions other than article 13 of the ESC.

The right of social partners to be informed and consulted and their right to negotiate are ex­plicitly recognized by articles 5 and 6 of the ESC.  Such procedural guarantees are essential to safeguard numerous other rights, such as the right to decent housing (art. 31) and the right to be protected against poverty and social exclusion (art. 30).  The CIE could develop these information and consultation rights further.  NGOs, for example, should be recognized as partners to be consulted with regard to the implementation of these rights and have full ca­pacity to institute national legal proceedings.  That is essential, because NGOs are often pres­ent and have experience in situations where no aggrieved individual in a position to file ap­peal can be found. 

Application of other procedural rules, such as the reversal of the burden of proof, can also be very useful.  For example, where an employee has fallen ill and can show that s/he works in bad conditions with dangerous mate­rials, the employer (and not the employee) could be asked to demonstrate that there is no relationship whatever between the disability and the working conditions or that the employer has taken all necessary precautions.  The CIE has paid attention to this rule when exam­ining the implemen­tation of article 4(3) (equal pay).

Compensation con­stitutes another use­ful means to further the application of ESC rights.  Such a provision offers the tribunal or supervisory body the possibility of awarding compensation to an injured person.  It does not interfere with the responsibilities of the government, which maintains its liberty to choose its own way to implement the obligation.  The absence of the availability of compensation, however, could be seen as a violation of a specific provision.

It can be deduced that in its Conclusions over the years the CIE has given a certain number of specific provisions of the ESC a definite and precise core, making these rights enforceable.  The same can be said of a number of procedural guarantees.  The CIE has put forward many detailed questions.  At first sight, most provisions of the ESC contain a relatively open stan­dard, but the CIE has managed to extract more precise norms from these clauses.  As a result, the ESC has great potential for the effective implementation of social and economic rights.

The European Convention for the Protection of Human Rights and Fundamental Freedoms

The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) was adopted in Rome in November 1950 and entered into force in 1953.  It was completed by eleven Protocols.  Protocols 1, 4, 6 and 7 add new fundamental rights to those already protected by the ECHR.  Protocols 8, 9 and 11 deal with supervisory machinery.

The substantive provisions are contained in section I of the European Convention and in Protocols 1, 4, 6 and 7.  The ECHR sets forth a number of civil and political rights, such as the right to life, the prohibition against torture, the prohibition against slavery and forced la­bor, the right to due process and a fair trial, the right to respect for private and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, the right to marry, the right to an effective remedy, and a prohibition against discrimination.

Provisions such as the right to life, the prohibition against forced labor, the right to family life and freedom of assembly and association are linked to economic, social and cultural rights. 

Procedural aspects are treated in section II of the ECHR and also in Protocol 11.  With the entry into force of Protocol 11 in November 1998, procedures were rationalized and simpli­fied.  All alleged violations of the rights of persons are henceforth directly referred to the European Court of Human Rights (ECtHR).  This permanent court ensures the observance of the provisions of the treaties by the contracting states.  It may receive petitions from states or from any person, group of individuals or NGO.

Following the entry into force of Protocol 11, the Committee of Ministers is no longer em­powered to deal with the merits of the case, but it supervises the enforcement of the ECtHR’s judgments.  The judgments of the Court are final and binding.

The ECHR and the ESC have several aspects in common.  Each of the treaties contains pro­visions that aim at protecting similar rights, such as forced labor, respect for family life, or the freedom of assembly and association (including the right to form trade unions).

On several occasions, in its case law, the ECtHR has stated that social elements are a neces­sary precondition for the exercise of "traditional” human rights.  The need for a support sys­tem for legal aid was judged indispensable to guarantee the right to access to the courts; and a healthy environment was considered a precondition for the respect of family life.  In these cases, the Court defined a series of enforceable, positive duties derived from the rights pro­tected by the ECHR.  It stated a number of necessary conditions before accepting that such a duty could be enforced on the state. These included:

• There must be a connection with a specific right in the ECHR;
• The formulation of an obligation must be precise and applicable by the national courts.
• There must be common ground for the interpretation in national law and case law in the member states.
• The state has a margin of appreciation.

These two examples of the right to legal aid and a healthy environment demonstrate that both civil and political rights, and economic, social and cultural rights, can be linked by an un­derlying common set of principles. [9]

The Role NGOs Can Play to Promote ESC Rights [10]

Role of NGOs in the general framework of the Council of Europe

As early as 1952, the COE established a Consultative Status for NGOs and recognized their vital role in European society, thus guaranteeing the freedom of expression and association that are fundamental to democracy.  It initiated a dialogue with NGOs to meet a threefold need: (1) to know the views and aspirations of European citizens, (2) to provide direct repre­sentation for them with the COE, and (3) to publicize its own activities through these asso­ciations.  Over 380 NGOs have consultative status.  Contrary to the European Union, the COE’s relationship with NGOs is exemplary.  The rules for NGO participation provide that organizations must share the COE’s aims and contribute to its work; they should be interna­tional and representative, both geographically (have a basis in member states of the COE) and in their sphere of activity; and have a permanent headquarters and organizational struc­ture. 

NGOs can contribute at all levels of the COE, the Committee of Ministers, the Parliamentary Assembly and the Congress of Local and Regional Authorities of Europe.  Cooperation can take many forms, from simple consultation to full-scale collaboration on specific projects.  NGO experts may participate as consultants on various studies and contribute to the work of intergovernmental committees on an ad hoc basis; prepare memoranda for the Secretary-General; make oral or written statements to the Parliamentary Assembly’s Committee of Ex­perts; and address meetings organized by the COE.  NGOs report back to the public on the progress of COE projects in their sphere, while making their own expert advice available to the council.

Consultative NGOs share in the COE’s intergovernmental, parliamentary and standard-set­ting work.  NGOs have been involved in drawing up many of the douncil’s conventions and charters, including the revised ESC.

The COE has a permanent structure for cooperation with international NGOs through the an­nual Plenary Conference of NGOs as well as a liaison committee. 

Possibilities for NGOs to promote economic, social and cultural rights in the framework of the Council of Europe

• International NGOs should apply for consultative status in order to benefit from the gen­eral framework for collaboration established by the COE.  Through consultative status, NGOs have many opportunities to familiarize themselves with the ESC and ECHR, and to contribute to future developments.  Each NGO with consultative status will receive government reports and has the right to submit memoranda within the framework of the reporting procedure.  (It is also worth noting that the COE does not exclude working re­lationships with other NGOs.  In the past, such NGOs have submitted informal, ad hoc submissions in the domain of their particular interest.).
• NGOs should urge individual governments to accept the standards of the ESC by ratify­ing the ECHR and Protocols, if they have not yet done so, and removing obstacles that hamper acceptance of provisions of the ESC or ratification of its Protocols.
• NGOs should study government reports and comment on them by submitting memoranda to the COE.  They should examine the Conclusions of the CIE, the Report of the Gov­ernmental Committee, and the Recommendations of the Committee of Ministers on the implementation of the ESC.  When there is a recommendation (i.e., an unsatisfactory ap­plication of the Charter), NGOs can mobilize public opinion and the parliament, with a view of promoting the effective implementation of the ESC.  The Protocol of 1991 gives NGOs easier access to government reports.  More than before, international NGOs with consultative status may be invited to participate in the meetings of the Governmental Committee.
• The procedure for filing claims offers another avenue, and international NGOs with con­sultative status should apply for inclusion in the list of NGOs having the capacity to file complaints.  They can then select a significant case to address through a complaint. [11]
• NGOs should always consider the two human rights instruments of the Council of Europe together.  The ECHR contains social and political rights, and the ESC contains civil and political rights.  The case law of the ECtHR shows examples of mutual influence, as do the Conclusions of the CIE.  Constant comparison of contents and procedures can lead to new ways to ensure that future development of the two basic instruments, their case law and their supervisory machinery will be more closely aligned.

National-level promotion of economic, social and cultural rights

At the national level NGOs should

• call for ratification of all the instruments, the Charter and the Protocols;
• insist that their governments accept all the particular provisions that they judge important for ratification;
• campaign for governmental recognition of the right of national NGOs to submit com­plaints under the ESC;
• request government reports, and help to make these reports known;
• make informal, ad hoc submissions on these matters;
• call for comments on the government reports;
• ask to receive the Conclusions of the CIE and the reports of the Governmental Committee and the Committee of Ministers;
• inform public opinion, in general or on a specific point, and insist on the implementation of the Recommendations of the Committee of Ministers;
• work towards the adoption of national legislation implementing certain aspects of the content of ESC; and
• invoke ESC rights before tribunals and consider the Conclusions of the CIE as case law of the ESC.  

Author: The author of this module is Ton Redegeld.

USING MODULE 29 IN A TRAINING PROGRAM

NOTES