High level conference on the European Social Charter, Turin
17-18 October 2014
POSITIONS AND PROPOSALS OF THE ACADEMIC NETWORK ON THE SOCIAL CHARTER AND HUMAN RIGHTS
[Adopted in October 16, 2014 by the A.N.E.S.C.’s Assembly, in Turin.
The current text is a limited version of the full contribution of the Academic Network on the European Social Charter and Social Rights to the High Level Conference in Turin on October 17-18, 2014, which was adopted on the same day.]
The Academic Network on the European Social Charter and Social Rights seeks to promote the effectiveness of the European Social Charter and of the protection of social rights in Europe, and to contribute to the improvement of the mechanisms for the protection of social rights. With these aims in mind, it presents the following proposals.
The Network calls on the different organs of the Council of Europe to encourage the application of the European Social Charter by national courts. This could take the form of regular exchanges organised between the European Committee of Social Rights and the judges of the highest courts of the Member States of the Council of Europe, of training of these judges where necessary, and of dissemination of good practices. Consideration should also be given to the possibility of complementing the system of the European Social Charter by introducing an advisory opinion procedure allowing national courts to obtain authoritative interpretations of the relevant provisions of the Charter by the European Committee of Social Rights.
The Academic Network on the European Social Charter and Social Rights looks forward to contributing to this evolution. This would reinforce the subsidiary character of the monitoring mechanisms of the Charter envisaged by Part IV of the European Social Charter of 1961 (referred to by Article C of the Revised European Social Charter), as well as the effectiveness of the Charter within the territory of the States Parties. It could contribute to the training of judges and other officials and to the discussion on a possible advisory opinion mechanism. Moreover, the Network has resolved to undertake a systematic comparative study of the manner in which national courts of State Parties take into account the Charter, in order to facilitate the dissemination of good practices and to help identify both the advantages and the obstacles encountered at domestic level.
The Academic Network on the European Social Charter and Social Rights considers that the Council of Europe could encourage initiatives at national level that strengthen the taking into account of the Charter in domestic public policies, and could also ensure and contribute to the dissemination of good practices.
The Network calls on the European Union and its Member States to work towards ensuring that the Charter is taken into account in the design and implementation of national legislation and practice, and to promote the sharing of good practices in this regard. The Network is available for contributing to this process. The Network underlines the important role of national human rights institutions in this regard, including for monitoring the follow-up of the decisions and conclusions of the European Committee of Social Rights.
The European Social Charter has not, to date, been ratified by all the Member States of the Council of Europe. Moreover, only 15 States have ratified the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints of 1995
The Network submits that the Committee of Ministers of the Council of Europe could invite the Member States that are not yet party to the European Social Charter to accede to it as soon as possible, and invite the State Parties that have not yet ratified the 1995 Additional Protocol to do so within a reasonable period of time. At the same time, the Network would welcome a systematic study aiming to identify the obstacles faced in this regard by the different States concerned.
To date, only Finland has made a declaration recognising the right of national non-governmental organisations within its jurisdiction to file collective complaints.
The Committee of Ministers of the Council of Europe could recommend to all States that have accepted the procedure to make a declaration authorising national NGOs to submit complaints.
The 1995 Protocol providing for a system of collective complaints envisages that the decisions of the European Committee on Social Rights will only be made public after the intervention of the Committee of Ministers or after a period of four months.
This rule undermines the credibility and the effectiveness of the procedure. The Network therefore, favours the immediate publication of decisions by the European Committee of Social Rights. This would not prevent the Committee of Ministers from fully exercising the role envisaged for it under the European Social Charter and its Additional Protocol Providing for a System of Collective Complaints.
The Academic Network on the European Social Charter and Social Rights considers that the Committee of Ministers of the Council of Europe would be fully discharging its duties in the system of the European Social Charter by ensuring the follow-up to the decisions of the European Committee of Social Rights, in a manner analogous to the monitoring of the European Court of Human Rights’ decisions. In both cases, the issue consists of guaranteeing respect for the rule of law in Europe through the faithful implementation of decisions adopted by independent reigonal mechanisms for monitoring State compliance with international human rights obligations.
In order to strengthen the effectiveness of the monitoring of the undertakings of States regarding social rights, the European Committee of Social Rights should increase its membership. This does not necessarily imply adopting the solution applied in the framework of the European Convention on Human Rights, where the European Court of Human Rights is composed of judges elected in the name of each State Party.
In addition, the number of lawyers working in the secretariat of the European Social Charter should be increased.
The Network also notes that it is high time that the amendment contained in Article 3 of the Protocol of Turin of 1991 be applied. This would clearly highlight the importance attached by the Council of Europe and its Member States to the rights of the European Social Charter.
In his report on The Situation of Democracy, Human Rights and the Rule of Law in Europe, presented at the 124th meeting of the Committee of Ministers of the Council of Europe, held in Vienna on 5 and 6 May 2014, the Secretary General of the Council of Europe considered that there is an urgent need to find practical ways to resolve the contradictions between the European Social Charter and the norms of the European Union.
This call must be heeded. The Academic Network looks forward to contributing to this process.
The Network draws attention to the fact that, under the Collective Complaints Procedure, there is a mechanism of third party intervention (see section 32A of the Rules of the European Committee of Social Rights) that can be used in the dialogue between the system of the European Social Charter and the European Union. It would be helpful if the similar mechanisms in the European Union framework were broadened.
The importance of the protection of social rights increases when whole populations are fragilized and workers’ bargaining power is weakened. This is especially the case in times of economic crisis. Social rights must not be a variable to be adjusted to suit the economic and social policies developed in response to financial and economic crises and, today, the sovereign debt crisis of some States.
The Network notes that the Committee of Ministers would fulfill its role more effectively by following up the implementation of decisions and conclusions of the European Committee of Social Rights. It could limit itself initially to require States to notify the measures that they have taken to comply with the requirements of the Charter as set out by the European Committee of Social Rights in its decisions.
The Academic Network on the European Social Charter and Social Rights is concerned by the tendency of certain States to invoke recent European Court of Human Rights case law on austerity measures in order to evade their obligations under the European Social Charter.
It is important, in the view of the Network, to clearly and incontrovertibly reaffirm that the obligations flowing from the European Convention on Human Rights, which is a complementary instrument of the European Social Charter, are not aimed at neutralizing the commitments under the Charter.
On 17 and 18 October a High-level Conference on the European Social Charter will take place. This conference will bring together representatives from the Member States (47) and institutions of the Council of Europe as well as the European Union. The following issues are on the agenda:
CONTRIBUTIONS OF THE ANESC
At the meeting of the General Assembly in Paris, on 29 November 2013, the Network decided to contribute to this High-level Conference, which it considers to be of a strategic value for the future of the European Social Charter.
The first way of contribution consists of participating to the discussions of the Conference, through the three panels. The ANESC will be represented by
The second way is a round table organized by the Network itself on the day before the Conference (16 oct.). The aim of this round table is to report on the analyses and propositions drawn up by the Network on the topics dealt with by the Conference.
The third and last way consists of a general paper of the ANESC, to address to each Delegation to the Conference, as a working and reference document.
In fine, the fourth way consists in papers produced by individual members of the ANESC.