The european Social Charter (ESC) is a Council of Europe treaty adopted in 1961. 1 A revised Charter was adopted in 1996 and came into force in 1999. While the european Convention on Human Rights mainly guarantees civil and political Human Rights, the ESC protects economic and social rights. As of October 2015, 43 Council of Europe Members States have ratified the European Social Charter, and 34 of these have ratified the revised Charter. 2
The European Committee of Social Rights (ECSR) is composed of fifteen independent and impartial experts, elected by the Council of Europe Committee of Ministers for a period of six years, renewable once. The Committee determines whether State Parties’ national situations are in conformity in law and in practice with the Charter through a monitoring procedure based on national reports and collective complaints, adopting conclusions and decisions, respectively.
The role ofn the ESC in the European Union legal orden
A reference to the European Social Charter has also been introduced in the Treaty of Rome with the Single European Act of 1987. The European Social Charter is mentioned in Article 151 of the TFUE. Despite this, both the Court of Justice of the European Union (CJEU) and national judges rarely refer to the Charter. The European Social Charter, as interpreted by the European Committee of Social Rights, has not been considered binding by the CJEU even if many provisions of the Charter of Fundamental Rights have been inspired by the European Social Charter. The failure to incorporate the European Social Charter in the case-law of the CJEU can be explained on one hand by the fact that not all European Union Member States have ratified the revised European Social Charter and not all of them have accepted all the provisions of the European Social Charter; on the other hand by the traditional opposition of the CJEU to accept immediate effects of social rights 3 . However, the situation is improving and the CJEU has occasionally recognized that the Charter can orient the interpretation of European law. 4 This evolution can be seen also in national processes. 5
The collective complaints procedure was introduced by the 1995 Additional Protocol to the european Social Charter Providing for a System of Collective Complaints, with a view to increase the effectiveness, speed and impact of the Charter’s implementation. 6 The procedure allows “social partners”, notably, on european level, the european Trade Union Confederation (ETUC), for employees, and Business Europe and International Organisation for employers (OIe), for employers, and corresponding social partners at national level, and other non-governmental organisations to lodge “collective complaints” with the ECSR, upon which the Committee issues a decision on potential non-implementation of the Charter in the State concerned. 7
The reporting procedure, which has been significantly simplified since April 2014, varies according to whether the State has accepted the collective complaints procedure or not. 8
States having accepted the collective complaint mechanism must submit a simplified national report every second year, outlining what measures have been taken in response to the ECSR decisions on collective complaints. States Parties not having accepted the collective complaints procedure must submit a yearly report detailing their implementation of the Charter in one of four thematic groups. 9 These are: 1) Employment, training and equal opportunities; 2) Health, social security and social protection; 3) Labour rights; and 4) Children, family, migrants. each provision of the Charter is included in one of the four thematic groups. Consequently, each provision is reported on once every four years. 10 At the last stage of the supervisory process intervenes the Committee of Ministers, the decision-making body of the Council of Europe, composed of the Member States’ Ministers of Foreign Affairs. At the end of each supervision cycle it adopts resolutions, and may issue recommendations to Member States in cases of non-compliance, as a part of its role in the implementation of the european Social Charter. 11 State reporting may have a potential impact on the development in the field. For example, the Committee’s activity report of 2013 noted in particular the strong link between Article 3 on the right to health and safety at work, and Article 2 of the ECHR, securing the right to life. The Committee found several states in breach of the charter in relation to fatal accidents at work. 12 The Committee held that, in certain countries, 13 “a fatal accident rate which is more than twice as high as the european average constitutes evidence that measures taken to reduce such accidents are inadequate”. In some countries, the Committee “found fault with the systems for reporting accidents and occupational injuries in certain countries”, 14 with indications of widespread under-reporting and even concealment of workplace accidents and injuries. In some countries, 15 the Committee found “the entire labour inspection system to be inefficient, including due to insufficient resources, low numbers of inspection visits or ineffective fines and sanctions.”
The european Social Charter applies only to the “metropolitan territory of each party”. 16 Another limitation of the european Social Charter lies in the fact that foreigners are protected only insofar as they are originating from other States Parties and are lawfully resident or working regularly in the territory of the State Party. This limitation was somewhat relaxed by the 2003 landmark decision of FIDH v. France. 17
This seriously limits the relevance of the european Social Charter with regard to corporate-related Human Rights abuses occurring in non-State Parties. However, this mechanism might be useful to address violations of economic and social rights involving corporations in the territory of States Parties.
What rights are protected?
The ESC guarantees the following rights:
- The right to work (art. 1), and to just, safe and healthy conditions of work (art. 2, 3)
- The right to a fair remuneration (art. 4)
- The right to organise (art. 5), to bargain collectively (art. 6)
- The right of children and young persons to protection (art. 7)
- The right of employed women to protection (art. 8)
- The right to vocational guidance (art. 9) and training (art. 10)
- The right to protection of health (art. 11), which includes policy preventing illness and, in particular, the guarantee of a healthy environment
- The right to social security (art. 12), to social and medical assistance (art. 13), to benefit from social welfare services (art. 14)
- The right of physically or mentally disabled persons to vocational training, rehabilitation and social resettlement (art. 15)
- The right of the family to social, legal and economic protection (art. 16), the right of mothers and children to social and economic protection (art. 17)
- The right to engage in a gainful occupation in the territory of other Contracting Parties (art. 18)
- The right of migrant workers and their families to protection and assistance (art. 19)
The Revised european Social Charter further protects a number of rights including:
- The right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex (art. 20)
- The right to information and consultation (art. 21)
- The right of elderly persons to social protection (art. 23)
- The right to dignity at work (art. 26)
- The right of workers with family responsibilities to equal opportunities and treatment (art. 27)
- The right to protection against poverty and social exclusion (art. 30)
- The right to housing (art. 31)
Who can file a collective complaint? 18
In the case of all states that have accepted the Collective Complaint procedure, the following organisations are entitled to lodge complaints to the Committee:
European Trade Union Confederation (ETUC), Business Europe (formerly UNICE) and International Organisation of employers (IOE);
A number of International Non-Governmental Organisations (INGOs) which enjoy participatory status with the Council of Europe, and are on a list drawn up for this purpose by the Governmental Committee for a renewable 4-year period; 19
Employers’ organisations and trade unions in the country concerned.
In the case of states which have also made a special declaration according to Article 2 of the Collective Complaints Protocol the following are eligible to file complaints:
Under what conditions?
Collective complaints alleging violations of the Charter may only be lodged against states which have ratified the Protocol.
Admissibility criteria are more flexible than those before the European Court of Human Rights:
- Domestic remedies do not need to be exhausted.
- A similar case can be pending before national or international bodies while being examined by the ECSR.
Process and outcome
The Committee first examines the complaint to determine its admissibility. Once declared admissible a written procedure is set in motion, with an exchange of memorials between the parties.
The Committee may decide to hold a public hearing. “The Committee then takes a decision on the merits of the complaint, which it forwards to the parties concerned and the Committee of Ministers in a report. The report is made public within four months of it being forwarded. Finally, the Committee of Ministers adopts a resolution. If appropriate, it may recommend that the state concerned take specific measures to bring the situation into line with the Charter”. 20 These recommendations are available on the Committee of Ministers website. 21
The Committee in action in corporate-related Human Rights abuses
Marangopoulos foundation for Human Rights (mfhR) v. Greece (2006)
On 4 April 2005, the MFHR, a Greek NGO with consultative status before the Council of Europe, submitted a complaint against Greece for non-compliance or unsatisfactory compliance with Articles 2 (4), 3 (1) and (2) and 11 of the European Social Charter:
The complaint concerned the negative effects of heavy environmental pollution on the health of people working or living in communities near to areas where lignite is being extracted, transported, stockpiled and consumed for the generation of electricity in Greece. The complaint also dealt with concerns regarding the lack of measures adopted by the Greek State to eliminate or reduce these negative effects, and to ensure the full enjoyment of the right to the protection of health, and of the right to safe and healthy working conditions. It was found that the Greek State failed in its duty to fully implement or to enforce the relevant rules and regulations found in domestic, European and International Law. 22
The Public Power Corporation (DEH) of Greece is responsible for the vast majority of the mining and use of lignite for energy-production purposes. Even though DEH was partially privatized in 2001, the Greek state remained the largest shareholder (with 51.5% of shares in 2003) and exercised direct control over it.
In its judgement on 6 December 2006, the ECSR found a violation of Article 11§1-3 (the right to protection of health) and Article 3§2 (the right to safe and healthy working conditions). In relation to Article 3§2, the ECSR stated that Greece failed to provide for the enforcement of safety and health regulations through adequate measures of supervision). In its finding of another violation of Article 2§4 (the right to just conditions of work) the ECSR declared that Greece failed to provide for additional paid holidays or reduced working hours for workers engaged in dangerous or unhealthy occupations. The ECSR transmitted its report to the Committee of Ministers that adopted a resolution on 16 January, 2008, in which it declared that:
- The Greek government “does not provide sufficiently precise information to amount to a valid education policy aimed at persons living in lignite mining areas” and that “little has so far been done to organise systematic epidemiological monitoring of those concerned and no morbidity studies have been carried out.” 23
- Greece “is in breach of its obligation to monitor the enforcement of regulations on health and safety at work properly”. 24
- The Greek government “has taken no subsequent steps to enforce the right embodied in Article 2§4”. 25
FIDH v. Greece (2013) 26
On 8 July 2011, FIDH and the Hellenic League for Human Rights lodged a complaint to the European Committee of Social Rights against Greece, claiming that Greece failed to eliminate or reduce the harmful impact of the substantial industrial pollution of River Asopos on the health of residents. 27
Industrial liquid waste had been dumped into the River Asopos over decades, and, despite having recognized in 2010 “the serious and complex problem of pollution in the Asopos valley and the groundwater in this area”, the Greek authorities have taken few practical measures to address the issue and regulate the industrial emissions of corporate actors.
On 23 January 2013 the Committee unanimously concluded in its decision that Greece had violated Article 11§1 and 11§3 by failing to take appropriate measures to remove as far as possible the causes of ill-health and prevent the diseases, and Article 11§2, for failing to provide advisory and educational facilities for the promotion of health.
The Social Charter mechanism has an interesting potential, in particular as it relates to collective complaints. However, it is still used very little by trade unions, INGOs and national NGOs entitled to present complaints. The scope of this mechanism therefore remains limited and would gain from being further exploited.
FIDH v. Ireland (2017) 28
With complaint No. 110/2014, FIDH asserted that Irish law, policy and practices on social housing did not comply with European housing, social protection and anti-discrimination standards, in breach of Articles 11, 16, 17 and 30 of the Revised European Social Charter, read alone or in conjunction with the non-discrimination clause set forth in Article E of the Revised European Social Charter. In its decision on the merits, the Committee concluded to a violation by Ireland of Article 16 of the Charter (right of the family to social, legal and economic protection).
The complaint stated that poor conditions and other issues on housing estates violated key articles of the Revised European Social Charter, to which Ireland signed up in 2000, including the right to health, the right of families and children to have social, legal and economic protection and the right to protection against poverty and social exclusion. The complaint also stressed the absence of any avenue for tenants to legally challenge their conditions or otherwise raise problems in a structured way, and the lack of any independent representative organisation for Local Authority tenants. Tenants complained this set them apart from private renters and meant that they were effectively voiceless when it came to raising issues about their living conditions. Finally, the complaint highlighted the legacy of failed regeneration which, far from improving matters, had left many communities in worse situations.
Paragraph 111 of the decision read: “The Committee considers that, insofar as the right to family housing under Article 16 of the Charter is concerned, the issue at the heart of the present case is the adequacy of certain local authority housing”. Taking into account the legal and administrative backdrop concerning local authority housing in Ireland, the Committee found that “the Government ha[d] failed to take sufficient and timely measures to ensure the right to housing of an adequate standard for not an insignificant number of families living in local authority housing and therefore h[e]ld that there [was] a violation of Article 16 of the Charter in this respect” (paragraph 121).