European Labour Law Lecture 02B

This document was designed in 1961as a counterpart of the ECHR (comprising notably civil and political rights) to comprise the fundamental social rights. Ratification was slow (Netherlands only in 1981), but now almost all ca. 50 MS of the CoE have ratified. Between 1961 and 1996 is was a few times improved via Protocols. In 1996 a Revised European Social Charter was issued, now ratified by ca. 30 MS The adoption of the Revised Charter did not immediately obliterate the 1961 Charter. This Charter remains binding on all aspects on which MS have not ratified the comparable provisions of the Revised Charter The European Social Charter (Revised) 1

The last line focusses us at the possibility of selective ratification of both the Charter and the Revised Charter. Charter and Revised Charter are characterised by a dual structure. In Part 1 the fundamental social rights are mentioned in rather inaccurate one-liners. In Part 2 these one-liners are stated more precisely in a number of obligations undertaken by the ratifying States The European Social Charter (Revised) 2

This last line focusses us at the character of the Charter. States are binding themselves, but – in the eyes of most lawyers – the Charter does not create rights, which the citizens can invoke in court. Indeed in almost no MS courts have recognised the binding force of the Charter, that citizens may invoke. Interesting exception: The Supreme Court of The Netherlands recognised direct applicability (horizontally and vertically) of art. 6 (4) ESC (right to strike). Moreover there is no international court to supervise the application of the Charter. As a result the ESC Charter has remained a rather obscure instrument The European Social Charter (Revised) 3

Of course there is a supervisory mechanism, even an elaborate one: The Committee on Social Rights (CSR, formally called Committee of Independent Experts) The Governmental Committee (national top civil servants) The Parliamentary Assembly of the Council of Europe The Committee of Ministers of the Council of Europe. Supervision is practised via two-yearly supervisory cycles. This system of supervision has been somewhat enforced by a 1995 Protocol, introducing a procedure to file collective complaints The European Social Charter (Revised) 4

The Contents of the Charter The 1961 Charter enumerates 19 fundamental social rights The First Protocol of 1988 added 4 more rights The Revised Charter took over these 23 rights and added 7 more rights. Most aspects of modern labour are covered by all these rights: Fair conditions of work, trade union rights, rights of special groups (women/children), non discrimination, rights of information and consultation, social security, even housing! 2.2. The European Social Charter (Revised) 5

Let us now, by way of example, pay attention to the right to strike, contained in Art. 6(4). According to CSR this should also apply to civil servants, safe special categories. However, Germany is persistently refusing to apply this right to about half of its civil servants. According to CSR the right to strike should not be balanced against other rights by way of the principle of proportionality However, as we shall see, the ECJ is doing just that (Laval case) and the European Commission is likely to propose the same in its Monty II proposal. All examples of the low standing of the CSR! All its case law is not more than soft law The European Social Charter (Revised) 6

Let us now, by way of example, pat attention to another in the Revised ESC, art. 27, the right of workers with family responsibilities to equal opportunities and equal treatment. In Part II this art. 27 has been given concrete form in obligations for the States - to take measures to ensure equal treatment for workers with family responsibilities (s 1) - To create a right to parental leave (s 2) - To ensure protection against dismissal on account of the family responsibilities of the worker (s. 3). This is a rather new article, so there is not much quasi-case law. Let’s, however, see what there is The European Social Charter (Revised) 7

Measures to ensure equal treatment for workers with family responsibilities (s 1) This section mentions more or less vaguely measures on the access to work (1a) and child care facilities (1c). More concrete the CSR thinks of - Provisions guaranteeing workers who took parental leave to return to their former job or to an equivalent job, as it is provided in the EU Directive on parental leave. - The right of workers on adaptation of working times, to a switch to part-time work or a switch back to full-time work - A right to parents to stay away from their work in case of serious illness of the child - Inclusion the period of parental leave for the calculation of pensions 2.2. The European Social Charter (Revised) 8

The right to parental leave (art. 27 (2) is rather superficial, leaving it to the MS to define its duration and conditions! Even the EU Directive on Parental leave is more concrete on duration (at least 3, now, in new Directive 4 months) On the conditions there is a Resolution of the Parliamentary Assembly of 2002 asking for paid parental leave. However, this has no binding force for the MS! In fact the supervisory bodies (notably CSR) cannot do much more than emphasize some literal aspects of this right, e.g. that both the mother and the father must be able to exercise this right (criticising Bulgaria) The European Social Charter (Revised) 9

The right to protection against dismissal on account of the family responsibilities of the worker (art. 27 (3) The CSR requires As regards the instruments: sufficiently accessible proceedings by which workers can realise this protection As regards the remedies: reinstatement should be the rule, damages the exception 2.2. The European Social Charter (Revised) 10

All this quasi case law of the CSR, the resolutions of the Parliamentary Assembly and the few recommendations of the Committee of Ministers are without binding force. Member States may disregard them. Citizens cannot invoke them in court. However, the protagonists of human rights hope that they will inspire the Court of Justice of the EU and the European Court for Human Rights in their interpretation of the EU laws and the ECHR. That is their relevance The European Social Charter (Revised) 11