29 European Social Charter and the European Committee of Social Rights

Prof. Rehan Abeyratne

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Introduction

The European Social Charter is the primary instrument protecting economic, social and cultural rights in Europe. The Charter has been ratified by 43 out of 47 members of the Council of Europe. Along with the European Convention on Human Rights and the EU Charter of Fundamental Rights, it forms part of a comprehensive framework of human rights protection to almost all citizens of Europe.

The European Committee of Social Rights enforces the European Social Charter. The Committee is an independent expert body that monitors state compliance with the Charter by reviewing annual reports submitted by states parties and by issuing decisions in response to complaints filed against states parties.

This chapter introduces readers to the structure and workings of the European Social Charter and the European Committee of Social Rights. It begins by placing the European Social Charter within the broader regional human rights framework in Europe, describes the rights and policy aims within the Charter, and discusses the makeup and functions of the European Committee of Social Rights.

Learning Outcomes:

After completing this module, readers should know and understand:

  • The European Social Charter’s role within Europe’s regional human rights framework
  • Rights protected by the European Social Charter
  • The structure and function of the European Committee of Social Rights

The European Social Charter within the Regional Human Rights Framework

The European Social Charter is the principal instrument for the protection of economic, social and cultural rights in Europe. This section overviews how the Charter complements other human rights instruments in the region.

The 1950 European Convention on Human Rights (ECHR) is the primary regional human rights treaty in Europe. While the Convention is a highly respected and progressive human rights instrument, it only enumerates and explicitly protects civil and political rights. Protocol 1 to the ECHR, however, protects the right to education – an economic, social and cultural right. Article 2 of the Protocol provides that no person shall be denied the right to education and requires states to respect the right of parents to educate their children in line with their own religious and philosophical beliefs. All Council of Europe members (except Monaco and Switzerland) have ratified the Protocol. The European Court of Human Rights enforces the Convention and its Protocols. It is empowered to issue binding judgments against member states upon applications from individuals alleging the violation of their human rights or upon applications from other member states.

The European Social Charter (adopted in 1961, revised in 1996) complements the ECHR by enumerating and protecting a different set of human rights. The Charter offers comprehensive economic, social and cultural rights (ESCR) protection to citizens of states parties. The European Social Charter has been ratified by 43 out of 47 members of the Council of Europe. It is therefore enforceable against most European states, with the exceptions of Lichtenstein, Monaco, San Marino and Switzerland. It is worth noting that three of these countries (Lichenstein, Monaco and San Marino) are tiny principalities that are highly developed with no serious economic, social or cultural rights deprivations. Switzerland, due to its long history of neutrality on international legal matters, is also not a party to other regional agreements such as the ECHR and the constituent treaties of the European Union. Still, it provides strong ESCR protection through its domestic courts.

A good illustration of Switzerland’s domestic commitment to ESCRs is the case of V. v. Einwohnergemeinde X. und Regierungsrat des Kantons Bern (1995). It involved three Czechs, who were residing in Switzerland illegally. They had been expelled from Switzerland for committing criminal offenses, and returned with no papers, food, or means of subsistence and were denied social welfare by the state. They challenged this denial before the Swiss Federal Court – the highest court in Switzerland.

The Court held that this denial of social welfare violated an implied constitutional right to a social minimum or basic level of subsistence. According to the Court, this basic right was essential for the exercise of other, enumerated constitutional rights such as the rights to life, human dignity and equality. The Court further held that this right applied to both Swiss citizens and foreigners because it is a fundamental human right that applies to all human beings by virtue of their common human dignity. It therefore reaffirmed the interconnectedness of civil and political rights with economic, social and cultural rights, recognizing that a life of human dignity cannot be pursued without meeting basic needs.

Following this decision, the Swiss Constitution was revised in 2000 to provide for a right to aid in distress. Article 12 of the Constitution now states, “Whoever is in distress without the ability to take care of himself or herself has the right to help and assistance and to the means indispensable for a life led in human dignity.”

Another important regional instrument for the protection of ESCRs is the EU Charter of Fundamental Rights, which has a binding effect on all member states since 2009. It includes, inter alia, the right to education (Article 14), the right to fair and just working conditions (Article 31), and the right to social security and social assistance (Article 34). Courts are empowered to strike down any EU laws or domestic laws in member states that violate this Charter. All told, the European framework provides the most comprehensive regional protection of ESCRs in the world.

Rights Protected by the European Social Charter

The European Social Charter differs from the International Covenant on Economic, Social and Cultural Rights (ICESCR) by explicitly separating rights subject to progressive realization from rights that are immediately enforceable. Part I of the Charter, declares: “The Parties accept as the aim of their policy, to be pursued by all appropriate means both national and international in character, the attainment of conditions in which the fol-lowing rights and principles may be effectively realised.” It proceeds to list 31 rights and principles that parties must progressively realize through state policy. These include various rights of workers (inter alia to equal pay, safe and healthy working conditions, and collective bargaining), the right to protection against poverty and social exclusion, and the right to housing. These rights are framed in simple, aspirational terms. For instance, “All workers shall have the right to just conditions of work” or “Everyone has the right to benefit from social welfare services.”

Part II of the Charter, in contrast to Part I, states: “The Parties undertake, as provided for in Part III, to consider themselves bound by the obligations laid down in the following articles and paragraphs.” It then sets forth a range of rights that are immediately binding upon member states. These include the right to work (art. 1-6), the right to health (art. 11), the right to social security (art. 12), the rights to medical and welfare services (art. 13-14), the right to protection against poverty and social exclusion (art. 30), and the right to housing (art. 31). These rights are couched in broader language and more nuanced language than the list in Part I so that states can immediately take steps to fulfill the necessary obligations. For instance, Article 3 protects the right to safe and healthy working conditions. Article 3(1) directs states parties, in consultation with employers’ and workers’ organisations,“to formulate, implement and periodically review a coherent national policy on occupational safety, occupational health, and the working environment.”

With respect to certain rights, it is worth noting how the European Social Charter deviates from other human rights instruments. For instance, the Charter does not explicitly contain a right to food, but such a right can be inferred through Article 30, which provides that states must take measures “to promote the effective access of persons who live or risk living in a situation of social exclusion or poverty, as well as their families, to, in particular, employment, housing, training, education, culture and social and medical assistance.” This provision is phrased as a non-exhaustive list, meaning that food deprivation resulting in poverty may be covered within it.

On the right to education, the European Social Charter imposes greater obligations on states parties than the corresponding provisions of Protocol 1 to the ECHR. Article 2 of the Protocol merely sets forth negative state obligations, declaring, “no person shall be denied the right to education and requires states to respect the right of parents to educate their children in line with their own religious and philosophical beliefs.” Part II of the Charter goes further to encompass states obligations to provide vocational training on the basis of merit (Article 7), enact necessary measures to ensure that disabled persons have access to education and vocational training (Article 15), and to institute free primary and secondary education for all children and young person’s (Article 17).

While there is no single provision on cultural rights, the right to participate in cultural life forms part of many rights within the European Social Charter. For example, Article 15(3) requires states to undertake to promote the full social integration and participation of disabled persons in cultural activities. Article 23 similarly obligates states to allocate adequate resources to ensuring that elderly persons can play an active role in “public, social and cultural life.” Article 30, which establishes a right to protection against poverty and social exclusion, requires states to take measures to, inter alia, promote effective access to culture for persons at risk of living in a situation of poverty or social exclusion.

The Structure and Function of the European Committee of Social Rights

The European Committee of Social Rights is responsible for enforcing the European Social Charter. The Committee is composed of 15 independent experts elected to six-year terms by a committee of ministers representing the member states. The Committee performs two main functions. First, it requires all member states to submit annual reports of their compliance with the Charter and issues “conclusions” as to whether countries have fulfilled their obligations. Every year, states parties are expected to file reports to the Committee detailing their progress in realizing obligations under the Charter in particular thematic areas. For instance, in 2014, parties were asked to report on the theme of “labour rights”. These include, inter alia, the right to just conditions of work (Article 2), the right to a fair remuneration (Article 4), the right to organise (Article 5), the right to bargain collectively (Article 6), the right to information and consultation (Article 2 of the Additional Protocol), and the right to take part in the determination and improvement of the working conditions and working environment (Article 3 of the Additional Protocol). On each provision, the Committee issues conclusions on the particular state’s compliance. For instance, in its 2014 Conclusions on Italy, the Committee concluded that Italy complied with the Charter on 12 out of 23 situations. It also issued “7 conclusions of non-conformity”. On the remaining four situations, the Committee found that Italy had not provided sufficient information to make a definitive conclusion, which it declared amounted to a breach of the reporting obligation that Italy had entered into under the Charter.

Second, the Committee issues “decisions” in response to complaints filed through the “Collective Complaint Procedure.” This mechanism allows certain organizations to file complaints against member states alleging noncompliance with the Charter’s provisions. Many of the complaints filed against states parties directly involved, or are related to, the right to work. This is largely due to the kinds of organizations that are authorized to file complaints before the Committee. They include the European Trade Union Confederation, BUSINESSEUROPE, and the International Organization of Employers. In addition, employers’ associations and trade unions within each state party may also file complaints, as may a designated list of NGOs.

The Committee’s docket (or case load) reflects the nature of these organizations. For instance, in STTK ry and Tehy ry v. Finland (2001), the Committee found that health sector workers in Finland had been exposed to radiation at the workplace, and held that this violated Article 2§4, which requires states parties “to eliminate risks in inherently dangerous or unhealthy occupations.”

Another important case on the right to work involved a conflict between an EU Directive and provisions of the European Social Charter. In Confédération Française de l’Encadrement CFE-CGC v. France (2009), the Committee was asked whether France violated various right to work provisions in the European Social Charter. The Committee found that French Labour Code provisions regarding annual working days failed to set limits on daily and weekly work times in contravention of Article 2§1, wrongly regarded “on call periods” as rest periods in violation of Article 2§5, and imposed unpaid work hours and days on workers in violation of Article 4§2. In response to an argument that the French law resulted from a EU Directive, the Committee made clear that such directives do not override a state’s obligations under the Charter. It stated:

The Committee is neither competent to assess the conformity of national situations with a directive of the European Union nor to assess compliance of a directive with the European Social Charter. However, when member states of the European Union agree on binding measures in the form of directives which relate to matters within the remit of the European Social Charter, they should – both when preparing the text in question and when transposing it into national law – take full account of the commitments they have taken upon ratifying the European Social Charter. It is ultimately for the Committee to assess compliance of a national situation with the Charter.

Summary

The European Social Charter is the primary instrument aimed at protecting economic, social and cultural rights in Europe. It is part of a broader regional human rights framework that includes the European Convention on Human Rights and the EU Charter of Fundamental Rights. The Charter (adopted in 1961, revised in 1996) has been ratified by 43 out of 47 members of the Council of Europe.

Unlike the ICESCR, the European Social Charter is divided into two distinct sections. Part I lists aspirational rights that states parties must undertake to fulfill subject to progressive realization. Part II, by contrast, puts forth binding obligations on all states parties. The rights enshrined in Part II are framed in broader, piecemeal terms that allow for immediate compliance. They include the right to work (art. 1-6), the right to housing, the right to health (art. 11), social security (art. 12), the rights to medical and welfare services (art. 13-14), the right to protection against poverty and social exclusion (art. 30), and the right to housing (art. 31).

The European Committee of Social Rights is charged with enforcing the European Social Charter. It has two main enforcement mechanisms. First, all member states are required to submit annual reports of their compliance with the Charter’s provisions. The Committee issues “conclusions” as to whether countries have fulfilled their obligations under the Charter, focusing on specific groups of rights each year. Second, through a “Collective Complaint Procedure”, the Committee issues “decisions” in response to complaints filed by designated organizations. These organizations are predominantly concerned with labour rights and other issues related to the right to work.

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Reference

  • V.v. Einwohrnergemeine X und Regierungsrat des Kanton Bern, Swiss Federal Court (Tribunal fédéral suisse), BGE/ATF 121 I 367 (1995).
  • European Social Charter: European Committee of Social Rights, Conclusions XX-3 (2014) (Denmark),
  • January 2015, available at:
  • http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/State/Denmark%20XX3_en.pdf
  • European Social Charter: European Committee of Social Rights, Conclusions (2014) (Italy), January 2015, available at:
  • http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/Prep/Italy2014_en.pdf.
  • Council of Europe, European Social Charter: Organizations Entitled to Lodge Complaints with the Committee, available at:
  • http://www.coe.int/t/dghl/monitoring/socialcharter/OrganisationsEntitled/OrgEntitled_en.asp.
  • See European Committee of Social Rights, Collective Complaints Procedure: Summary of Decisions on the Merits 1998-2012, 30 May 2013, available at:
  • http://www.coe.int/t/dghl/monitoring/socialcharter/ComplaintSummaries/CCSummariesMerits2012 en.pdf