The European Social Charter: A Commentary, Part 2: Commentary of the Preamble, Part I and Part II (Articles 1 to 10) 9004434054, 9789004434059

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The European Social Charter: A Commentary

The European Social Charter: A Commentary By

The Academic Network on the European Social Charter and Social Rights

Volume 2 Preamble, Part I and Part II (Articles 1 to 10) Edited by

Carole Nivard

LEIDEN | BOSTON

The Library of Congress Cataloging-​in-​Publication Data is available online at https://​cata​log.loc.gov lc record available at https://​lccn.loc.gov/2022018237​

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. issn 2949-​7 876 isbn 978-​9 0-​0 4-​4 3405-​9 (hardback) isbn 978-​9 0-​0 4-​4 3406-​6 (e-​book) Copyright 2023 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Brill Hotei, Brill Schöningh, Brill Fink, Brill mentis, Vandenhoeck & Ruprecht, Böhlau, V&R unipress and Wageningen Academic. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-​use and/​or translations must be addressed to Koninklijke Brill nv via brill.com or copyright.com. This book is printed on acid-​free paper and produced in a sustainable manner.

Contents  Foreword vii  Preliminary Remarks and Acknowledgments viii  Abbreviations x  Table of Cases xii  Notes on Contributors xviii  Preambles 1 Giovanni Guiglia

Part 1 List of Rights and Principles  List of Rights and Principles 41 Carole Nivard

Part 2 Revised European Social Charter 1  The Right to Work 71 Maria Giovannone The Right to Just Conditions of Work 98 2  Magdalena Butrymowicz and Robert Tabaszewski The Right to Safe and Healthy Working Conditions 121 3  Ana Cristina Ribeiro Costa Right to a Fair Remuneration 141 4  Michel Miné The Right to Organise 170 5  Cristina Sâmboan The Right to Bargain Collectively 216 6  Konstantina Chatzilaou

vi Contents 7  The Right of Children and Young Persons to Protection 250 Anna Drabarz, Łucja Kobroń-​Gąsiorowska 8  The Right of Employed Women to Protection of Maternity 273 Catarina de Oliveira Carvalho, Luísa Andias Gonçalves The Right to Vocational Guidance 305 9  Iulia Boghirnea and Ioana Nely Militaru The Right to Vocational Training 318 10  Maria Giovannone  Selected Bibliography 337

Foreword For 60 years now, the European Social Charter has been instrumental in fulfilling the mission stated in the Council of Europe’s Statute: “to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress”. Together with the European Convention on Human Rights, it forms the basis of human rights protection in Europe. The Committee of Ministers of the Council of Europe has regularly affirmed the importance of the Charter in guaranteeing social rights across the continent, most recently at its Hamburg Session in May this year (2021). The timing of this statement was particularly apt, given the way in which the COVID-19 pandemic has exposed the fragility of human rights protections in times of sudden adversity. Moreover, while the long-term economic effects of the pandemic are still to be felt, we know that in periods of downturn it is often the poorest who suffer most. There has therefore never been a better moment to ensure the effectiveness of our social rights system. In April of this year, I presented a series of reform proposals to the Committee of Ministers. These aim to strengthen political commitment and support for the Charter, and to improve and simplify its procedures while promoting dialogue, communication and visibility. The proposals also mark the beginning of a period of reflection on the possibility of further substantive and procedural developments. My proposals stress the importance of awareness-raising activities and of disseminating knowledge on the case law of the European Committee of Social Rights. I also point to the importance of including the Charter in university and other higher education curricula and of providing information and training for legal professionals, including judges. ANESC is playing its own awareness-raising role, doing first-rate work to increase the Charter’s visibility. This publication is the latest, important example. The first instalment of a multi-volume scholarly commentary on the Charter and its procedures, it is set to become a reference for academics and practitioners. As a landmark document, it is fitting that it coincides with the Charter’s 60th anniversary, and a statement of the centrality of social rights to modern European life. Marija Pejčinović Burić (Secretary General of the Council of Europe) Strasbourg, July 2021

Preliminary Remarks and Acknowledgments Dear reader, We are pleased to present the second volume of the 8-​part Commentary on the European Social Charter, written by the Academic Network on the European Social Charter and Social Rights (anesc or the Network).1 As Giovanni Guiglia, anesc/​r acse’s general coordinator wrote: “Our Network aims to promote the European Social Charter and the other legal instruments for the protection of social rights, in law, policy-​making and academic studies, across different countries and their academics, in Europe. To this end, the anesc develops activities in the fields of education, training, research, and pro-​bono legal practice. The Network is composed of nearly 200 members from 14 European countries (Belgium, Cyprus, France, Greece, Hungary, Ireland, Italy, Poland, Portugal, Romania, Slovenia, Switzerland, Turkey and the United Kingdom). These are mainly academics who work in different legal fields, including social, constitutional, international and labour law, as well as few judges, lawyers and human rights consultants. A few years ago, the anesc’s governing bodies decided that the Network would start the drafting of the first-​ever-​published Commentary on the European Social Charter System, and the first output of this process is this volume. I am confident that, together with the other seven volumes, this Commentary can become a particularly important reference document to navigate European social standards and procedures vis-​à-​vis the many socioeconomic challenges of our times, and a useful companion for academics and human rights practitioners”.2 The Volume 1 published in May 2022 (and the Ebook in June 2022) addresses cross-​cutting themes. Therefore, this Volume is the first one analysing the European Social Charter provisions, starting by the Preamble, Part 1 and Articles 1 to 10. Then, next volumes will come as follows: Volume 3 (Articles 11 to 19); Volume 4 (Articles 20 to 31); Volume 5 (Part 3, Art A and B, Part 4, Art C); Volume 6 (Part 4, art D –​Collective complaints); Volume 7 (Part 5 –​Art E, F, G, H, I, J, Part 6 –​Art K, L, M, N, O and introduction of the Appendix); Volume 8 (Rules of the European Committee of Social Rights).

1 The network website at: https://​www.racse-​anesc.org/​en/​. 2 “Preliminary Remarks & Acknowledgments”, in anesc, Stefano Angeleri, and Carole Nivard (eds.), The European Social Charter: A Commentary. Volume 1, Cross-​cutting Themes, Brill, 2022, p. x.

Preliminary Remarks and Acknowledgments

ix

The edition of this volume was under the responsibility of anesc/​r acse’ s French section. Next volumes will be edited by others national sections as follows: section of Poland (Volume 3), section of Portugal (Volume 4), section of Turkey (Volume 5), section of Greece (Volume 6), section of Romania (Volume 7), section of Belgium (Volume 8). I would like to congratulate deeply all the authors of this volume for their valuable work. I warmly thank all others anesc members that contributed to the substantive and formal editing of this volume: Giovanni Boggero, Mouloud Boumghar, Konstantina Chatzilaou, Catarina de Oliveira Carvalho, Kübra Dogan Yenisey, Filip Dorssemont, Murat Engin, Despoina Kiltidou, Lucja Kobron-​Gasiorowska, Anna-​Maria Konsta, Lorenza Mola, Fabrizio Proietti, Johanna Ryczka, Catarina Santos Botelho, Cristina Samboan, Catarina Santos Botelho, Robert Tabaszewski and Sébastien Van Drooghenbroeck, for their proof-​reading as members of the editorial Committee. Finally, we acknowledge Alexander Boyne and Roan Kennedy, our linguistic proof-​readers. Special mentions go to Stefano Angeleri, Giovanni Guiglia, Brigitte Napiwocka and Danuta Wisniewska-​Cazals (Secretaries of the anesc) for their help in the administrative and coordination work, and the preparation of the editorial guidelines. I wish you a good reading and hope that this project will contribute to the dissemination of knowledge and interest on the European Social Charter and the jurisprudence of the European Committee on Social Rights. Carole Nivard (Coordinator of ANESC/​RACSE’s French section, Editor of the Volume) Rouen, July 2022

Abbreviations achr American Convention on Human Rights cddh/​s chr Steering Committee for Human Rights cedaw Convention on the Elimination of all Forms of Discrimination against Women cfreu Charter of Fundamental Rights of the European Union cjeu Court of Justice of the European Union cm Committee of Ministers of the Council of Europe CoE Council of Europe crpd Convention on the Rights of Persons with Disabilities echr European Convention on Human Rights ECmHR European Commission of Human Rights ecsr European Committee of Social Rights (and, prior to 1998, the Committee of Independent Experts) ECtHR European Court of Human Rights esc European Social Charter esc (rev) European Social Charter (Revised) etuc European Trade Union Confederation EU European Union ff Following (pages) IACmHR Inter-​American Commission of Human Rights IACtHR Inter-​American Court of Human Rights iccpr International Covenant on Civil and Political Rights icescr International Covenant on Economic, Social and Cultural Rights icj International Court of Justice icrmw International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families crc Convention on the Rights of the Child ilo International Labour Office (bit in French) /​International Labour Organization (oit in French) (I)ngo(s) (International) Non-​Governmental Organization(s) oas Organization of American States oecd Organisation for Economic Co-​operation and Development oj Official Journal pcij Permanent Court of International Justice teu Treaty on European Union tfeu Treaty on the Functioning of the European Union udhr Universal Declaration of Human Rights

Abbreviations UN United Nations Organization who World Health Organization

xi

Table of Cases

European Committee of Social Rights

ecsr, International Commission of Jurists (icj) v. Portugal, complaint No. 1/​ 1998, decision on the merits of 9 September 1999 ecsr, Syndicat National des Professions du Tourisme v. France, complaint No. 6/​ 1999, decision on the merits of 10 October 2000 ecsr, European Federation of Employees in Public Services (eurofedop) v. France, complaint No. 2/​1999, Decision on merits of 4 December 2000 ecsr, European Federation of Employees in Public Services (eurofedop) v. Italy, complaint No. 4/​1999, Decision on merits of 4 December 2000 ecsr, European Federation of Employees in Public Services (eurofedop) v. Portugal, complaint No. 5/​1999, Decision on merits of 4 December 2000 ecsr, International Federation of Human Rights Leagues (fidh) v. Greece, Complaint No. 7/​2000, decision on the merits of 5 December 2000 ecsr, Quaker Council for European Affairs (qcea) v. Greece, complaint No. 8/​ 2000, decision on the merits of 12 December 2002 ecsr, Confédération Française de l’Encadrement (cfe-​c gc) v. France, complaint No. 9/​2000, decision on admissibility of 6 November 2000 ecsr, sttk ry and Tehy ry v. Finland, complaint No. 10/​2000, decision on the merits of 17 October 2001 ecsr, European Council of Police Trade Unions (cesp) v. Portugal, complaint No. 11/​2001, decision on the merits of 21 May 2001 ecsr, Confederation of Swedish Enterprise v. Sweden, complaint No. 12/​2002, decision on the merits of 15 May 2003 ecsr, International Association Autism-​Europe (iaae) v. France, complaint No. 13/​2002, decision on the merits of 4 November 2003 ecsr, Confédération Française de l’Encadrement (cfe-​c gc) v. France, complaint No. 16/​2003, decision on the merits of 12 October 2004 ecsr, Confédération générale du travail (cgt) v. France, complaint No. 20/​2003, decision on the merits of 8 December 2004 escr, Confédération Générale du Travail (cgt) v. France, complaint No. 22/​ 2003, decision on the merits of 7 December 2004 ecsr, Syndicat Occitan de l’Education v. France, complaint No. 23/​2003, decision on the merits of 7 July 2004 ecsr, Centrale Générale des services publics (cgsp) vs. Belgium, complaint No. 25/​2004, decision on the merits of 9 May 2005

Table of Cases

xiii

ecsr, European Roma Rights Centre (errc) v. Italy, complaint No. 27/​2004, decision on the merits of 7 December 2005 ecsr, saigi –​Syndicat des Hauts Fonctionnaires v. France, complaint No. 29/​ 2005, decision on admissibility of 14 June 2005 ecsr, Marangopoulos Foundation for Human Rights (mfhr) v. Greece, complaint No. 30/​2005, decision on the merits of 6 December 2006 ecsr, European Roma Rights Center v. Bulgaria, complaint No. 31/​2005, decision on the merits of 18 October 2006 ecsr, European Trade Union Confederation (etuc), Confederation of Independent Trade Unions in Bulgaria (citub), Confederation of Labour “Podkrepa” (cl “Podkrepa”) v. Bulgaria, complaint No. 32/​2005, decision on the merits of 16 October 2006 ecsr, International Movement atd Fourth World v. France, complaint No. 33/​ 2006, decision on the merits of 5 December 2007 ecsr, European Council of Police Trade Unions (cesp) v. Portugal, complaint No. 37/​2006, decision on the merits of 3 December 2007 ecsr, European Council of Police Trade Unions (cesp) v. Portugal, complaint No. 40/​2007, decision on the merits of 23 September 2008 ecsr, Confédération Générale du Travail (cgt) v. France, complaint No. 55/​ 2009, decision on the merits of 23 June 2010 ecsr, European Council of Police Trade Unions (cesp), v. France, complaint No. 57/​2009, decision on the merits of 1 December 2010 ecsr, European Trade Union Confederation (etuc) /​Centrale Générale des Syndicats Libéraux de Belgique (cgslb)/​Confédération des Syndicats Chrétiens de Belgique (csc) /​Fédération Générale du Travail de Belgique (fgtb) v. Belgium, complaint No. 59/​2009, decision on the merits of 13 November 2011 ecsr, General Federation of employees of the national electric power corporation (genop-​d ei) and Confederation of Greek Civil Servants’ Trade Unions (adedy) v. Greece, complaint No. 65/​2011, decision on the merits of 23 May 2012 ecsr, General Federation of Employees of the National Electric Power Corporation (genop-​d ei) and Confederation of Greek Civil Servants’ Trade Unions (adedy) v. Greece, complaint No. 66/​2011, decision on the merits of 23 May 2012 ecsr, European Council of Police Trade Unions (cesp) v. France, complaint No. 68/​2011, decision on the merits of 5 November 2012 ecsr, Defence for Children International (dci) v. Belgium, complaint No. 69/​ 2011, decision on the merits of 23 October 2012

xiv 

Table of Cases

ecsr, The Central Association of Carers in Finland v. Finland, complaint No. 70/​ 2011, decision on the merits of 4 December 2012 ecsr, Panhellenic Federation of Public Service Pensioners v. Greece, complaint No. 77/​2012, decision on the merits of 7 December 2012 ecsr, Pensioners’ Union of the Athens-​ Piraeus Electric Railways (I.S.A.P.) v. Greece, complaint No. 78/​2012, decision on the merits of 7 December 2012 ecsr, Panhellenic Federation of pensioners of the Public Electricity Corporation (pos-​d ei) v. Greece, complaint No. 79/​2012, decision on the merits of 7 December 2012 ecsr, Pensioners’ Union of the Agricultural Bank of Greece (ate) v. Greece, complaint No. 80/​2012, decision on the merits of 7 December 2012 ecsr, European Action of the Disabled (aeh) v. France, complaint No. 81/​2012, decision on the merits of 11 September 2013 ecsr, European Confederation of Police (EuroCOP) v. Ireland, complaint No. 83/​ 2012, decision on the admissibility and merits of 2 December 2013 ecsr, Union Syndicale des Magistrats Administratifs (usma) v. France, complaint No. 84/​2012, decision on admissibility and the merits of 2 April 2014 ecsr, Swedish Trade Union Confederation (lo) and Swedish Confederation of Professional Employees (tco) v. Sweden, complaint No. 85/​2012, decision on the merits of 3 July 2013 ecsr, Federation of Catholic Family Associations in Europe (fafce) v. Ireland, complaint No. 89/​2013, decision on the merits of 12 September 2014 ecsr, Confederazione Generale Italiana del Lavoro (cgil) v. Italy, complaint No. 91/​2013, decision on the merits of 12 October 2015 ecsr, European Council of Police Trade Unions (cesp) v. France, complaint No. 101/​2013, decision on the merits of 27 January 2016 ecsr, Greek General Confederation of Labour (gsee) v. Greece, complaint No. 111/​2014, decision on the merits of 23 March 2017 ecsr, European Organisation of Military Associations (euromil) v. Ireland, complaint No. 112/​2014, decision on the merits of 12 February 2018 ecsr, Unione Italiana del Lavoro u.i.l. Scuola-​Sicilia v. Italy, complaint No. 113/​ 2014, decision on the merits of 24 January 2018 ecsr, European Committee for Home-​Based Priority Action for the Child and the Family (eurocef) v. France, complaint No. 114/​2015, decision on the merits of 24 January 2018 ecsr, Matica Hrvatskih Sindikata v. Croatia, complaint No. 116/​2015, decision on the merits of 21 March 2018 ecsr, Confédération Générale du Travail Force Ouvrière (fo) v. France, complaint No. 118/​2015, decision on the merits of 3 July 2018

Table of Cases

xv

ecsr, European Roma and Travellers Forum (ertf) v. France, complaint No. 119/​2015, decision on the merits of 5 December 2017 ecsr, Irish Congress of Trade Unions (ictu) v. Ireland, complaint No. 123/​2016, decision on the merits of 12 September 2018 ecsr, University Women of Europe (uwe) v. Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Greece, Ireland, Italy, the Netherlands, Norway, Portugal, Slovenia and Sweden, complaints Nos. 124/​2016 to 138/​ 2016, decisions on the merits of 5 and 6 December 2019 ecsr, Confederazione Generale Italiana de Lavoro (cgil) v. Italy, complaint No. 140/​2016, decision on the merits of 22 January 2019 ecsr, Unione Generale Lavoratori –​Federazione Nazionale Corpo forestale dello Stato (ugl–​c fs) and Sindacato autonomo polizia ambientale forestale (sapaf) v. Italy, complaint No. 143/​2017, decision on the merits of 3 July 2019 ecsr, Confédération générale du travail (cgt) and Confédération française de l’encadrement-​c gc (cfe-​c gc) v. France, complaint No. 149/​2017, decision on the merits of 19 May 2021 ecsr, Confédération générale du travail (cgt) v. France, complaint No. 154/​ 2017, decision on the merits of 18 October 2018 ecsr, International Federation of Associations of the Elderly (fiapa) v. France, complaint No. 162/​2018, decision on the merits of 10 December 2020 ecsr, International Commission of Jurists (icj) and European Council for Refugees and Exiles (ecre) v. Greece, complaint No. 173/​2018, decision on the merits of 26 January 2021 ecsr, Confédération française démocratique du travail (cfdt) v. France, complaint No. 189/​2020, decision on admissibility of 6 July 2020

European Court of Human Rights

ECtHR, 9 October 1979, Airey v. Ireland, No. 6289/​73 ECtHR, 13 August 1981, Young, James and Webster v. the United Kingdom, Nos. 7601/​76 and 7806/​77 ECtHR, 23 November 1983, Van der Mussele v. Belgium, No. 8919/​80 ECtHR, 30 June 1993, Sigurdur A. Sigurjónsson v. Iceland, No. 16130/​90 ECtHR, 24 September 2002, Nerva and Others v. The United Kingdom, No. 42295/​98 ECtHR, 30 September 2003, Koua Poirrez v. France, No. 40892/​1998 ECtHR, 30 June 2005, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland, No. 45036/​98

xvi 

Table of Cases

ECtHR, 26 July 2005, Siliadin v. France, No. 73316/​01 ECtHR, 11 January 2006, Sørensen and Rasmussen v. Denmark, Nos. 52562/​99 and 52620/​99 ECtHR, 21 February 2006, Tüm Haber Sen and Çinar v. Turkey, No. 28602/​95 ECtHR, 12 November 2008, Demir and Baykara v. Turkey, No. 34503/​97 ECtHR, 21 April 2009, Enerji Yapi-​Yol Sen v. Turkey, No. 68959/​01 ECtHR, 7 January 2010, Rantsev v. Cyprus and Russia, No. 25965/​04 ECtHR, 16 March 2010, Orsus and Others v. Croatia, No. 15766/​03 ECtHR, 27 April 2010, Vörður Ólafsson v. Iceland, No. 20161/​06 ECtHR, 5 October 2010 [dec.], Köpke v. Germany, No. 420/​07 ECtHR, 11 October 2012, cn and v. v. France, No. 67724/​09 ECtHR, 29 January 2013, Horváth and Kiss v. Hungary, No. 11146/​11, § 104 ECtHR, 7 May 2013 [dec], Koufaki v. Greece and adedy v. Greece, Nos. 57665/​12 and 57657/​12 ECtHR, 8 April 2014, National Union of Rail, Maritime and Transport Workers v. the United Kingdom, No. 31045/​10 ECtHR, 2 October 2014, Matelly v. France, No. 10609/​10 ECtHR, 2 October 2014, Adefdromil v. France, No. 32191/​09 ECtHR, 24 October 2014, Brincat and others v. Malta, No. 60908/​11, 62110/​11, 62129/​11, 62312/​11 and 62338/​11 ECtHR, 9 February 2016, Meier v. Switzerland, No. 10109/​14. ECtHR, 30 March 2017, Chowdury v. Greece, No. 21884/​15 ECtHR, 5 September 2017, Bârbulescu v. Romania, No. 61496/​08 ECtHR, 17 October 2019, López Ribalda and others v. Spain, No. 1874/​13 and 8567/​13 ECtHR, 10 June 2021, Norwegian Confederation of Trade Unions (lo) and Norwegian Transport Workers’ Union (ntf) vs. Norway, No 45487/​17

Court of Justice of the European Union (Former cjec)

cjeu, 8 April 1976, Gabrielle Defrenne ii, C-​43/​75 cjeu, 15 June 1978, Gabrielle Defrenne iii, C-​149/​77 ecj 31 March 1981, Paula Jenkins v. Kingsgate [Clothing Productions] Ltd, C-​96 /​ 80 cjeu, 13 February 1985, Gravier, C-​293/​83 cjeu, 1 July 1986, Rummler, C-​237/​85 cjeu, 22 September 1988, Bergemann, 236/​87 cjeu, 25 July 1991, Tribunal de Police, Illkirch, France v. Alfred Stoeckel, C-​345/​89 cjeu, 2 August 1993, Marshall ii, C-​271/​91

Table of Cases

xvii

cjeu, 27 October 1993, Pamela Mary Enderby, C-​127/​92 cjeu, 5 May 1994, Habermann-​Beltermann, C-​421/​92 cjeu, 14 July 1994, Carole Louise Webb, C-​32/​93 cjeu, 31 May 1995, Royal Copenhagen, C-​400/​93 cjeu, 12 November 1996, United Kingdom of Great Britain and Northern Ireland v. Council of the European Union, C-​84/​94 cjeu, 30 April 1998, Evelyne Thibault, C-​136/​95 cjeu, 3 February 2000, Silke-​Karin Mahlburg, C-​207/​98 cjeu, 10 February 2000, Deutsche Telekom & Deutsche Post, C-​270/​97 and C-​271/​97 cjeu, 26 June 2001, bectu v. Secretary of State of Trade and Industry, C-​173/​99 cjeu, 26 June 2001, Susan Brunnhofer, C-​381/​99 cjeu, 4 October 2001, Tele Danmark A/​S, C-​109/​00 cjeu, 21 June 2007, E. Jonkman, C-​231/​06 cjeu, 13 September 2007, Yolanda Del Cerro Alonso, C-​307/​05 cjeu, 6 December 2007, Ursula Voß v. Land Berlin, C-​300/​06 cjeu, gc, 15 April 2008, Impact, C-​268/​06 cjeu, 30 September 2010, Pedro Manuel Roca Álvarez v. Sesa Start España ett sa, C-​104/​09 cjeu, 25 April 2013, Asociaţia Accept contre Consiliul Naţional pentru Combaterea Discriminării, C-​81/​12 cjeu, 6 May 2014, Commission v Parliament and Council, C-​43/​12 cjeu 3 June 2021, K and others v Tesco Stores Ltd, C-​624/​19

Notes on Contributors Luísa Andias Gonçalves has a Degree in Law by the Faculty of Law of the University of Coimbra, a Master in Legal and Business Sciences by the Faculty of Law of the University of Coimbra and a PhD in Labour and Social Labour, by the Faculty of Law of the University of Salamanca. She is Professor at the School of Technology and Management, Polytechnic Institute of Leiria, Invited lecturer in the Master in Law at the Oporto Law School of Portuguese Catholic University and Member of the Portuguese section of racse-​a nesc. Author of “A redução do valor das pensões à luz do artigo 1.º, do Protocolo nº 1, da Convenção Europeia dos Direitos do Homem”, Lex Social, Vol. 7, 2017, pp. 141–​156, and “Reflexões em torno da reforma das prestações sociais –​das pensões em especial”, in Por onde vai o Estado Social em Portugal?, Vida Económica, 2014, pp. 189–​214. Email: [email protected] Iulia Boghirnea is lecturer in General Theory of Law and Legal Sociology at the University of Pitești. She graduated the Law Faculty of Valahia University of Târgoviște and the Faculty of Administrative Studies at the Romanian National School of Political and Administrative Studies (snspa). She earned her PhD in General Theory of Law from the Bucharest Nicolae Titulescu University in 2010 and she holds a master degree in Private International Law at University of Bucharest. She pursued a postdoctoral research program at the Legal Research Institute Acad. Andrei Rădulescu of the Romanian Academy in 2015. She is a member of the Romanian section of the Academic Network on the European Social Charter and Social Rights (anesc) since 2018. She is the author of several articles and studies published by scientific journals in her professional field of interest. Magdalena Butrymowicz is an Assistant Professor at the Department of Social Policy at Pontifical University of John Paul ii in Kraków. Her areas of research include human rights, legal regulations, and the social position of groups at particular risk of exclusion, such as immigrants, ethnic populations, children, or national and ethnic minorities. She was a visiting professor at the University of Arizona, visiting lecturer at Trent University in Peterborough, and an associate academic researcher at the University of Oxford. Magdalena is a member of Law and Society, the British Association of Canadian Studies, and the International Law

Notes on Contributors

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Association. She has authored many chapters in peer-​reviewed multi-​author monographs of national and international character and articles in awarded scientific journals. She is editor of the Library of Law series and has co-​ organized many nationwide conferences as part of the Law of Economics and Human Rights cycle. She has researched in cooperation with the University of Trent Nottingham and the Arctic University of Tromso and led classes in the field of legal aspects of social assistance or legal education in social work. She also runs her own professional practice as a legal advisor specialising in immigration law and human rights. Email: [email protected] Konstantina Chatzilaou is Associate professor at CY Cergy Paris Université. Member of the Labouratoire d’études juridiques et politiques (lejep), she devotes her research to national, comparative, European and international labour law. She is the author of the book “L’action collective des travailleurs et les libertés économiques. Essai sur une rencontre dans les ordres juridiques nationaux et supranationaux”, published by the Institut universitaire Varenne in 2016. Email : kchatzilaou@windowslive. com Anna Drabarz is Doctor of Law and Assistant Professor at the Department of Public and European International Law at the Faculty of Law of the University of Bialystok (Poland). She specialises in issues related to the implementation of the rights of persons with disabilities in international and European Union law. Email: [email protected] Maria Giovannone holds a degree in Law from the University of Naples Federico ii. In 2010, she obtained a PhD in Industrial Relations Law from the University of Modena and Reggio Emilia. She is a researcher in Labour Law and Lecturer in Labour Market Law, Global Economy, Labour Rights, and European Social Law at the University Roma Tre. Since 2017, she has been a member of the Commission for the Certification of Employment and Contracts at the Department of Economics of the University of Roma Tre. In 2021 she was appointed Academic Senator at the University of Roma Tre and member of the Permanent Advisory Commission for Health and Safety at Work at the Ministry of Labour and Social Policies. In addition, she is a labour lawyer, lecturer and scientific coordinator in several university Master’s degrees and research projects and author of numerous publications on labour law. Email: [email protected]

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Giovanni Guiglia is graduated in Law at the University of Pavia. He is Professor in Public Law at the University of Verona, Department of Law. Among several responsibilities and memberships, hi is the General coordinator of the Academic Network on the European Social Charter and Social Rights (anesc). He has published several essays on social rights, among which: ‘The opportunities of the European Social Charter (in Italy)’, in: http://​www.eur​opea​nrig​hts.eu (11 May 2011); ‘El derecho a la seguridad social en tiempo de crisis: Grecia ante el Comité Europeo de Derechos Sociales (ceds)’, in Revista Europea de Derechos Fundamentales, n° 22, 2013, pp. 15–​44; ‘The importance of the European Social Charter in the Italian legal System: in pursuit of a stronger protection of social rights in a normative and internationally integrated system’, in M. D’Amico, G. Guiglia, (eds./​dir.), ‘European Social Charter and the challenges of the xxi century’, esi (Naples, 2014), pp. 51–​96; ‘La Charte sociale européenne et le droit de l’Union européenne: après les conflits, les synergies’, in J. Luther, L. Mola (eds./​ dir.), ‘Europe’s Social Rights under the ‘Turin Process’’, Editoriale Scientifica (Naples, 2016), pp. 123–​134; ‘La relevancia del Protocolo Facultativo del Pacto Internacional de Derechos Económicos, Sociales y Culturales en el ordenamiento italiano: perspectiva jurisprudencial’, in Lex Social. Revista jurídica de los derechos sociales, vol. 6, n° 1, 2016, (http://​www.upo.es/​revis​tas/​index .php/​lex​_​soc​ial/​arti​cle/​downl​oad/​1651/​ 1331), pp. 1–​32; ‘Italian Constitutional Court and social rights in times of crisis: in search of balance between principles and values of contemporary constitutionalism’, in Rivista aic, n° 3, 2018, pp. 1–​25. Email: giovanni.guiglia@racse-​anesc.org Łucja Kobroń-​Gąsiorowska is Doctor of Law, Attorney at Law and Assistant Professor at the Institute of Law and Economics at the Pedagogical University of Krakow (Poland). She specialises in international labour law and whistleblowing. Email: lucja.kobron-​ [email protected] Michel Miné is Professor of Labor Law, Chair of Labor Law and Human Rights, Conservatoire National des Arts et Métiers (Cnam, France), Research laboratories: Lise/​ Cnrs/​Cnam, speaker at the Academy of European Law (era, Trier), author of numerous books, in particular Droit des discriminations dans l’emploi et le travail, Larcier (Brussels) and Droit du travail, Eyrolles (Paris). Email: michel. [email protected]

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Carole Nivard is a Senior Lecturer in Public Law at Rouen University. As a member of the Centre Universitaire Rouennais d’Etudes juridiques curej (ea 4703), she dedicates her research to the guarantee of fundamental social rights in national, European and international law. She is the author of the book La justiciabilité des droits sociaux. Etude de droit conventionnel européen published by Bruylant Editors in 2012. As a member of the anesc, she coordinates French section and co-​editored the Volume i of the Commentary of the European Social Charter with Stefano Angeleri. Email: carole.nivard@univ-​rouen.fr Catarina de Oliveira Carvalho is PhD in Labour Law, Associate Professor at Porto Faculty of Law, Universidade Católica Portuguesa and Researcher at Católica Research Centre for the Future of Law (ceid). She is Vice-​General Coordinator of the Academic Network on European Social Charter and Social Rights (anesc), Member of ir Share Network –​Industrial Relations Share, Board member of the Portuguese Association of Labour Law (apodit) and President Arbitrator in the Arbitration Tribunal of the Economic and Social Council. Participation in several European projects related to the implementation of the EU Labour Law. Author of several publications in Labour and Civil Law, namely “Concilier vie professionnelle et vie familiale pour promouvoir l’égalité femmes-​hommes au Portugal: perspectives à la lumière de la Directive 2019/​1158”, Revue de Droit Comparé du Travail et de la Sécurité Sociale, No. 3, 2020, pp. 82–​93 ; “Trabalho no domicílio, trabalho doméstico e trabalhos de cuidado no ordenamento jurídico português: primeira leitura à luz das Convenções da oit”, Documentación Laboural, No. 116, 2019, pp. 41–​56. Email : [email protected] Ana Cristina Ribeiro Costa has a Degree in Law by the Faculty of Law of Universidade do Porto, Masters in Private Law by the Oporto Law School of the Portuguese Catholic University and PhD by the same University. She is Assistant Professor at Oporto Law School of the Portuguese Catholic University, directing and lecturing the course of “Occupational Health and Safety Law” and the seminar of “Work-​ Related Accidents” in the Master in Employment Law, and lecturing the courses of “Employment and Labour Law”, “Civil Procedural Law” and the seminar of “Labour Procedural Law” in the Degree in Law. She is Member of Católica Research Centre for the Future of Law, Member of the Portuguese section of racse-​a nesc, Lawyer –​Senior Legal Employment Specialist at Remote, Alumna of the US Department of State and Fulbrighter. And Member of several working groups of financed projects. Main publications: “Retos de la

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transformación digital del trabajo por el Derecho a la salud y la seguridad en el trabajo portugués –​Sera que ‘en casa del herrero, cuchillo de palo’?”, in aavv, De la economía digital a la sociedad del ework decente: condiciones sociolaborales para una industria 4.0 justa e inclusiva, dir. Cristóbal Molina Navarrete, M.ª Rosa Valecillo Gámez, coord. Estefánia González Cobaleda, Thomson Reuters Aranzadi, Pamplona, 2022, 383–​402; “El contenido del Convenio n.º 190 de la Organización Internacional del Trabajo: definiciones y ámbito de aplicación –​‘vino nuevo en odres viejos’”, capítulo ii, in aavv, Violencia y acoso en el trabajo: significado y alcance del Convenio n.º 190 oit en el Marco del Trabajo Decente (Ods 3, 5, 8 de la Agenda 2020), dir. Manuel Correa Carrasco, Maria Gema Quintero Lima, Dikinson, Madrid, 2021, 29–​59; “Brincat and others vs Malta: occupational health and safety under the guise of the rights to life and to respect for private and family life (European Court of Human Rights, 60908/​11, 62110/​11, 62129/​11, 62312/​11 and 62338/​11)”, in aavv, Labour Law and Social Rights in Europe: the Jurisprudence of the International Courts. Selected Judgements, coord. S. Bellomo, N. Gundt, M. Laga, J. M. Miranda Boto, Gdansk University Press, Gdansk, 2017, 133–​143; “Comments on mobbing and suicide at the workplace under Portuguese legal framework and case law –​can damages be repaired under occupational contingencies’ schemes?”, Psychosocial Risks in Labor and Social Security Law . A comparative legal overview from Europe, North America, Australia and Japan, edited by Löic Lerouge, Springer Editions, Cham, 2017, 329–​344; “O arrojo do Comité Europeu dos Direitos Sociais na tutela da segurança e saúde no trabalho”, Lex Social, monographic number, vol. 7, 2017, 244–​265; “Les préjudices résultant du harcèlement moral, le suicide et les contingences professionnelles. État des lieux sur le cadre juridique et la jurisprudence au Portugal”, in Risques psychosociaux en droit social. Approche juridique comparée France/​Europe/​Canada/​Japan, dir. Löic Lerouge, Dalloz, Paris, 2014, 266–​281. Email : [email protected] Cristina Sâmboan is a lawyer, definitive member of the Bucharest Bar Association since 1997, and lecturer in Labour law and EU law at artifex University of Bucharest. She graduated the Law Faculty of the Bucharest University. She earned her PhD in Labour Law from the Bucharest University of Economic Studies (ase) in 2016 and she holds a master degree in International Relations from the Romanian National School of Political and Administrative Studies (snspa) and a master degree in International Human Rights Law from the University of Nantes. She is a member of the National Union of the Experts in Labour Legislation of Romania (unelm) since 2017 and a member of the Romanian section of the Academic Network on the European Social Charter and Social Rights since

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2018. She is the author of several articles and studies published by scientific journals in her professional field of interest. The issue concerning the applicability of the European Social Charter (esc) by national courts can be defined as knowing whether and how domestic courts can or should apply the provisions of the esc in the disputes they have to settle. Ioana Nely Militaru is EU law Professor at the Bucharest University of Economic Studies –​Law Department. She is the author of several books, papers and studies published by scientific journals in her professional field of interest. Robert Tabaszewski is a graduate of the Faculty of Political Science of the Maria Curie-​Sklodowska University. Following his postgraduate studies in international and national law at the Faculty of Law of the John Paul ii Catholic University of Lublin (Poland), he obtained his PhD from the same university. He is an Associate Professor at the Law School of the John Paul ii Catholic University of Lublin, where he teaches Human Rights Law, Health Law and Security Law. He has authored 12 books. His areas of specialization, scholarship and litigation include health law and bioethics, international law, international security, human rights and democracy, and public law. He has been a visiting professor at the Faculty of Law of the Aldo Moro in Bari, Faculty of Law of the Rijksuniversiteit in Groningen, Faculty of Law of the Charles University in Prague, Faculty of Law of the International University of Sarajevo, Faculty of Law of the Aleksandër Xhuvani University of Elbasan and Nanovic Institute of the University of Notre Dame, USA. He is an Adjunct Secretary of the International Council of Jurists –​ European Division. In 2018, he has completed an internship in the President’s Office of the European Parliament in Brussels (EU). Email: [email protected]

Preambles Giovanni Guiglia Preamble of the Revised Social Charter of 1996 “The governments signatory hereto, being members of the Council of Europe, Considering that the aim of the Council of Europe is the achievement of greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and of facilitating their economic and social progress, in particular by the maintenance and further realisation of human rights and fundamental freedoms; Considering that in the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950, and the Protocols thereto, the member States of the Council of Europe agreed to secure to their populations the civil and political rights and freedoms therein specified; Considering that in the European Social Charter opened for signature in Turin on 18 October 1961 and the Protocols thereto, the member States of the Council of Europe agreed to secure to their populations the social rights specified therein in order to improve their standard of living and their social well-​being; Recalling that the Ministerial Conference on Human Rights held in Rome on 5 November 1990 stressed the need, on the one hand, to preserve the indivisible nature of all human rights, be they civil, political, economic, social or cultural and, on the other hand, to give the European Social Charter fresh impetus; Resolved, as was decided during the Ministerial Conference held in Turin on 21 and 22 October 1991, to update and adapt the substantive contents of the Charter in order to take account in particular of the fundamental social changes which have occurred since the text was adopted; Recognising the advantage of embodying in a Revised Charter, designed progressively to take the place of the European Social Charter, the rights guaranteed by the Charter as amended, the rights guaranteed by the Additional Protocol of 1988 and to add new rights, Have agreed as follows:” Preamble of 1961 European Social Charter “The governments signatory hereto, being members of the Council of Europe,

© Koninklijke Brill NV,

2 Guiglia Considering that the aim of the Council of Europe is the achievement of greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and of facilitating their economic and social progress, in particular by the maintenance and further realisation of human rights and fundamental freedoms; Considering that in the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4th November 1950, and the Protocol thereto signed at Paris on 20th March 1952, the member States of the Council of Europe agreed to secure to their populations the civil and political rights and freedoms therein specified; Considering that the enjoyment of social rights should be secured without discrimination on grounds of race, colour, sex, religion, political opinion, national extraction or social origin; Being resolved to make every effort in common to improve the standard of living and to promote the social well being of both their urban and rural populations by means of appropriate institutions and action, Have agreed as follows:” Preamble of the Additional Protocol to the European Social Charter of 1988 “The member States of the Council of Europe signatory hereto, Resolved to take new measures to extend the protection of the social and economic rights guaranteed by the European Social Charter, opened for signature in Turin on 18 October 1961 (hereinafter referred to as “the Charter”), Have agreed as follows:” Preamble of the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints of 1995 “The member States of the Council of Europe, signatories to this Protocol to the European Social Charter, opened for signature in Turin on 18 October 1961 (hereinafter referred to as "the Charter"), Resolved to take new measures to improve the effective enforcement of the social rights guaranteed by the Charter; Considering that this aim could be achieved in particular by the establishment of a collective complaints procedure, which, inter alia, would strengthen the participation of management and labour and of non-​governmental organisations, Have agreed as follows:” The preamble of European Social Charter, as drafted in the Treaty open for signature on October 18th, 1961, in Turin is without any doubt and inextricably

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linked to the preamble of each of the other’s treaty-​based instruments that, throughout the years, have amended and integrated the original text. Such amendments have been carried out with the aim of widening and improving the system of protection granted in such treaty-​based context. The preambles of the Additional Protocol of 1988, the Additional Protocol of 1995 and the preamble of the European Social Charter as revised in 1996. The second, introduced the system of collective complaints, while the latter progressively substituted the European Social Charter of 1961, are particularly worth of attention. Before delving into the analysis of the content of these preambles, it should be born in mind that the scholarship has widely debated on the legal effectiveness of the preambles of international treaties.1 While participating in such a discussion, would be interesting on a theoretical sphere, it would nonetheless result in a redundant exercise. Indeed, it would not be possible to determine a priori the legal effectiveness of the principles contained in a preamble without verifying first its concrete application.2 Therefore, after having analysed the text of such preambles, it would be more productive verifying whether the practice –​on the interpretation and on the application of these instruments3 –​ highlights any data that could then be translated into the theoretical and into the normative context. Nevertheless, in both the legal literature4 and in the manuals of international law5 the opinion of those who deny any legal value to the preamble of international treaties is still widespread. The international

1 Cf., in particular, Paul You, Le Préambule des Traités Internationaux, Fribourg, Librairie de l’Université, 1941, spec. pp. 11 ff. and pp. 42 ff.; Ludwig Dischler, “Präambel”, in Karl Strupp and Hans-​Jürgen Schlochauer (eds.), Wörterbuch des Völkerrechts, Bd. 2, Berlin, De Gruyter, 1961, pp. 790–​791; Hans-​Dietrich Treviranus, “Preamble”, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. iii, Amsterdam, Elsevier, 1997, pp. 1097–​1098; Eric Suy, “Le Préambule”, in Emile Yakpo and Tahar Boumedra (eds.), Liber Amicorum Judge Mohammed Bedjaoui, The Hague, Kluwer Law International, 1999, pp. 253 ff.; Richard K. Gardiner, Treaty Interpretation, Oxford, oup, 2nd ed., 2015, spec. pp. 205–​206. 2 See also ex multis, Eduardo Jiménez De Aréchaga, Derecho Constitucional de las Naciones Unidas. Comentario teórico-​ práctico de la Carta, Madrid, Escuela de Funcionarios Internacionales, 1958, p. 32; José Antonio Corriente Córdoba, Valoración jurídica de los preámbulos de los Tratados Internacionales, Pamplona, Eunsa, 1973, pp. 16–​17 and p. 63. 3 I am referring to the successive practice of States Parties and to the practice resulting from the activity of the organ that exercises control over the respect and application of the instruments at hand, which is the European Committee of Social Rights (ecsr). 4 Many authors of the last century have denied the legal value of the preambles of international treaties, see in particular Raoul Genet, Traité de Diplomatie et de Droit Diplomatique, Tome iii, Paris, Pedone, 1932, p. 383. 5 Cf., ex multis, Nguyen Quoc Dinh, Patrick Daillier, Alain Pellet, Droit international public, 7e éd., Paris, l.g.d.j., 2002, p. 131.

4 Guiglia jurisprudence6 and its practice move instead in the opposite direction,7 especially when it comes to the importance of treaties’ preambles in the process of 6 In this context, since the European Social Charter is considered to be the pendant of the echr, and given that both treaties are fundamental instruments of the Council of Europe and, that they both contain a preamble, it is worth reminding that, thanks to the jurisprudence of ECtHR, the preamble of the echr, especially with reference to the principle of the “rule of law”, that it has acquired a specific normative value therefore not only an ­interpretative, potentially expansive. Cf., in favour of this thesis according to which the “prééminence du droit”(primacy of law), which is the “rule of law”, is a “principe fondamental”(fundamental principle) and also a “principe substantiel”(substantial principle): Mouloud Boumghar, Une approche de la notion de principe dans le système de la Convention européenne des droits de l’homme, Paris, Pedone, 2010, pp. 195 ff.; Xavier Souvignet, La prééminence du droit dans le droit de la Convention européenne des droits de l’Homme, Bruxelles, Bruylant, 2012, spec. pp. 133 ff. However, there are various positions on the subject; cf., ex multis, Patrick Wachsmann, “La prééminence du droit dans la jurisprudence de la Cour Edh”, in Jean-​François Flauss, Patrick Wachsmann, Le droit des organisations internationales. Recueil d’études à la mémoire de Jacques Schwob, Bruxelles, Bruylant, 1997, pp. 241–​285; Serhiy Holovaty, The Rule of Law, Kiev, Phoenix Publishing House, 2006; Robert McCorquodale (ed.), The Rule of Law in International and Comparative Context, London, British Institute of International and Comparative Law, 2010. See also: cdl-​a d(2011)003rev-​e, Report on the rule of law –​Adopted by the Venice Commission at its 86th plenary session (Venice, 25–​26 March 2011), pp. 5–​ 6, at: https://​www.ven​ice.coe.int/​webfo​rms/​docume​nts/​defa​ult.aspx?pdff​ile =​CDL-​AD(2011)003​rev-​e. With reference to the content and to the legal value of the preamble of the echr, see also: Theo Van Boven, “Préambule”, in Louis-​Edmond Pettiti, Emmanuel Decaux, Pierre-​ Henri Imbert (dir.), La Convention européenne des droits de l’homme. Commentaire article par article, 2e éd., Paris, Economica, 1999, pp. 125–​134 ; Giovanni Conso, “Preambolo”, in Sergio Bartole, Benedetto Conforti, Guido Raimondi (a cura di), Commentario alla Convenzione Europea per la tutela dei diritti dell’uomo e delle libertà fondamentali, Padova, cedam, 2001, pp. 5–​21; William A. Schabas, “Preamble”, in ID., The European Convention on Human Rights, A Commentary, Oxford, oup, 2015, pp. 53–​83, spec. pp. 71–​72 in relation to the “Rule of Law”; Javier García Roca, “The Preamble, The Convention’s Hermeneutic Context: A Constitutional Instrument of European Public Order”, in Javier García Roca, Pablo Santolaya (eds.), Europe of Rights: A Compendium on the European Convention of Human Rights, Leiden-​ Boston, Martinus Nijhoff, 2012, pp. 1–​25. 7 For example, in the case regarding the citizens of the United States of America in Morocco, where France and the US had opposing views, The International Court of Justice (icj) noted that the protection of the equality of treatment was included in the preamble of Final Act of the Conference of Algeciras of April 7th, 1906 and concluded that, “Considered in the light of these circumstances, it seems clear that the principle was intended to be of a binding character and not merely an empty phrase”. (Cf. icj, Judgment of August 27th 1952, Rights of Nationals of the United States of America in Morocco (France v. United States of America), p. 184, at: https://​www.icj-​cij.org/​pub​lic/​files/​case-​rela​ted/​11/​011-​19520​827-​JUD-​01-​00-​EN .pdf). On this judgement, see also Makane Moïse Mbengue, “The Notion of Preamble”, in Rüdiger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, Oxford, oup, 2008, at: https://​arch​ive-​ouve​rte. unige.ch/​unige:56190. Moreover, the Court noted as well that the preamble or the specific clause contained in it, could acquire a mandatory value by virtue of the customary process of law formation. The “Martens Clause”, as included in

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interpretation, which will be addressed shortly.8 For the purpose of this analysis, is equally useful to examine the activity of the organ that exercises control over the respect and the application of the said instruments by States Parties, which is the European Committee of Social Rights (ecsr). By looking at the activity of the ecsr it will be possible to evaluate whether the theories that usually deny any legal value to the preambles are also reflected, in its conclusions and in its decisions, thanks also to its interpretative observations,9 or not. In this way, it will also be possible to verify whether those theories that attribute to the preamble of an international instrument a self-​standing legal the preamble of the Hague Convention of 1899, concerning the law and customs of land war, constitute a good evidence in this respect. 8 The increased consideration on the part of international judges, in particular those of the icj, given to the preambles through their activity of interpretation; has at length been signalled by the scholarship cf. Paul You, Le Préambule des Traités, cit., pp. 17–​19. Such legal trend has been confirmed throughout the time. See also the Judgment mentioned in this text of August 27th 1952, Rights of Nationals of the United States of America in Morocco, cit.; icj, Judgment of 17 December 2002, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), p. 625, spec. pp. 652 and 661, at: https://​www.icj-​cij.org/​pub​lic/​files/​case-​rela​ ted/​102/​102-​20021​217-​JUD-​01-​00-​EN.pdf; icj, Judgment of 19 November 2012, Territorial and Maritime Dispute (Nicaragua v. Colombia), p. 624, spec. p. 669, at: https://​www.icj-​cij.org/​pub​ lic/​files/​case-​rela​ted/​124/​124-​20121​119-​JUD-​01-​00-​EN.pdf. It should also be noted that the icj in its Judgment of 12 November 1991, Arbitral Award of 31 July 1989 (Guinea-​Bissau v. Senegal), p. 53, spec. pp. 72–​73, at: https://​www.icj-​cij.org/​pub​lic/​files/​case-​rela​ted/​82/​082-​19911​112 -​JUD-​01-​00-​EN.pdf, did not recognise the prevalence of the preamble on the act under consideration, notwithstanding its badly redacted provision. An interesting discussion (critique) on these cases is contained in Max H. Hulme, “Preambles in Treaty Interpretation”, University of Pennsylvania Law Review, Vol. 164, 2016, pp. 1324–​1330, at: https://​scho​lars​hip.law.upenn .edu/​cgi/​view​cont​ent.cgi?arti​cle=​9527&cont​ext=​penn​_​law​_​rev​iew. See also: Permanent Court of International Justice (pcij), Advisory Opinion of 12 August 1922 (including the text of the declaration of Judge Weiss), Competence of the ilo in regard to International Regulation of the Conditions of the Labour of Persons Employed in Agriculture, series B, No. 2, pp. 36–​41, at: https://​www.icj-​cij.org/​pub​lic/​files/​perman​ent-​court-​of-​intern​atio​nal-​just​ ice/​seri​e_​B/​B_​02/​Competence_​OIT_​A​gric​ultu​re_​A​vis_​cons​ulta​tif.pdf; International Labour Organization (ilo), Report of the Committee on Maternity Protection, Provisional Record No. 20, Eighty-​eighth Session, Geneva, 2000, § 68, at: https://​www.ilo.org/​pub​lic/​engl​ish /​standa​rds/​relm/​ilc/​ilc88/​pdf/​pr-​20.pdf, in which the Representative of the Legal Adviser of the International Labour Office affirms that: “The Preamble set the context and circumstances in which the Convention was adopted and formed part of the general context. (…) The Preamble would only be resorted to in the final analysis in accordance with the Vienna Convention on the Law of Treaties”. 9 These are the three main documents that characterise the activity of the ecsr: a) the conclusions of the States’ periodic report, in which the domestic norms and the applicative practice of the Charter are taken into consideration b) the decisions on the admissibility of collective complaints; c) the interpretative observations contained in the general introduction that open the reports cycle.

6 Guiglia value10 –​specifically with reference to its capacity to fill the emerging gaps in the operative part of treaties, by integrating clarifying its meaning through the use of complementary norms11 –​are reflected in the application and in the interpretation of the European Social Charter of 1961 and in the Charter as revised in 1996, as well as its Protocols. Nonetheless, experts agree on denying to the preambles of international instruments primacy over contrasting norms contained their operative part.12 In any case, there can be little doubt around the crucial role played by the preamble of the European Social Charter on an interpretative level, including both the preamble of the Charter as amended in 1996 as well as of the ones that precede the operative parts of two of its three Protocols. This is possible thanks to Article 31 of the Vienna Convention on the Law of the Treaties13 of 1969 which reads “The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes (…)”. In other words, in order to determine the meaning attributable to a specific provision of treaty, the analysis of its entire text, including its preamble14 cannot be transcended. 10

On this respect it is essential to look at the work of Paul You, Le Préambule des Traités, cit., p. 140, according to whom, in particular, “(…) un engagement plus ou moins général inséré dans le préambule reste un engagement. Il n’y a pas lieu de nier sa force obligatoire pour la seule raison qu’il est dans le préambule et non dans le dispositif”; Paul You, “L’interprétation des traités et le rôle du préambule dans cette interprétation”, Revue de droit international, de sciences diplomatiques, politiques et sociales, 1942, Tome ii, pp. 22–​45. 11 See, in particular, Georges Scelle, Précis de droit des gens : principes et systématique, Vol. ii, Paris, Sirey, 1934, p. 464 ; Mustafa Kamil Yasseen, “L’interprétation des traités d’après la Convention de Vienne sur le droit des traités”, Collected Courses of the Hague Academy of International Law, 1976-​i ii, Vol. 151, pp. 1–​114, spec. p. 35; Charles Rousseau, Droit international public, Tome i, Paris, Sirey, 1970, p. 87. 12 See, ex multis, Mustafa Kamil Yasseen, L’interprétation des traités, cit., p. 35, e Paul You, Le Préambule des Traités, cit., p. 16, whom supports the idea that an article of a treaty that contradicts its preamble gives rise to “(…) une exception particulière à l’application de la règle ou de l’idée générale inscrite dans le préambule”. and that “On pourra appliquer ici la règle a contrario”. In turn, José Antonio Corriente Córdoba, Valoración jurídica de los preámbulos, cit., p. 29, justifies the primacy of the operative part of the treaty over its preamble due to its recognition on the same as “lex specialis”, which is “como excepción al régimen general del tratado”. 13 Cf., among the numerous commentaries dedicated to such treaty, it is worth of note the work of Oliver Dörr and Kirsten Schmalenbach (eds.), Vienna Convention on the Law of Treaties, Berlin, Springer, 2nd ed., 2018. 14 Long time before the adoption of the Vienna Conventions on the Law of the Treaties of 1969 the use and the value of the preambles on the interpretation of international instruments was supported by distinguished scholars; cf., among many others, Ludwik

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Articles 31 and 32 of such Convention, are unanimously considered to be customary international law.15 These articles indicate that every treaty must be interpreted according to the objective16 method, in good faith, and according to the ordinary meaning to be attributed to its words, in its context and within the scope of the treaty (Article 31, paragraph 1).17 This Article points out, inter alia, that a term can be also interpreted according to a particular meaning, if such a will emerged from the intention of the parties (Article 31, paragraph 4).18 According to the same Article, in addition to the context in which the treaty was drafted, it is also necessary to consider other factors in such analysis, such as: any further agreement among the parties on the interpretation of the treaty; every other successive practice followed by the parties in the application of the treaty (Article 31, paragraph 3). The preparatory work and the circumstances in which the treaty was drafted are also considered to be complementary means of interpretation (Article 32). The aim of this provision is to clarify any ambiguous or unclear meanings of the norms19 of a treaty. Indeed, the preparatory work represents a useful tool of interpretation, especially if the preambles contain sentences or expressions that can be relevant in the practice, in order not to attribute to them a merely moral or exhortative value.

Ehrlich, “L’interprétation des traités”, Collected Courses of the Hague Academy of International Law, 1928, Vol. 24, pp. 100 ff.; Charles Dupuis, “Règles générales du droit de la paix”, Collected Courses of the Hague Academy of International Law, 1930, Vol. 32, p. 79 ; Antoine-​F. Frangulis, Théorie et pratique des traités internationaux, Paris, Académie Diplomatique Internationale, 1934, p. 109. Cf. also Yearbook of the International Law Commission, 1966, Vol. ii, spec. p. 118, at: https://​legal.un.org/​ilc/​publi​cati​ons/​yearbo​oks /​engl​ish/​ilc_​1966​_​v2.pdf. 15 Therefore, they are binding also for the States Parties to a Treaty that have not ratified the Convention at hand, such as France. Cf., ex multis, Dominique Carreau and Fabrizio Marrella, Droit international, 11e éd., Paris, Pedone, 2012, § 20, p. 152. 16 Cf., ex plurimis, Antoine Favre, “L’interprétation objectiviste des traités internationaux”, Annuaire Suisse de Droit International, Vol. xvii, 1960, pp. 75–​98. 17 On the interpretation of the treaties, ex plurimis, cf. Ludwik Ehrlich, L’interprétation des traités, cit., pp. 1–​143; Richard K. Gardiner, Treaty Interpretation, cit. 18 Cf., ex multis, Eirik Bjorge, “The Vienna Rules, Evolutionary Interpretation, and the Intentions of the Parties”, in Andrea Bianchi, Daniel Peat, Matthew Windsor (eds.), Interpretation in International Law, Oxford, oup, 2015, pp. 189–​204. 19 Cf. Luigi Sbolci, “Supplementary Means of Interpretation”, in Enzo Cannizzaro (ed.), The Law of Treaties Beyond the Vienna Convention, Oxford, oup, 2011, pp. 145–​163.

8 Guiglia i

The Preamble in the Preparatory Work of the European Social Charter

The preparatory work of the European Social Charter, open for signature in 1961, which started even in 1953, need to be analysed in light of what had been said in previous occasions. In particular, it comes out from the first three volumes of the five in which they were collected and published, that in the first project of such instrument, elaborated by the Commission on the Social Issues of the Consultative Assembly of the Council of Europe and presented in October 1955 (doc. 403), the title of the first part was “Preamble”, in order to repeatedly reiterate the mere moral relevance of this part. The Commission itself was keen to clarify that the preamble should not have been included as an integral part of the instrument in the process of being drafted. The question of its efficacy was addressed in the following way: “The intention of this section is not quite certain. Are these clauses binding commitments or simply a declaration of principles? If the former, the parties may decline to adopt the text: if the latter, the purpose is to express the underlying Idea, for which a preamble would be more appropriate”. (Vol. iii, p. 173). After all, such a question was more than justified, if the tenor of the other fifteen paragraphs that composed Part 1 of the 1955 project (Doc. 403) –​as already mentioned, defined as “Preamble” –​were to be taken into account. In it, the principles, the objectives and the political will, emerge diffusely20 in such a way as to anticipate the realisation in States Parties of an economic and social model certainly alternative to the one then predominant within the Soviet systems as well as completely separated from the one realised in Europe during the nineteenth-​century liberal period. In this perspective, in my opinion, some of its paragraphs are particularly relevant. Indeed, paragraph 3, states: “The High Contracting Parties regard economic policy not as an end in itself, but as means of attaining social 20 Hans Wiebringhaus, “La Charte sociale européenne”, Annuaire Français De Droit International, Vol. 9, 1963, pp. 709–​721, is among the commentators that have highlighted the peculiarity of the “policies” of the project and of the preamble of the Charter, elaborated by the Commission on social questions of 1955 expressed his view in this way: “(…) un projet de Charte qui se distinguait par des dispositions allant fort loin dans la reconnaissance des droits sociaux et économiques. C’est ainsi qu’il prévoyait, par exemple, le droit de l’ouvrier de prendre sa part dans la direction et dans les bénéfices d’une entreprise, aussi bien qu’une garantie des prestations sociales contre les conséquences des fluctuations monétaires. Par ailleurs, le projet préconisait la création d’un Conseil économique et social pour les États européens, chargé du contrôle de l’application de la Charte”. Of the same author are other works relative to the period following the adoption of the Charter; cf. p. 709, note 2.

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objectives, which are defined in terms of the moral and spiritual values inherent in the common heritage of the European peoples”. And in paragraph 7 it is commanded that: “The High Contracting Parties recognise it as one of the conditions for the development of the human personality that workers should have a share in the fruits of their labours, particularly by participation in the profits of the undertaking by which they are employed”. In my opinion equally relevant, is the content of paragraph 9, if it was to be considered in light of the preamble of the Charter in force at the moment:21 “The High Contracting Parties are opposed to all forms of discrimination on grounds of sex, race, colour, language, religion, property, national or social origin, or political or other opinions”. This is the so-​called “non-​discrimination clause” that, as will be clarified in the next paragraphs, has been –​and still is –​of outstanding importance within this protection system. By following the logical progression of the preamble, paragraph 14 stands out. Notwithstanding its collocation in the preamble, had this paragraph made it to Charter, it would have without any doubts, contributed to increase the efficacy of the preamble beyond the level of the policies involved: “The High Contracting Parties will therefore further develop their co-​operation in social and economic matters, and, in particular, will harmonise their social legislation and practice at the highest level attainable”. With, the reviews and amendments of 1956, to the initial project of the Commission on Social Issues, in light of the remarks made by the Commission on Economic Issues, the term “Preamble”, initially assigned to the whole Part 1, disappeared and was replaced by “Principles and objectives of social policy” (Doc. 488). Due the notorious hesitancy on the legal efficacy of the preambles, that emerged during the preparatory work of the Charter, at the time, the lack of any reference to a preamble in the context of the same Charter could have assumed a particular meaning. No longer identified as preamble and inserted in the operative part of the treaty, although titled to principles and objectives of social policy, as a matter of facts this first part could have foreshadowed a major efficacy, at least on an interpretative level. In the end, it still included fifteen paragraphs. Although mitigated compared to the initial project, the ideal and political content was still very emphasised. Nonetheless, in the same year more changes were made. Once the project was handed to the General Affairs Commission, in turn, this Commission proposed to rename the Charter using the denomination “European Convention 21

The third “Considering” of the esc states: “Considering that the enjoyment of social rights should be secured without discrimination on grounds of race, colour, sex, religion, political opinion, national extraction or social origin”.

10 Guiglia on Social and Economic Rights”. This was nonetheless the title occasionally proposed by the Committee of the Ministers. The text “Draft European Convention on Social and Economic Rights”, of the General Affairs Commission, jointly elaborated in collaboration with the two mentioned Commissions, is based on its predecessors and was attached to the recommendation project that such Commission directed to the Assembly (Doc. 536). In this version the idea of a preamble came back and was explicitly dedicated to the “Principles and Objectives of Social Policy”, while Part 1, was specifically named after the “Social and Economics Rights” (Vol. iii, pp. 535 ff., spec. p. 537). This new distinction was intentional, or in the words of rapporteur Lujo Toncic-​Sorin, nominated by the General Affairs Commission, in an address to the Assembly: “The division into a general Preamble and a more specific Part 1 is intentional, because there is a general agreement by all about the principles expressed in the Preamble but there are many different opinions on the specific rights mentioned in Part 1. The scope of this latter part has been slightly modified” (Vol. iii, p. 576). The text of the project, attached to the recommendation addressed to the Assembly is then retaken in the annex to the Recommendation 104, which the Assembly in turn addresses to the Committee of Ministers (Vol. iii, pp. 645 ff.). It is particularly relevant that in these documents the preamble is still mostly identical to the one included in the 1955 project (Doc. 403). From the perspective of the objectives and of the social policy principles to be pursued –​as already mentioned –​to the social model it intended to shape, this project was very ambitious. Between 1956 and 1957, the content of the Preamble changed dramatically. These changes were operated by the Working Group entrusted with the preparation of the drafts to be presented to the Social Committee. This organ was mainly composed of government officials and had been originally created by the Committee of Ministers with the aim of elaborating the Charter to be presented to the first. The content of the preamble presented in this version was significantly different to the previous version, since the Working Group decided to base its version on the version presented by the United Kingdom’s delegation22 (Doc. ce/​Soc (56) 7), instead of on the one drafted by the Secretariat of the Council of Europe (Doc. ce/​Soc/​w p ii (57) i). In this version the preamble was dramatically downsized, since the British version was only made of three Considering, that coincided with the first and with the second Considering of the preamble in force in the 1961 Charter and to its final paragraph. The non-​ discrimination clause is instead completely erased. This clause was originally 22 Cf. Collected “Travaux préparatoires”, Vol. iv, p. 210 and pp. 230–​231.

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included in the text of the Charter and then moved to the third Considering of the preamble currently in force. The text of the preamble elaborated by the Social Committee and its Working Group, included in the information document drafted by the Social Affairs Division (31 October 1957-​Doc. ce/​Soc (57) 19) was therefore identical to the British version and did not undergo any changes even after the revision operated in November of the same year by the Legal Service of the Secretariat of the Council of Europe.23 The text of the preamble, included in the project presented by the Social Committee to the Committee of Ministers in December 1957, continued to be substantially identical to the British version, on which, as already mentioned it was based on.24 In 1958 the Social Committee presented its report to the Committee of Ministers (Doc. cm (58) 18). In this version of the preamble, the Social Committee did not operate any further amendments; it is therefore self-​evident that the choice to eliminate the non-​discrimination clause was made on the basis of an explicit indication of the Secretariat of the Council of Europe.25 Therefore, the Social Committee sharpened the text of the preamble (Doc. cm (58) 27), especially with reference to the Considering formulation. However, the “Considering” dedicated to the non-​discrimination clause, as opposed to the preamble of the 1961 Social Charter, was removed. Such gap is only incidentally noted during the Tripartite Conference organised by the ilo upon request of the Council of Europe and held in Strasbourg in December 1958.26 The non-​discrimination clause only reappeared during the drafting phase of the Charter of the Consultative Assembly. Indeed, the project presented by the Assembly to the Committee of Ministers in January 1959 (Doc. 927) still corresponded to the text of the Charter elaborated by the Social Committee. In the project finalised by the Assembly itself, in January 1960 (Doc. 32), located

23 Cf. ivi, p. 297. 24 Cf. ivi, p. 386. 25 Cf. Collected “Travaux préparatoires”, Vol. v, p. 39: “107. The Secretariat drew the attention of the Committee to the following clause which is included in the draft Charter appended to Recommendation 104 (1956) of the Assembly: ‘The H.C.P. are opposed to all forms of discrimination on grounds of sex, race, colour, language, religion, property, nationality, national or social origin, or political or other opinion.’ It was decided not to include such a clause, but to mention the question in the Report”. 26 Cf. Recueil des travaux préparatoires, Vol. v, p. 580: “64. Un membre travailleur (France) a regretté que la Charte ne contienne pas de dispositions interdisant de façon générale toute discrimination. À son avis, l’article 4, paragraphe 3, devrait an moins interdire toute discrimination fondée sur le sexe et ne se référer qu’à titre d’exemple au problème de la rémunération”. In the edition in English of the preparatory work p. 580 is missing.

12 Guiglia in the third Considering of the preamble, the non-​discrimination clause reappeared. Such clause had, inter alia, already been inserted in the version submitted by the Commission on Social Issues to the Assembly in September 1959 (Doc. 1035). It is worth noting that the text of the non-​discrimination clause elaborated in this phase is not identical to the one present in the preamble currently in force. The inclusion of such principle in the Charter fills the gap generated during the antecedent preparatory work. In doing so, it indirectly paved the way for its concrete application during the control activities of the European Committee on Social Rights over the respect of the Charter that, in so doing, paved the way for the successive inclusion of the principle in the revised version of the Charter. Overall, the text of the preamble of the 1961 Social Charter, considered in the context in which it is included, does not seem to leave much space for useful considerations that could support its legal efficacy. Specifically, the first two “Considering”, seem not to allow for specific conclusions in such direction. Indeed, they simply recall the existence of the echr, notably entrusted with the protection of the fundamental human rights and liberties, specifically civil and political rights, putting upon States Parties only a general objective to progress on an economic and social level, as it can be also already deducted from Article 1 of the Statute of the Council of Europe. However, if this first part of the preamble is read in light of its last sentence, which recalls the commitment of the Contracting States “(…) to make every effort in common to improve the standard of living and to promote the social well-​being of both their urban and rural populations by means of appropriate institutions and action”, from these few sentences is immediately possible to deduct two fundamental principles. Those are the basic principles on which to lay the foundations for the duty of States to progress and not to regress, in the definition of their economic and social policies and, above all, in the adoption of the relevant norms, that are necessary to realise them to the benefit of the effective enjoyment of the right enshrined in the Charter. The principles of progressiveness and non-​regression27 were already envisaged in essence in the preamble of the esc. They were then fully recognised in

27

It is well known that such principles have been included in the system of protection of United Nations for a long time. Indeed, the first paragraph of Article 2 of the International Covenant on Economic, Social and Cultural Rights that entered into force in 1976, explicitly envisages the principle of progressiveness while the principle of non-​regression is deduced by means of interpretation from the same provision. This allows to conclude that States Parties once achieved the minimum levels of protection concerning a specific right, are nonetheless bound to progressively continue in their effort to ensure their

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the interpretation and in the application of the preamble of the esc (rev) as will be dealt with in more details in the following text. Thanks to its literal tenor, the legal value of the third Considering –​as anticipated –​dedicated to the non-​discrimination principle emerges with clarity. This principle was added in the final phase of the preparatory work of the Charter, in it, it finally appeared a precise reference to the social rights, whose enjoyment, indeed, was expressly linked to the principle of non-​discrimination.28 Although, only inserted in the preamble of the Charter, that has been –​and still is –​possible to attribute to the same, a legal efficacy comparable to the one that derives from Article 14 of the echr.29 Such principle, in the interpretative dynamism of the ecsr has been intended as a truly “horizontal clause”. This clause is to be combined with the different provisions of the Charter that deal with the social rights with the aim of increasing its efficacy, as will be looked into more details later on. Nonetheless, in the esc there is not any provisions aimed at introducing the general principle of equality listed and combined with each of the social rights thereby recognised. The preparatory work shows repeated discussions and reflections on the equality of treatment within States Parties, between domestic and migrant workers as well as on the equality of treatment of the citizens

28 29

full and effective enjoyment. In such cases they are not only bound by an “obligation of means” or of “progressive attitude”, but also by a real “obligation of result” as it is possible to deduct from § 9 of the General Comment No. 3, adopted in 1990 by the Committee on Economic, Social and Cultural Rights (cescr): “The principal obligation of result reflected in article 2 (1) is to take steps ‘with a view to achieving progressively the full realization of the rights recognized’ in the Covenant. [… T]he fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content”. In this respect, it is worth noting that the most attentive scholarship has highlighted how the progressive character of the norms on the protection of social, economic and cultural rights does not exclude that the same might have mandatory efficacy allowing for an attentive syndicate to reasonableness on the balance States have to strike between the protection of such rights and their financial obligations; cf., in particular, María Magdalena Sepúlveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights, Antwerpen-​Oxford-​New York, Intersentia, 2003, spec. pp. 157 ff. The third “Considering” of the preamble at hand envisaged that: “(…) the enjoyment of social rights should be secured without discrimination on grounds of race, colour, sex, religion, political opinion, national extraction or social origin;”. See also article 14 echr definitely has a wider a scope compared to the preamble of the Social Charter of 1961 and from the point of view of the situations it aims at protecting, not only for a bigger number of reasons of possible discrimination that it lists, but also for the use in its operative part of the adverb “notamment” in its conclusive formula “ou toute autre situation”, that allow to consider it only as illustrative and non-​exhaustive list.

14 Guiglia of the Contracting States with respect to the right to social security. However, no reference is made to the principle of equality before the law, in such a way as to express its force before the law in relation to the advantageous positions derivable from the text of the Charter and, therefore, to a duty to grant such principle within the legal systems of States Parties. It is, inter alia, another of the limits that can be understood in light of the echr, whose esc, has been historically indicated as its pendant on the social rights sphere. Among other things, it should be borne in mind that its only with Protocol No. 12 that it was included in the system of the echr, thanks to the innovative efficacy of its preamble, “(…) the fundamental principle according to which all persons are equal before the law and are entitled to the equal protection of the law”, notoriously full of possible consequences for the benefit of the effective enjoyment of the rights enshrined in the respective domestic norms, within the States that have decided to ratify it. ii

The Preambles of the Additional Protocols of 1988 and 1995

Between 1961 and 1988 the Social Charter did not undergo any changes. The works for the adoption of an Additional Protocol that would widen the list of the economic and social rights worth of protection within the Council of Europe, date back to then years before, which is even before the Declarations of Human rights of April 27, 197830 was adopted. The preparatory work of such

30 Cf. Declaration on Human Rights, adopted by the Ministry of Foreign Affairs of the Member States of the Council of Europe on April 27, 1978, during the 62nd Session of the Committee of Ministers, at: https://​rm.coe.int/​09000​0168​0536​865. By virtue of such Declaration the Member States of the Council of Europe: “6. Recalling, moreover, that within the Council of Europe proposals are under consideration to extend the lists of rights of the individual to be protected by the European Convention on Human Rights and other relevant European conventions, including rights in the social, economic and cultural fields; 7. Noting in this respect the initial contribution that the European Social Charter has made in the field of social and economic rights and being prepared to consider the possibility of further enlarging in the framework of the Council of Europe the protection of those rights; (…) ii. Decide to give priority to the work undertaken in the Council of Europe of exploring the possibility of extending the lists of rights of the individual, notably rights in the social, economic and cultural fields, which should be protected by European conventions or any other appropriate means; iii. Resolve to play an active part in the protection and further realisation of human rights and fundamental freedoms including, in a wider concept, those in the social, economic and cultural fields, thus contributing to the strengthening of world peace and security and international co-​ operation as well as to the economic and social development of all peoples”.

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Protocol,31 that is indicated as sort of “extension” and update of the Charter of 1961, are not limited to its preamble. The preamble as a matter of facts, is extremely concise and makes just a rough reference to the decision of adding “new measures to extend the protection of the social and economic rights guaranteed by the European Social Charter”.32 While the Amending Protocol open for signature in 1991, in Turin, during the thirteenth anniversary of the Charter, did not include any preamble,33 the preamble of the Additional Protocol that in 1995 introduced and disciplined the procedure of collective complaints, although, extremely concise, opened up to some considerations. First of all, in this Protocol appeared an objective which, I think, signaled a further detachment, not only on a terminological level but also from the point of view of the ideals pursued, from the preamble of the Charter of 1961. In such Charter, as already mentioned, –​no reference is made to the protection of social rights, exception made for the formal acknowledgement of a right to enjoy a (general) principle of non-​discrimination. The objective of such Protocol is indeed: “(…) to take new measures to improve the effective enforcement of the social rights guaranteed by the Charter”.34 This is to be read in light of the preamble of the 1988 Protocol. This Protocol marks an evident progress towards the relaunch and the concrete application of the Charter. All the social rights, including those envisaged in the 1988 Protocol, are seen in the perspective of their efficacy. To a certain extent, such preamble marks a shift from a mere recognition and only formal protection of the existence of such rights, to their concrete realisation through the adoption of further control procedures, more efficiently and concretely operating. The (apparently) simple expressions of the preamble of the 1995 Protocol are susceptible of concretely reflecting in the control activity of the European Committee of Social Rights 31

The references to the preparatory works of the Protocol of 1988 are summarised in its Explanatory Report, available at: https://​rm.coe.int/​CoER​MPub​licC​ommo​nSea​rchS​ervi​ ces/​Dis​play​DCTM​Cont​ent?doc​umen​tId=​09000​0168​00cb​346. 32 Cf. Additional Protocol to the European Social Charter, European Treaty Series –​No. 128, at: https://​www.coe.int/​en/​web/​conv​enti​ons/​full-​list/​-​/​conv​enti​ons/​rms/​09000​0168​ 007a​84e. 33 This Protocol is of particular relevance. Its relevance is due to some of the amendments operated in the report procedures that States have to periodically submitted, in order to have the norms they have adopted and their relative practice of application checked, and for having anticipated an Additional Protocol project, relating to a collective complaints procedure, directed, indeed exercise a stricter and a more diffuse control over States. 34 Cf. Additional Protocol to the European Social Charter Providing for a System of Collective complaints, European Treaty Series –​No. 158, at: https://​www.coe.int/​it/​web/​conv​enti​ons /​full-​list/​-​/​conv​enti​ons/​rms/​09000​0168​007c​dad.

16 Guiglia and in its Protocols, which is indeed called upon assessing the norms and the applicative practices of the Charter and of its Protocols. The ecsr can –​and indeed does –​consider and investigate closely also the economic and social policy adopted by the Contracting States, in order to ensure their effective realisation as well as the concrete protection of the social rights protected within this treaty-​based Charter’s system. Secondly, the “Considering” that the preamble of the said Protocol dedicate to the introduction of the collective Complaints procedure, assumes –​in my opinion –​a meaning that goes beyond any formal presentation of a new control procedure. It supports not only an enhancement and an increase of the control instruments for the application of the Charter, but also a strengthening of participation of the subjects called upon to support the realisation of the social rights that it recognises. In this way, the control over the realisation of the objectives established in the Social Charter, and on the correct application on the part of the States, extends also to the parties and to the domestic and international Social Entities, that can be activated in synergy before the ecsr, and not anymore only within the report procedure submitted by the States. After all, the type of participation mentioned in the preamble, reminds the formal acts from which the preparatory work of the Charter of 1961 took inspiration. First, the Memorandum presented by the General Secretariat of the Council of Europe in 1953, pertaining the role of the Council itself within the social sphere (Doc. sg (53) 1), from which it is possible to deduce, indeed that, in accordance with democratic principles, the Governments must recognise the importance of the participation of all the competent entities for the elaboration of the social policy trough the most inclusive process of participation.35 Secondly, the proposals of the Consultative Assembly itself, that shortly after confirmed the same trend.36 This Protocol is therefore an essential element in the construction of the system of treaties based on the 1961 Charter as preconized from its inception. At the same time, by introducing the collective complaints procedure, jointly with the classic States’ report procedure, it represents an evident rationalisation of the democratic principle. In this way it operates both in the (progressive) phase of realisation of the social and economic policy and, on cases of persisting inaction on the part of the States that have accepted to be bound by the Charter both in its (continuous) phase of conforming their norms and in their practice of application, following the control of the ecsr. Thus,

35 Cf. Collected “Travaux préparatoires”, Vol. i, p. 6, § 11. 36 Cf. ivi, p. 46, § 5.

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the wider perspective of participation of the Social Entities and of the Non-​ Governmental Organisations in the control procedure based on collective complaints set as an objective also, a perceivable increase in the cohort of subjects that can initiate them. In this way, it managed to overcoming some States Parties’ hesitations while adopting anyway –​thanks to the ecsr –​an admissibility scrutiny that take into the highest consideration the scope that overwhelmingly imposed itself in the preamble of the Protocol of 1995: “to improve the effective enforcement of the social rights guaranteed by the Charter”. iii

Towards the Revision of the European Social Charter

The nineties of the past century surely mark a turning point in the elaboration of this conventional system. Only few years passed in between the amendment of the Protocol, open for signature in Turin in 1991, during the thirteenth anniversary of the Charter, and the Additional Protocol that –​as recently mentioned –​introduced the control system based on collective complaints. After a long period of stasis, silence and standstill, that lasted until the end of the eighties, the European Social Charter gained again the attention, in perspective of an increased consideration for social rights. The implosion of the Soviet economic and social model without any doubts contributed to create an increased sensitiveness towards the Charter. The Charter was conceived in the fifties in the middle of the “Cold War”, as pendant of the echr, in order to complete the democratic, economic and social, model to be put into contrast to the one in place in the Soviet Eastern bloc. The Charter included an alternative model to both the liberal tradition and to the “Real Socialism” and gained force precisely in the period in which the socialist-​communist model dissolved in both the Soviet Union and its satellites. Probably, it was not a mere coincidence that the relaunch of the Social Charter was boosted during an informal Conference of Ministers on Human Rights held in Rome in November 1990, just one year after the fall of the Berlin wall. The previously mentioned Protocols, jointly with the Social Charter as revised in 1996, constitute a tangible response to the need to provide to the States in the process of accessing the Council of Europe,37 after the break-​up 37

It is worth of note that the mentioned Interministerial informal Conference held in Rome in November 5th, 1990 and that Hungary accessed the Council of Europe November 6th of the same year, de facto paving the way to the majority of the States formerly part of the Soviet block and shortly after also to the ones of the former Yugoslavia. Poland accessed the Council of Europe in 1991; Bulgaria in 1992; Estonia, Lithuania and Slovenia

18 Guiglia from the Soviet Union, a social and economic model in line with the expectations of their populations. Indeed, in such countries was not enough to support only the rebirth of the Rule of law enriching it with civil and social rights as granted and recognised in the echr. It was also necessary to put in place conditions for the social and economic rights to reach the same levels of protection of the firsts and older rights. The indivisibility, the interdependency and the interconnection of the rights had to –​and, evidently, have to –​to be concretely reflected also in the treaty-​based system of the Council of Europe. After all, since the fifties of the past century the Council of Europe supported the need to dispose within its system of a complementary treaty-​based system, dedicated to the first and to the other human rights. The Council of Europe demonstrated to share the assumption according to which the civil and political rights make sense only if they are associated with the protection of all the others: social, cultural and, economic rights. In the end, this is what came out from the Declaration adopted at the end of the World Conference on Human Rights organised in Vienna by the United Nations. This was the first conference on human rights –​that took place in Vienna in 1993 –​to be held after the end of the Cold War. Indeed, the revision of the esc was held based on these ideals, and values. The revision work of the esc, led in 1996 to the adoption and to the opening for signature of the Social Charter which was indeed titled “revised”: esc (rev).38 iv

The Preamble of the European Social Charter Revised

The preamble of the esc (rev) mostly retraced the one of the esc. In it, the first “Considering”, was repeated just as it was, dedicated to the realisation of a tighter union among the member of the Council of Europe, with the aim of safeguarding and promoting the ideals and the principles that represent their common heritage and in order to favour their economic and social progress. In particular, through the protection and development of human rights and fundamental freedoms. Yet, the second “Considering”, exception made for a more

38

in 1993, with the Czech Republic, Slovakia and Romania; Latvia, Albania, Moldova, North Macedonia and Ukraine in 1995; Croatia in 1996, with Russia, before Georgia, Armenia, Azerbaijan, Bosnia and Herzegovina, Serbia and Montenegro, that instead all accessed throughout the successive decade. The short process that led to the adoption of the esc (rev) was traced, in particular in the Explanatory Report: https://​rm.coe.int/​CoER​MPub​licC​ommo​nSea​rchS​ervi​ces/​Dis​play​ DCTM​Cont​ent? documentId=​09000016800ccde4.

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general reference to Protocols of the echr, was substantially identical –​and, as a matter of facts of little use –​to the end of guaranteeing an effective protection of the social rights. The third “Considering” is instead completely different from the one inserted in the preamble of the esc. With the pretext of including the principle of non-​discrimination in an ad hoc Article in the operative part of the Treaty, which is Article E of the esc (rev), any reference to it in its preamble obviously vanished. Given the more general content of the preamble of the Charter of 1961, the third “Considering” is other than redundant. It was dedicated to the relevant affirmation according to which member States of the Council of Europe have convened to grant to their populations those social rights specified in treaty-​ based instruments considered in combination, in order to improve their life tenors and to promote their wellbeing. There is no doubt that the commitment that States undertook before their citizens, and at an international level, of protecting the Social Rights set forth in the Charter’s treaty-​based system, with the aim of improving their life tenor and their wellbeing, allowed the ecsr to verify whether their practice in their economic and social policies were coherent with this instrument. Therefore, the control activity of the ecsr was not only limited to the associated norms and the application practices, with respect to such rights and to the achievement of such objectives. By means of exercising control over them, the Committee was allowed to declare the non-​ conformity with the Charter every time they resulted unreasonably or disproportionally regressive, or in any case to be unreasonably compromising the level of well-​being achieved through the protection of one or more of the social rights set forth in the Charter. However, the lack of/​or insufficient information from the Contracting States, that would allow the ecsr to verify the effective protection of the rights as recognised in the system of protection enshrined in the Charter for the objectives indicated in its preamble which means for the effective improvement of the life tenors of their respective populations and for their wellbeing, could also constitute a violation within this system. Finally, it was also considered a violation of the Charter the ascertained inaction of States in rendering effective the social rights States are concretely bound to respect, having them ratified the Charter and its Protocols, starting from the preambles themselves. Once finished the list of “Considering”, the preamble of the esc (rev) continued, remembering the Conference of Ministers on human rights held in Rome in 1990, highlighting the need on the one hand to preserve the indivisible character of all of human rights: being them social, civil, political, cultural and economic and on the other hand, to give fresh air to the Charter. The clarification concerning the indivisibility of such rights, is not to be underestimated, at least

20 Guiglia at a hermeneutic level. As already pointed out, this aspect reflected the results of the World Conference on human rights held in Vienna in 1993. Indeed, it is clear that if one is to share the view of using the teleological method39 as means of interpretation of the texts that are included in the complex system of conventions, by combining this part of the preamble with the operative part of the Charter, as seen in light of Article 31 of the Vienna Convention on the Law of the Treaties of 1969, the result is a relevant reinforcement of its “useful effect”, that goes beyond a mere moral and exhortative value which in the past, resulted in a stigmatisation of the preambles of international instruments. The preamble concluded with the recognition of the need of updating and adapting the material content of the Charter, in order to include the fundamental social changes that happened at the moment of its adoption in 1961. It also took into consideration the need to add new sets of rights to the amended Charter in order to complete the updating process that started with the Additional Protocol of 1988. This Charter progressively substituted the Charter of 1961. The system of protection offered by the Charter and its Protocols allowed for both an evolutive interpretation in its operative part, with the aim of maximising the protection of the rights included this section, and for an extensive one that, combined with the teleological method interpretation (ut res magis valeat quam pereat), allowed for an adequate level of protection also for the new set of rights –​such as the rights on environmental protection –​that could be based on the ones already recognised in the treaties. v

The Preambles of the Charter and Its Protocols in the Practice of the European Committee of Social Rights

The Preambles in the Control Procedure over States’ Reports A After having analysed the preambles of European Social Charter of 1961 and its relative amendments, including the revised Charter of 1966, it will be useful to analyse the control activity operated by the organ that exercises control over the respect and the application of such treaties as applied by States Parties, which is the European Committee on Social Rights. The aim of this analysis is 39

To better understand its relevance, it is sufficient to remind of the work of Ervin Paul Hexner, “Teleological Interpretation of Basic Instruments of Public International Organizations”, in Salo Engel and Rudolf A. Métall (eds.), Law, State, and International Legal Order: Essays in Honor of Hans Kelsen, Knoxville, University of Tennessee Press, 1964, pp. 119–​138.

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to verify whether from its practice data emerge that can stimulate reflections on a theoretical and on a normative level. By following the chronological order of the conclusions adopted by the ecsr with respect to States periodic reports –​therefore as a result of the control procedure over the norms and the practice as adapted by States’ control –​some examples, emerge that can help clarify the value associated to the preambles. These examples emerge from the control procedure over the norms and States application of the Charter and its Protocols. First of all, we want to make reference to the Conclusions adopted by the 1977 Committee, within the framework of the v Control cycle, regarding the application in France of Article 5 of the esc, on freedom of trade union association. From this, it is possible to deduct that: “2. The committee also wished to know the reasons for the restrictions imposed on the right of foreign workers to assume managerial and administrative function in trade unions, so that it could weight this restriction against the requirements of the Charter, as embodied in the preamble and paragraph 5 of Part 1”.40 Although implicitly the non-​discrimination clause included in the preamble of the Charter of 1961 is evoked in combination with a provision of the same Charter. This clause allows the Committee to request clarifications to the State involved that, thanks to the ratification of such instrument, is bound to provide for a response to the Committee in the next report. In 1984, during the viii Control cycle, in reference to the application in Germany of Article 1, § 2, of the esc, for the protection of the rights of the worker in order to earn its living with a job freely undertaken, the Committee detects an erroneous interpretation of its previous Conclusions (vii Cycle) on the part of the State, highlighting that: “(…) the ‘right of the worker to earn his living in an occupation freely entered upon’ certainly does not confer upon any worker, whether in the public service or not, the right to employment of his choice regardless of his qualifications. Nevertheless, certain requirements are not admissible under the Charter, such as those based on race, colour, sex, political opinion, religion, etc. (see the preamble of the Charter). That is to say that the Charter does not prevent an employer from stipulating whatever qualifications he may wish, provided they do not take the form of requirements not admissible by the Charter (…)”.41 Therefore, from the case at hand, it clearly emerges a combination between the preamble of the esc, specifically of the non-​discrimination clause, jointly with the above-​mentioned provision. In my

40 Cf.: http://​hudoc.esc.coe.int/​eng/​?i=​V/​def/​FRA/​5//​EN. 41 Cf.: http://​hudoc.esc.coe.int/​eng/​?i=​VIII/​def/​DEU/​1/​2/​EN. Emphasis added.

22 Guiglia opinion, this does not represent, a mere example of how the preamble of the Charter assumed an interpretative value, but the affirmation of its legal efficacy itself in the practice, it is indeed only from the joint interpretation of the third “Considering” with the second paragraph of Article 1 that, the exact norm to bed respected can be deduced and applied in these cases.42 Continuing with the analysis of the Conclusions of the Committee, of particular relevance are those adopted in 1991, within the framework of Cycle xi-​2, on Ireland. Yet again, with reference to the application of Article 1, § 2, of the esc, the Committee recalls its jurisprudence having considered, inter alia, a number of norms aimed at allowing women to work during night-​time, on Sunday and on mines: “(…) according to which it regards ‘the principle of non-​discrimination on grounds of sex as well as on the other grounds enumerated in the Preamble, as basic’ but considers ‘that this principle should be applied without prejudice to measures designated to protect women in appropriate cases, when required’”.43 Such Conclusions are a clear expression of the dynamic interpretative method used by the Committee. The ecsr, has adopted this method of interpretation on many occasions. Thanks to this dynamic method of interpretation of 1961 was introduced in the Social Charter the technique of the so-​called “unequal right”, intended to bind to respecting implicitly the principle of non-​discrimination, as well as the principle of equality. On the one hand, in this way the most diverse forms of discrimination,44 including indirect45 ones, are prevented. On the other hand, norms of States 42

It is inter alia well known that with reference to its legal value and not only to its interpretative one deductible from the preamble of the echr, the scholarship is not unanimous. Cf., in particular, in favour of its legal and ontological value are, Mouloud Boumghar, Une approche de la notion de principe dans le système de la Convention européenne des droits de l’homme, cit., spec. pp. 195 ff. In the sense of adhering to the thesis of such author relatively to the principle of the rule of law, as enshrined in the preamble of the echr and read in light of the jurisprudence of the ECtHR, cf. Xavier Souvignet, La prééminence du droit dans le droit de la Convention européenne des droits de l’Homme, cit., spec. pp. 133 ff. 43 Cf.: http://​hudoc.esc.coe.int/​eng/​?i=​XI-​2/​def/​IRL/​1/​2/​EN. 44 Worth of mention is the analysis on the jurisprudence of the ecsr and of the ECtHR and of the European Court of Justice that have highlighted multiples and different notions of “direct discrimination”, “indirect discrimination”, “positive discrimination” and “reverse discrimination”. Cf., in particular, the exhaustive analysis of Manuela Brillat, Le principe de non-​discrimination à l’épreuve des rapports entre les droits européens, Bayonne, Institut Universitaire Varenne, 2015, spec. pp. 27–​139. 45 The analysis of the decisions of the ecsr highlights that it has been elaborated a concept of “indirect discrimination” as disjointed and overall, more articulated compared to the one that emerges from the jurisprudence of both the European Court of Human Rights and the European Court of Justice. In particular, the Committee has ascertained and sanctioned the indirect discrimination “systemic” (cf. ecsr, European Roma and

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Parties that cause phenomena of discrimination that contrasted both with the formal equality among individuals as recognised by the norm and with its substantial achievement, were removed. The ecsr deals again with Article 5 of the esc in France, within the framework of the Conclusions adopted in 2000 in relation to the Control cycle xv-​i . By means of reference to the ratione personae criteria, “The Committee notes that foreign nationals are ineligible for election to employment tribunals even if they are trade-​union representatives (Article L 513–​2 of the Labour Code). It notes that the reason is the principle that justice, which is a sovereign function of the state and a prerogative of national sovereignty, can only be exercised by nationals. The Committee considers that this exception to the general principle of non-​discrimination laid down in the Preamble to the Charter, is based on an objective and reasonable justification and is therefore acceptable under the terms of the Charter”.46 Drawing from these considerations of the Committee, can be clearly deduced the criteria employed to exclude a provision of the French Labour code that can be considered discriminatory in relation to the Social Charter. These criteria show that objective reasons and considerations of reasonableness represent further essential elements for the evaluation of the norms involved in the control activity of the Committee. The Committee went even further, by specifying-​and in my opinion, increasing as well –​the legal effect, not only the interpretative one, of the non-​discrimination clause as envisaged in the preamble of the esc. Another relevant example of the efficacy that the preamble of the esc has reached during the control activities of the Committee on the reports periodically submitted from the States Parties, is represented by the Conclusions adopted in 2005, during the Cycle xvii-​i , regarding the application of Article 1, § 2, of the Charter on the Aruba territory, that belongs to the Netherlands. The conclusion reads: “The Committee draws the Government’s attention to the scope of Article 1 § 2 of the Charter. In its view, compliance with this provision carries the implicit obligation for Contracting Parties to lay down in their legislation the prohibition of discrimination in employment. All grounds of discrimination mentioned in the Preamble to the Charter must be prohibited. The

Travellers Forum v. France, complaint No. 64/​2011, decision on the merits of 24 January 2012) considered that the lack or insufficient consideration of all the differences of treatment on the part of the States, as well as the absence of adequate measures to guarantee to all the subjects involved specific benefits and the effective access to them, amount to a subspecies of indirect discrimination: cf. ecsr, Centre on Housing Rights and Evictions (COHRE) v. Italy, complaint No. 58/​2009, decision on the merits of 25 June 2010. 46 Cf.: http://​hudoc.esc.coe.int/​eng/​?i=​XV-​1/​def/​FRA/​5//​EN. Emphasis added.

24 Guiglia discriminatory acts and provisions forbidden by this clause of the Charter are all those that may operate in the context of recruitment and in conditions of employment generally (including remuneration, training, promotion, transfer and dismissal)”.47 Notwithstanding its unquestionable hermeneutical value, the strength of the third Considering of the preamble emerges with clarity. This “Considering”, combined with the provision at hand, included in Part 2 of the esc, expresses all of its force in the juridical sphere. The Committee further lists meticulously to the State involved all the obligations it is bound to respect in order to comply with the application of the Article at hand,48 necessarily in combination with the non-​discrimination clause as inscribed in the preamble. In the same Conclusions of 2005, the Committee adopts a Statement of interpretation of Article 11 of esc, dedicated to the right to health, which reads: “In assessing whether the right to protection of health can be effectively exercised, the Committee pays particular attention to the situation of disadvantaged and vulnerable groups. Hence, it considers that any restrictions on this right must not be interpreted in such a way as to impede the effective exercise by these groups of the right to protection of health. This interpretation imposes itself because of the non-​discrimination requirement (Article E of the Revised Charter and Preamble of the 1961 Charter) in conjunction with the substantive rights of the Charter”.49 Yet again, the Committee reaffirms the legal value of the non-​discrimination clause included in the preamble of the esc, that is even mentioned in combination with Article E of the esc (rev), implicitly stating –​at least according to the ecsr –​that this clause enjoys its same legal power. It also clarifies that this clause is to be combined with all the ‘substantial’ rights as set off in the Charter itself, analogously to what happens in relation to Article E of the esc (rev). It is also worth noting that, as will be better pointed out shortly, by having a closer look at the decisions of the ecsr, within the framework of the collective complaints procedure, Article E of the esc (rev) has to be necessarily combined as well with another provision of the revised Charter, in order to produce its effect on a legal level, analogously to what–​usually but not necessarily happens50 –​in the echr system with respect to Article 14. The fact that the preamble of the esc –​or better to the non-​discrimination clause included in it –​was associated to Article E of the 47 Cf.: http://​hudoc.esc.coe.int/​eng/​?i=​XVII-​1/​def/​NLD​ABW/​1/​2/​EN. Emphasis added. 48 Ibid. 49 Cf.: http://​hudoc.esc.coe.int/​eng/​?i=​2005_​O​b_​1-​1/​Ob/​EN. Emphasis added. 50 Cf. european court of human rights, Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol No. 12 to the Convention, pp. 7–​8, at: https://​www.echr.coe.int/​Docume​nts/​Guide_​A​rt_​1​4_​Ar​t_​1_​Prot​ocol​_​12_​ENG.pdf.

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esc (rev), evidently contributed to equalise their efficacy in the legal sphere, beyond its doubtless hermeneutical value. The Preambles within the Collective Complaints’ Procedure B This analysis will now focus on the control activity exercised by the ecsr in relation to the collective complaints, submitted after the entry into force of Additional Protocol of 1995. This Protocol introduced its own procedure,51 combining it with the classic control procedure of the reports, periodically submitted by States Parties, which has been dealt with earlier in this chapter. In this framework, some of its decisions are particularly worth of attention. Following its logical progression, of particular relevance is the decision on the admissibility of the first collective complaint to the Committee, Complaint No. 1/​1998 submitted by the International Commission of Jurists (icj) against

51 The most recent and well documented study on this procedure is of Giuseppe Palmisano, “La procédure de réclamations collectives en tant qu’instrument de protection internationale des droits sociaux”, Revue Générale de Droit International Public, 2020, No. 3–​ 4, pp. 513–​ 563, at: http://​ped​one.info/​site/​wp-​cont​ent/​uplo​ads/​2021/​02 /​Vers​ion-​inter​net-​Num%C3%A9ro-​comp​let-​RGDIP-​2020-​3-​4.pdf. See also: Jean-​François Akandji-​Kombé, “L’application de la Charte sociale européenne: la mise en œuvre de la procédure de réclamations collectives”, Droit social, No. 9, 2000, pp. 888–​896; Robin R. Churcill and Urfan Khaliq, “The Collective complaints System of the European Social Charter: An Effective Mechanism for Ensuring Compliance with Economic and Social Rights?”, European Journal of International Law, 2004, Vol. 15, No. 3, 2004, pp. 417–​456, at: http://​www.ejil.org/​pdfs/​15/​3/​358.pdf; Gregor T. Chatton, “The Collective complaints Mechanism within the European Social Charter: Making Economic and Social Human Rights Really Matter”, in Samantha Besson, Michel Hottelier, Franz Werro (eds.), Human rights at the center/​Les droits de l’homme au centre, Zürich, Schulthess, 2006, pp. 103–​157; Jean-​François Akandji-​Kombé, “Les réclamations collectives dans le cadre de la Charte sociale européenne: bilan et perpectives”, L’Europe des Libertés, 2009, No. 28, pp. 11–​21; Holly Cullen, “The Collective complaints System of the European Social Charter: Interpretative Methods of the European Committee of Social Rights”, Human Rights Law Review, No. 9, 2009, pp. 61–​93; Aleksander Gadkowski, “Les réclamations collectives dans le système de la Charte sociale européenne”, Cahiers genevois et romands de sécurité sociale, No. 46, 2011, pp. 9–​61, at: https://​arch​ive-​ouve​rte.unige.ch/​unige:18493; Riccardo Priore, “Il sistema di controllo della Carta sociale europea: la procedura dei reclami collettivi”, in Marilisa D’Amico, Giovanni Guiglia, Benedetta Liberali (eds.), La Carta Sociale Europea e la tutela dei diritti sociali, Napoli, esi, 2013, pp. 99–​107; Riccardo Priore, “Les systèmes de contrôle de l’application de la Charte sociale européenne: la procedure de réclamations collectives”, in Marilisa D’Amico, Giovanni Guiglia (eds./​dir.), European Social Charter and the Challenges of the xxi Century/​La Charte Sociale Européenne et les défis du xxie siècle, Napoli, esi, 2014, pp. 159–​170; Luis Jimena Quesada, “Interdependence of the Reporting System and the Collective complaint Procedure: Indivisibility of Human Rights and Indivisibility of Guarantees”, ivi, pp. 143–​158.

26 Guiglia Portugal, with the aim of obtaining control over the declaration of non-​ compliance in the application of Article 7, § 1, of the 1961 Charter in such State. In my opinion, this is a relevant decision, since the State involved asked for a declaration of inadmissibility for such complaint, as it would have generated a useless proceeding contrary to the principles of the res judicata and of the ne bis in idem, being the object of the complaint a norm and a practice already examined by the ecsr during the Control cycle of xiii-​5 (1994–​1995), and having the Committee itself already adopted negative conclusions on this respect, followed by a recommendation from the Committee of Ministers of the Council of Europe. In other words, by following the reasoning adopted by the Government of Portugal, the collective complaints procedure would have been available to the parties only if it was based on new objections on the part of the complaining entity and was presented according to the provisions entered into force in the meantime, aimed at fixing the original declaration of non-​compliance and in order to comply with the consequent recommendation of the Committee of Ministers. In the complete opposite direction moved instead the ecsr, that reminded: “(…) that according to the wording of the Preamble to the Additional Protocol of 1995 the collective complaints procedure was established to improve the effective implementation of the social rights guaranteed by the Charter and to consolidate the participation of the social partners and non-​governmental organisations. (…) Neither the fact that the Committee had already examined this situation in the framework of the reporting system, nor the fact that it will examine it again during subsequent supervision cycles do not in themselves imply the inadmissibility of a collective complaint concerning the same provision of the Charter and the same Contracting Party”.52 Therefore, from the case at hand, it is clear that the Committee mentions the preamble of Additional Protocol of 1995 not only with the objective of supporting a teleological interpretation of the instrument it is a fundamental part of, which is to highlight its real objective, but also in order attribute to the whole collective complaints’ procedure legal efficacy. Had the Committee followed the reasoning of the Portuguese government, instead, such system would have been deprived of real effects in the practice, and lead to the failure of the main objective of the Protocol which is indeed: to favour the effective enjoyment of social rights within States Parties to the treaty-​based system of the Charter. In this framework, the preamble assumes in the reality a well different value, 52 Cf. ecsr, International Commission of Jurists (ICJ) v. Portugal, complaint No. 1/​1998, decision on admissibility of 10 March 1999, § 10, at: http://​hudoc.esc.coe.int/​eng/​?i=​cc-​01 -​1998-​dadm​iss-​en. Emphasis added.

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compared to the moral or simply exhortative one that, one part of scholarship on the matter, used to attribute indiscriminately to the preambles of any international instruments. The ecsr, in its Decision on Complaint No. 15/​2003, presented by the European Roma Rights Center against Greece for violations of Article 16 of the esc, that sets forth the right of the family to social, legal and economic protection that, in turn, finds its confirmation in the axiological expansion of the non-​discrimination clause as included in the preamble of the esc. The Committee, even in persisting absence in the Charter of a general provision on the matter, combined again the principle of equality and the principle of non-​discrimination,53 as it had already done in 1991, in the occasion of the Conclusions related to Ireland and adopted at the end of the Cycle xi-​2: “(…) In addition the principle of equality and non-​discrimination form an integral part of Article 16 as a result of the Preamble”.54 In this way the original meaning and value of the non-​discrimination clause, as included in the preamble of the esc were extended. Therefore, the principle of equality becomes a principle protected in the Charter as notoriously combined with the principle of non-​discrimination.55 The first has a wider efficacy as compared to the latter, which instead, came out downsized on both a theoretical and a practical level,56 since it is only aimed at labelling as 53

In other important instruments of international law; it is instead their operative part in itself to favour or even to determine such phenomenon. See also Giovanni Guiglia, “Non discriminazione ed uguaglianza: unite nella diversità”, Gruppo di Pisa. Dibattito aperto sul Diritto e la Giustizia costituzionale, 2012, No. 2, p. 2, at: https://​www.grupp​odip​isa.it/​ima​ ges/​rivi​sta/​pdf/​Giovan​ni_​G​uigl​ia_​-​_​Non_​discriminazione_​ed_​uguagl​ianz​a_​un​ite_​nell​a _​di​vers​ita.pdf, where it is highlighted “la Dichiarazione [Universale dei Diritti dell’Uomo del 1948], pur dedicando disposizioni distinte alla non discriminazione e all’uguaglianza (artt. 2 e 7), accosta in esse varie nozioni, miscelando i principî di non discriminazione, di uguaglianza davanti alla legge e di eguale protezione da parte della legge”. Such intertwining can be found also in the International Covenant on Civil and Political Rights (artt. 2, § 1, 3 e 26), in the American Convention on Human Rights, “Pact of San Jose”, Costa Rica (art. 1, § 1, e 24) as well as Charter of Fundamental Rights of the European Union (artt. 20, 21 e 23). “Non stupisce, quindi, se la Corte interamericana dei diritti dell’uomo, giudicando sulla base dell’omologa Convenzione, ha poi finito per sistematizzare il coacervo concettuale, consacrando un unico principio di uguaglianza e di non discriminazione”. 54 Cf. ecsr, European Roma Rights Center v. Greece, complaint No. 15/​2003, decision on the merits of 8 December 2004, § 26, at: http://​hudoc.esc.coe.int/​eng/​?i=​cc-​15-​2003-​dmer​its -​en. Emphasis added. 55 Cf., ex plurimis, Xavier Bioy, “L’ambiguïté du concept de non-​discrimination”, in Frédéric Sudre and Hélène Surrel, Le droit à la non-​discrimination au sens de la Convention européenne des droits de l’homme, Bruxelles, Bruylant, 2008, pp. 51–​84. 56 Manuela Brillat, Le principe de non-​discrimination, cit., p. 10, reminds indeed (In turn, making reference to Gérard Cornu (dir.), Vocabulaire juridique, Paris, Dalloz, 2014, p. 388)

28 Guiglia discriminatory every distinction or difference of treatment that lacks any reasonable and objective justification or balance between the means employed and the scope pursued. From the non-​discrimination principle, does not follow directly and immediately,57 that positive actions characterised by particular and distinctive rules, created –​for e­ xample –​by the lawmaker in order to put in practice different treatments, can be justified if reasonable and proportional to the objective pursued, in situations only superficially identical or at least similar and comparable. It is worth noting that the extensive interpretation concerning positive actions, that the ecsr consider necessary on the part of States Parties in order to reach a full and effective factual equality, that has its foundations on the preamble of the esc of 1961,58 can be at least partially

57

58

that: “(…) l’égalité se définit par l’absence de discrimination, rendant ainsi ces deux expressions équivalentes sauf sur un point : l’égalité contient aussi « l’idéal d’égalité effective que les règles et institutions tendraient progressivement à réaliser en atténuant les inégalités de fait », ce à quoi le principe de non-​discrimination ne semble pas renvoyer de prime abord”. With reference to the Social Charter and the control activity of the ecsr, of particular relevance is the fact that it significantly introduced the principle of non-​discrimination and the principle of equality, putting on States the positive duties, falling from the first and intended to effectively realising the latter, specifically in its substantial meaning. The duty on States to put in place positive actions is indeed a consequence of the control activity of Committee on indirect discriminations, in particular those due to ethnic and racial reasons, or descending from situations of handicap. Of particular relevance are the following decisions of the ecsr: complaint No. 27/​2004, European Roma Rights Centre (ERRC) v. Italy, decision on the merits of 7 December 2005, §§ 19, 21, 46, and complaint No. 13/​2002, International Association Autism-​Europe (IAAE) v. France, decision on the merits of 4 November 2003, §§ 51–​54. Regarding the latter, the following paragraph is particularly relevant § 52: “(…) in a democratic society should not only be viewed positively but should be responded to with discernment in order to ensure real and effective equality”. With reference to the Social Charter and the Control activity exercised by the ecsr, it is worth of note that the latter introduced within the principle of non-​discrimination the principle of equality, placing on States positive obligations, that derive from the first and are aimed at the effective realisation of the latter, especially with reference to its substantial meaning. The duty on States to pursue positive actions derives from the control activity on direct and indirect discriminations, in particular those determined by racial and ethnical reasons or descending from situations of handicap, performed by the Committee. In this sense, of particular relevance are the following decisions of the ecsr: complaint No. 27/​2004, European Roma Rights Centre (ERRC) v. Italy, decision on the merits of 7 December 2005, §§ 19, 21, 46, and complaint No. 13/​2002, International Association Autism-​Europe (IAAE) v. France, decision on the merits of 4 November 2003, §§ 51–​54. In latter, of particular relevance is the following passage of § 52: “(…) in a democratic society should not only be viewed positively but should be responded to with discernment in order to ensure real and effective equality”.

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included in the system of the echr, thanks to Protocol No. 12, adopted in 2000, which affirms: “(…) the principle of non-​discrimination does not prevent States Parties from taking measures in order to promote full and effective equality, provided that there is an objective and reasonable justification for those measures”. However, a substantial difference persisted between the two treaty-​based instruments, since, as already explicitly mentioned in the Explanatory Report at § 16: “(…) the present Protocol does not impose any obligation to adopt such measures. Such a programmatic obligation would sit ill with the whole nature of the Convention and its control system which are based on the collective guarantee of individual rights which are formulated in terms sufficiently specific to be justiciable”. It is only thanks to the bold and non-​ambiguous jurisprudence of the ECtHR59 that, it is possible to reach a level of protection analogous to the one afforded under ecsr. Similar relevance has then the clarifications that the Committee articulated around the legal value and efficacy non-​discrimination principle, that are deductible from the paragraphs of this decision rendered on the merit of Complaint No. 45/​2007, submitted by the International Centre for the Legal Protection of Human Rights (interights) against Croatia. In such Complaint Croatia was accused of not respecting Articles 11 § 2, and 16, considered separately and in combination with the non-​discrimination clause as enshrined in the preamble of the esc. Some parts of the decision pinpoint how the Committee intended to direct to the State Party involved in the violation towards a pervasive application of the non-​discrimination clause in such a way as to inform in synergy all the policies potentially implicated and all the specific norms intended to be applied in the Charter: “Having regard to the non-​ discrimination clause in the Preamble to the Charter, sexual and reproductive 59

Cf. ECtHR [gc], 16 March 2010, Oršuš and Others v. Croatia, No. 15766/​03, § 177 and ECtHR, 29 January 2013, Horváth and Kiss v. Hungary, No. 11146/​11, § 104. On the topic: Edouard Dubout, “La Cour européenne des droits de l’homme et la justice sociale –​Á propos de l’égal accès à l’éducation des membres d’une minorité. Cour européenne des droits de l’homme, Gde. Ch., Orsus et autres c. Croatie, 16 mars 2010 (2010)”, No. 84, rtdh, 2010, pp. 987–​1011; Julie Ringelheim, “La discrimination dans l’accès à l’éducation: les leçons de la jurisprudence de la Cour européenne des droits de l’homme”, rtdh, No. 105, 2016, pp. 77–​96; ID., “Le préambule du Protocole no 12 à la Convention européenne des droits de l’homme”, 2019, at: http://​hdl.han​dle.net/​2078.1/​194​395, that in light of the jurisprudence of the ECtHR expresses its view in the following way : “La position de la Cour sur la question de savoir si, et dans quelle mesure, la règle de non-​discrimination au sens de la Convention peut emporter une obligation d’adopter des mesures d’action positive, reste donc ambiguë. La maigre jurisprudence développée sur la base du Protocole n°12 n’a, jusqu’à présent, fourni aucun éclaircissement sur ce point”, p. 6.

30 Guiglia health education must be provided to school children without discrimination on any ground, direct or indirect, it being understood that the prohibition of discrimination covers the entire range of the educational process, including the way the education is delivered and the content of the teaching material on which it is based. (…) [W]‌here these courses are approved and/​or wholly or partially funded by the Government and/​or invoked by the State Party as an element in fulfilling its obligations under the Charter, the sexual and reproductive health education taught through them must remain objective and must comply with the non-​discrimination principle. (…) The Committee therefore hold that the discriminatory statements contained in educational material used in the ordinary curriculum constitute a violation of Article 11 § 2 in light of the non-​discrimination clause”.60 With its observations the Committee did not limit itself to use the non-​ discrimination clause for mere hermeneutical reasons, but it also combines it with a precise provision of the Charter that is recalled by the Claimants which is Article 11. In doing so it obtains an evident reinforcement on its legal and practical level. In the case mentioned as an example, as in many other decisions, the legal efficacy of the non-​discrimination clause as enshrined in the preamble is in turn, entirely evident: only thanks to its combination with Article 11 of the Charter that it has been possible to give visibility in all of its extension the potential of the latter; conversely the right to health, as formally recognised in the esc, would have been unacceptably and concretely amputated of its efficacy. In many of its decisions, the ecsr remarks the need to combine the non-​ discrimination clause, included in the preamble of the esc, with the provisions it dedicates to the social rights as for example, deductible from the decision on the admissibility of Complaint No. 52/​2008, deposited by Centre on Housing Rights and Evictions (cohre) against Croatia that aimed at obtaining a declaration of non-​compliance with respect to the measures adopted by the said State in relation to Article16 of such instruments. This decision is particularly interesting. The Croatian Government attempts to make the Committee declare the inadmissibility of the complaint basing its argument on the fact that the claiming organisation would have based its complaint solely on the violation of the preamble. The Committee substantially confirmed that the non-​discrimination clause did not have an independent application within the collective complaints procedures, and had only regard in relation to, 60 Cf. ecsr, International Centre for the Legal Protection of Human Rights (INTERIGHTS) v. Croatia, complaint No. 45/​2007, decision on the merits of 30 March 2009, §§ 48, 49 and 66, at: http://​hudoc.esc.coe.int/​eng/​?i=​cc-​45-​2007-​dmer​its-​en.

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at least, one or more norms of the 1961 Charter,61 similarly to what happens within the echr system in relation to Article 14, notoriously dedicated as well to the principle of non-​discrimination. The preamble of the esc (rev) is as well applicable within the framework of the collective complaints’ procedure. In a decision on the matter based on Complaint No. 58/​2009 –​submitted by Centre on Housing Rights and Evictions (cohre) against Italy, which was accused that the situation of Roma and Sinti people in Italy was contrary to Articles 16, 19, 30 and 31 of the revised Charter –​ all the mentioned articles were to be read in combination with its Article E which is dedicated to the principle of non-​discrimination. The Committee recalled a principle inherent in the preamble of such instrument reminding that: “such realisation of the fundamental social rights recognised by the Revised Charter is guided by the principle of progressiveness, which is explicitly established in the Preamble and more specifically in the aims to facilitate the ‘economic and social progress’ of States Parties and to secure to their populations ‘the social rights specified therein in order to improve their standard of living and their social well-​being’”.62 These affirmations are self-​explaining. The preamble of the esc (rev), such as the one of the esc, at least for the part recalled by the ecsr, possess a legal scope and an efficacy that extend beyond its hermeneutical value. The equalisation of the legal efficacy recognised to the non-​discrimination clause, as envisaged in the preamble of the esc, with the one recognised to Article E of the esc (rev), notwithstanding the differences traceable on their respective provisions, was already recognised by the Committee in the Interpretative Observation of 2005 regarding Article 11 of the esc, dedicated to the right to health, as already mentioned, was reiterated in the same manner on the decision regarding Complaint No. 104/​2014, presented by the European Roma and Travellers Forum (ertf) against the Czech Republic, with the aim of ascertaining the violations of Article 16 and 11 of the esc, to be read separately or in combination, with the mentioned non-​discrimination clause.63

61 Cf. ecsr, Centre on Housing Rights and Evictions (COHRE) v. Croatia, complaint No. 52/​ 2008, decision on admissibility of 30 March 2009, §§ 4, 8, 17, at: http://​hudoc.esc.coe.int /​eng/​?i=​cc-​52-​2008-​dadm​iss-​en. 62 Cf. ecsr, Centre on Housing Rights and Evictions (COHRE) v. Italy, complaint No. 58/​2009, decision on the merits of 25 June 2010, § 27, at: http://​hudoc.esc.coe.int/​eng/​?i=​cc-​58 -​2009-​dmer​its-​en. Emphasis added. 63 Cf. ecsr, European Roma and Travellers Forum (ERTF) v. Czech Republic, complaint No. 104/​2014, decision on the merits of 17 May 2016, § 112, cit.

32 Guiglia Instead, the interpretation of decision rendered on Complaint No. 117/​2015 is not of an easy interpretation compared to the constant jurisprudence of the Committee intended to combine the non-​discrimination clause of the 1961 Charter with the social rights recognised on other of its parts. This complaint was deposited by Transgender Europe and ilga-​Europe against the Czech Republic, with the aim of verifying the violation of Article 11 of the esc, to be read both separately and in combination with the non-​discrimination clause as enshrined in its preamble. The reasons that led the majority of the ecsr to such decision are still unclear. The Committee expressed is viewpoint through following argument: “The Committee however considers that while there may be discrimination issues in the complaint, as the complaint has been lodged under the 1961 Charter the Committee will not consider the complaint in light of the Preamble to the 1961 Charter”.64 In my opinion, the Separate Concurring Opinion of one of the members of the ecsr, Karin Lukas, is totally understandable and is summarised by the following few sentences: “(…) the sterilisation requirement is discriminatory on the ground of gender identity. Transgender persons are discriminated when compared to cisgender persons, whose gender identity is recognized at birth without any seriously infringing medical interventions being imposed, such as sterilisation. (…) This difference in treatment lacks an objective and reasonable justification. Under international human rights law, medical treatment may only be imposed in emergency situations for the benefit of the health of the individual concerned, where that individual is not able to give his or her consent. Sterilisation for the purposes of legal gender recognition clearly does not meet these conditions and is therefore in grave violation of Article 11 § 1 and the Preamble to the 1961 Charter”.65

Concluding Remarks

The analysis on the control activity of the ECSR of this chapter, focussed on the use of the preambles of the treaty-​based system of European Social Charter. Although not aspiring to be exhaustive, this analysis has highlighted, in my opinion, the importance that these preambles have acquired in the practice. They have indeed acquired in the legal practice, a legal efficacy that extends 64 Cf. ecsr, Transgender-​Europe and ILGA-​Europe v. Czech Republic, complaint No. 117/​2015, decision on the merits of 15 May 2018, § 88, at: http://​hudoc.esc.coe.int/​eng?i=​cc-​117-​2015 -​dmer​its-​en. 65 Cf. the §§ 6 and 7 of the Separate Concurring Opinion, at: http://​hudoc.esc.coe.int/​eng?i =​cc-​117-​2015-​dmer​its-​en.

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beyond the stereotypical marginal and hermeneutical value that for many years have made them uninfluential on a juridical level.66 Afterall, by analysing the historical, political, cultural, ideological and economic context of the 50s of the past century, the drafting of the European Social Charter,67 adopted in 1961, and by considering such an instrument not only in light of its preparatory work but also in the perspective of its financial and economic consequences that could have still affected States Parties,68 if they actively committed to grant the social rights as envisaged in its provisions, it is possible to better understand the reasons that back then influenced both the preceptive formulation of some of its articles and its effective application. The scepticism and the hesitation of States Parties towards the ESC have progressively diminished only since the 80s, when in the majority of such States favourable economic and political changes gained momentum. Within the competent organs of the Council of Europe (in particular, the Committee of Ministers) was then reached the necessary agreement to achieve the objectives as clearly indicated in its preamble and, in some cases weakly supported in its operative part. This gave an impulse to a fruitful period of relaunch of such instrument that led, as already mentioned, to the adoption of the Protocols of 1988, of 1991 and of 1995, and finished in 1996 with the opening for signature of the ESC (rev). Since the 60s of the past centuries, the most attentive scholarship has led a significant hermeneutical work around the ESC. However, these activities have not focussed on its preamble. The attention dedicated to this instrument and to the preamble of the ESC (rev), becomes instead vital if the idea that both can 66 Cf. Nikolaos A. Papadopoulos, “Revisiting the Preamble of the European Social Charter: Paper Tiger or Blessing in Disguise?”, Human Rights Law Review, 2021, https://​doi .org/​10.1093/​hrlr/​ngab​021, p. 20: “The Committee’s creative and dynamic interpretation serves as an example of a human rights treaty body that responds to the contemporary challenges of identifying the treaty’s object and purpose, by engaging directly or indirectly with the content of its preamble through its reasoning. Furthermore, the interpretive practice of the Committee illustrates the importance of the Charter’s preamble in substantively influencing the rights and obligations arising from the treaty.”. 67 Therefore, the reference to the use of the principle of contemporaneity, as well essential for the intepretation of international treaties, is implicit. Cf., in this regard, Francesco Viola, “Apporti della pratica interpretativa del diritto internazionale alla teoria generale dell’interpretazione giuridica”, Ragion pratica, No. 17, 2001, p. 62 and note 27. 68 It is worth noting that, the same preamble of the ECHR is probably not susceptible to produce economic and financial duties as burdensome as the ones that can descend on the States Parties of the European Social Charter, if combined some of social rights of the Charter –​such as the right to health –​with the principle of non-​discrimination, (incidentally) indicated on its preamble.

34 Guiglia assume in the practice a complementary, integrative and compensative function with respect to the provisions contained in the Charters, is to be shared. The analysis conducted in this contribution seems to demonstrate that the ECSR, within the framework of its careful and punctual analysis of control, has recognised to its preambles such functions. It has done so, by attributing them an essential legal efficacy functional to the (gradual) achievement of the objectives set forth in the treaty-​based system of the Charter, transcending their undoubtful hermeneutical value, anyways highlighted by the interpretative practice through the use of the teleological method of interpretation combined with the systematic one.69 In the end, the European Social Charter, both in its original and in its revised version, clearly demonstrates to have been conceived in order to respond to humans’ social needs to whom it is addressed. It aims at progressively improving their living conditions and at guaranteeing a decent life with the objective of reaching an authentic well-​being. Therefore, it is completely understandable that the preambles have not been perceived by the ECSR as simply exhortative parts of their respective treaties, that only explicate their effects on a moral and political level. Instead, they have been instead interpreted and applied with the aim of both clarifying the meaning and the scope of the rights envisaged in its provisions and, of reaching the ambitious objectives deductible from their complex system of protection.70 As already noted throughout this work, it is precisely from the preamble of the ESC (rev) that has been deduced –​among other things –​the principle of progressivity as efficiently applied in order to avoid discriminatory and regressive treatments towards vulnerable populations. The ECSR, indeed, arguing the contrary, has deduced from it, the principle of non-​regression. The principle of non-​regression, in turn, even not implicating, as such, a prohibition for States to adopt regressive measures of protection, given that they are justified, for

69

70

“Il rifiuto dell’intenzionalismo e l’adozione di una metodologia interpretativa teleo-​ sistematica permette di imporre agli Stati obblighi che vanno ben al di là delle loro intenzioni iniziali, conferendo all’interpretazione un potere produttivo di diritto”. In this sense, see also Francesco Viola, “Apporti della pratica interpretativa del diritto internazionale”, cit., p. 65 and note 40, who takes inspiration from Jean Combacau and Serge Sur, Droit international public, 2e éd., Paris, L.G.D.J, 1995, p. 179. As also affirmed in Johannes Antonius Maria Klabbers, “Treaties and Their Preambles”, in Michael J. Bowman and Dino Kritsiotis (eds.), Conceptual and Contextual Perspectives on the Modern Law of Treaties, Cambridge, Cambridge University Press, 2018, p. 172, “(…) a promise made in the preamble may be as good as one made in the main body of text.”.

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example, by a lack of economic resources available, it has imposed –​and still imposes –​in any case to each of them to prove the decision they have assumed were necessary and based on an in depth analysis of possible alternatives, that therefore less inflictive measures could not have been employed, especially for the most vulnerable ones. During the long period of economic and financial crisis that has been dramatically hitting Europe since 2008, the regressive measures adopted by some State parties have been contrasted by the ECSR71 thanks as well to the principle of progressivity that can be deduced in its general from the preamble of the Charter and, in particular, from some of its specific provisions.72 Therefore, although implicitly, thanks to the preamble of the Charter the Committee during the crisis could conduct an attentive syndicate to reasonableness for the regressive measures adopted by States, and on the balance they had to strike among the social rights protection, at hand, with other primary interests, and other financial obligations. The ECSR, as opposite to other judicial e and other international control bodies, in particular to the ECtHR,73 has achieved to affirm more effectively its 71

72

73

Of particular relevance are its decisions regarding Greece. In particular, it is worth mentioning complaints No. 65 and 66 of 2011 and from No. 76 to No. 80 of 2012, availables in English and in French at: https://​hudoc.esc.coe.int/​eng. See also Giovanni Guiglia, “Il ruolo del Comitato Europeo dei Diritti Sociali al tempo della crisi economica”, Rivista AIC, No. 2, 2016, pp. 1-​22; ID., “A jurisprudência do Comité Europeu de Direitos Sociais em tempos de crise económica: as decisões relativas à Grécia”, Lex Social -​RDS, No. 7, 2017, pp. 190-​ 210, at: https://​www.upo.es/​revis​tas/​index.php/​lex​_​soc​ial/​arti​cle/​view /​2570/​2029. In particular Article 12, § 3, of the Charter. In this respect, see also the Interpretative Statement of 2002, concerning such provision at: http://​hudoc.esc.coe.int/​eng/​?i=​2002​ _​163​_​06/​Ob/​EN. Similarly interesting is the “Separate Concurring Opinion of Luis Jimena Quesada”, expressed in relation to complaint No. 88/​2012, Finnish Society of Social Rights v. Finland, decision on the merits of 9 September 2014, at: http://​hudoc.esc.coe.int/​eng /​?i=​cc-​88-​2012-​dmer​its-​en. It is my intention to make reference to the decision on the admissibility Koufaki and Adedy v. Greece of 7 May 2013, No. 57665/​12 and No. 57657/​12, in which the European Court of Human Rights dedicates in my opinion an excessive space to the discretionary power of the State involved, stressing it because related to its social and economic policy, without paying due attention to the fact that the measures adopted did not respect the domestic Constitutional law, and upholding instead the rhetoric of the judgement of the Council of the Greek State and of the introductive report relative to the Law No. 3833/​ 2010, both intended to justify the austerity measures of the state simply because caused –​ therefore not justified –​by the exceptional economic-​financial crisis with no precedent in the Country’s history. Therefore, the same proportionality of such measures has been appreciated by the ECtHR transcending not only its temporariness but in particular also the fact that other, less afflictive, measures could have been adopted for the interested

36 Guiglia role in the definition and in the protection of the essential content of the rights recognised in the Charter, both at a substantial level and at a procedural level. At the same time, it has also achieved to clarify its position on both the qualitative and the quantitative dimension of the damages States Parties can cause to the Charter. It has done so, by combining the principle of non-​regression –​ which, as already noted, is rooted, first of all, in the preamble of the Charter –​ with the principles of proportionality and reasonableness. In this way it has impeded that the lack of economic resources due to the crisis could in itself justify the decrease of the standards of protection of the social rights involved, from which notably depends on the preservation of the dignity of the same States. And, finally, what else to say about the non-​discrimination clause as enshrined in the preamble of the ESC? Certainly, its relevance cannot be reduced to a programmatic one; as it is undoubtful that it is addressed to States parties in order to promote the respect for the right74 that it aims at introducing in its relevant in treaty-​based instrument.75 Without the said clause –​inserted

74

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parties in doing so hiding behind a reasonableness, that instead, in light of a more careful and an in-​depth comparative analysis of the available solutions, frankly seems to be doubtful and only apparent. This reasonableness as so conceived, does not give room to evaluate the concrete violation of the essential content of the rights involved, contained in the ECtHR in this occasion it left free discretionary power of the Greek government. However, in this way the European Court of Human Rights seems to be excessively reducing its importance in favour of the austerity measures adopted by the States parties. In doing so, it renounces to recognise those standards of protection, which are instead inherent to its role of guarantor of the rights recognised in the ECHR. Those standards in the case at hand should be based on the notoriously extensive interpretation rendered by the Court itself of Article 1 of Protocol No. 1 of the Convention, dedicated to the right of property –​and specifically referred to, respectively, the salary, and the pensions regime of the applicants –​with final aim of protecting the dignity of the individuals involved before the shameless economic interest of the States. Manuela Brillat, Le principe de non-​discrimination, cit., p. 9, reminds that one of the peculiarity that characterise the concrete application of the clause of non-​discrimination consist in the identification of the standards within the framework of the juridical analysis, so that “(…) en plus d’être un droit, la non-​discrimination fait office de radar dans l’analyse juridique des droits de l’Homme et de leur effectivité : il ne s’agit pas uniquement d’un droit, comme tous les autres; il joue en plus le rôle de principe directeur”. Intepreting the preamble of the Single European Act (SEA) in relation to the democratic principle, Georg Ress, “Sulla necessità di legittimazione parlamentare del potere normativo delle Comunità europee. Riflessioni sul diritto comunitario europeo e sul diritto costituzionale tedesco”, in Georg Ress, Parlamentarismo e democrazia in Europa, Napoli, Guida Editori, 1999, p. 35, detects that “il valore giuridico di un preambolo di un trattato internazionale (come l’AUE) non si esaurisce necessariamente nella sua funzione di regola interpretativa. Al contrario, in esso possono essere stati rivolti alle parti anche autonomi principi giuridici e possono essere stati assunti obblighi giuridici”.

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as last resort in the preamble and applicable to all the provisions of the Charter –​an uncountable series of discriminatory acts would have escaped from the control of the ECSR, both within framework of the reports procedure and within collective complaints procedure, and led to the failure of another essential objective pursued by this system as a whole: the elimination of discriminatory treatments in all of the ambits falling within its scope including the indirect ones, In order to effectively guarantee the protection of its social rights, through the adoption of social and economic policies to be realised by State parties by means of adequate norms and coherent applicative practice adopted through a perspective of concrete equality among individuals. It is never enough stressed that the principle of non-​ discrimination, included in the preamble of the Charter of 1961 and successively inscribed in Article E of the ESC (rev), has been used by the ECSR –​as it has been noted during this analysis –​not only in order to verify the reasonableness of the differences of treatments operated by States in factual situations, which are the result of norms as well as of domestic practices. But also –​obviously it could also be said, in consideration of the context and of the content of the Charter, as well as of the principles and objectives that characterise this instrument –​in order to direct the States towards the adoption of positive measures increasingly directed to the achievement of a substantial equality. In doing so, the Committee goes beyond the mere syndicate against the formal non-​ compliance of States with the Charter in their laws and practices.76 In conclusion, from my point of view, it could be said that the European Social Charter, thanks as well to the legal efficacy recognised by the ECSR to those parts of its preambles as already pointed out throughout this work, that it can with good reasons be indicated as the normative instrument mainly

76

Tatiana Gründler, “Quelle effectivité de la lutte contre les discriminations? Les enseignements du système de la Charte sociale européenne”, in Tatiana Gründler and Jean-​Marc Thouvenin, La lutte contre les discriminations à l’épreuve de son effectivité, Mission droit et justice, 2016, pp 1-​25, at: https://​hal.parisn​ante​rre.fr/​hal-​01659​374/​docum​ent, analyses the control activity of the ECSR vis à vis to the principles of equality and of non-​ discrimination, highlighting that: “Ce que les Chartes et surtout les experts européens promeuvent, c’est une égalité réelle. Dès lors c’est une conception large des discriminations que ces derniers portent et inculquent aux Etats qui font parfois preuve, telle la France, de résistance. Deux types d’obligations en résultent pour les Etats, certaines de nature négative consistant à purger leur droit de toute réglementation discriminatoire et à interdire les comportements discriminatoires largement entendus (A),d’autres de nature positive impliquant des mesures actives si ce n’est positives (B).”, p. 13.

38 Guiglia capable of protecting the social rights of the citizens of States that have ratified and effectively applied this instrument.77

77

In this regard, it is worth noting the contribution of Giuseppe Palmisano, “La procédure de réclamations collectives”, cit., p. 520: “Du point de vue du contenu substantiel –​et si l’on se réfère à la version « révisée » –​on peut bien dire que la Charte sociale constitue aujourd’hui, au niveau international et européen, l’instrument juridique dédié à la protection des droits sociaux le plus étendu et le plus complet qui soit.”.

pa rt 1 List of Rights and Principles

∵

List of Rights and Principles Carole Nivard



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 following rights and principles may be effectively realised: 1 Everyone shall have the opportunity to earn his living in an occupation freely entered upon. 2 All workers have the right to just conditions of work. 3 All workers have the right to safe and healthy working conditions. 4 All workers have the right to a fair remuneration sufficient for a decent standard of living for themselves and their families. 5 All workers and employers have the right to freedom of association in national or international organisations for the protection of their economic and social interests. 6 All workers and employers have the right to bargain collectively. 7 Children and young persons have the right to a special protection against the physical and moral hazards to which they are exposed. 8 Employed women, in case of maternity, have the right to a special protection. 9 Everyone has the right to appropriate facilities for vocational guidance with a view to helping him choose an occupation suited to his personal aptitude and interests. 10 Everyone has the right to appropriate facilities for vocational training. 11 Everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable. 12 All workers and their dependents have the right to social security. 13 Anyone without adequate resources has the right to social and medical assistance. 14 Everyone has the right to benefit from social welfare services. 15 Disabled persons have the right to independence, social integration and participation in the life of the community. 16 The family as a fundamental unit of society has the right to appropriate social, legal and economic protection to ensure its full development.

© Koninklijke Brill NV,

42 Nivard





17 Children and young persons have the right to appropriate social, legal and economic protection. 18 The nationals of any one of the Parties have the right to engage in any gainful occupation in the territory of any one of the others on a footing of equality with the nationals of the latter, subject to restrictions based on cogent economic or social reasons. 19 Migrant workers who are nationals of a Party and their families have the right to protection and assistance in the territory of any other Party. 20 All workers have the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex. 21 Workers have the right to be informed and to be consulted within the undertaking. 22 Workers have the right to take part in the determination and improvement of the working conditions and working environment in the undertaking. 23 Every elderly person has the right to social protection. 24 All workers have the right to protection in cases of termination of employment. 25 All workers have the right to protection of their claims in the event of the insolvency of their employer. 26 All workers have the right to dignity at work. 27 All persons with family responsibilities and who are engaged or wish to engage in employment have a right to do so without being subject to discrimination and as far as possible without conflict between their employment and family responsibilities. 28 Workers’ representatives in undertakings have the right to protection against acts prejudicial to them and should be afforded appropriate facilities to carry out their functions. 29 All workers have the right to be informed and consulted in collective redundancy procedures. 30 Everyone has the right to protection against poverty and social exclusion. 31 Everyone has the right to housing.

Part 1 states the rights and principles guaranteed by the European Social Charter. It is meant to be read in parallel with Part 2, which develops each one of these rights, elaborating on the States Parties’ commitments towards their implementation. This first Part of the Charter holds, in itself, all the hopes and disappointments evoked by the treaty.

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Hopes in that, by stating a list of rights all States Parties committed to work at enforcing, it was supposed to be the first step in building Social Europe. Disappointments for the declarative value it was assigned inhibited any move in that direction. The absence of constraining value was a consequence of the disagreements that arose between the Members States of the Council of Europe when the Charter was written. Nevertheless, it weighed durably on its destiny, so much so that the full potential of Part 1 of the Charter has yet to unfold. The Charter is made up of five Parts and an Appendix. Part 1 comes immediately after the Preamble. It consists of the list of rights guaranteed by the Charter. That “statement of rights”1 or “decalogue”2 describes the objectives towards which the States Parties’ actions must aim. The provision indeed starts with a general introductory sentence according to which “the Contracting Parts 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 following rights and principles may be effectively realised”. It is followed by said list of rights and principles, namely 31 paragraphs (19 paragraphs in the Social Charter of 1961, to which the 4 paragraphs of Part 1 of the additional Protocol to the European Social Charter3 were added). Each of these paragraphs is linked to an Article in Part 2, with each paragraph in Part 1 stating a right while the matching Article in Part 2 details its normative content and the corresponding commitments involved for the States. Therefore, Parts i and ii of the Charter are symmetrically linked. They must additionally be read in the light of Article A (or Article 20 of the 1961 Charter) of Part 3, which details the nature and scope of the States’ commitments towards them. As such, Article 20 § 1 a) states that “Each of the Parties undertakes: (…) to consider Part 1 of this Charter as a declaration of the aims which it will pursue by all appropriate means, as stated in the introductory paragraph of that part”. Conversely, as far as Part 2 is concerned, each contracting Party commits “to consider itself bound” by a certain number of its articles and paragraphs in virtue of an “à la carte” selection system. It was thus decided to split the recognition of the fundamental rights guaranteed by the Charter in two Parts of a

1 Suzanne Grévisse, “Rapport introductif”, in Jean-​François Akandji-​Kombé, Stéphane Leclerc, La Charte sociale européenne, Bruylant, 2001, p. 4. 2 Carmen Salcedo-​Beltran, “La réception de la jurisprudence anti-​crise du Comité européen des droits sociaux en Espagne: le contrat de soutien aux entrepreneurs”, Lex social-​Revista de derechos sociales, Vol. 5, No 1 (2015), p. 205. 3 ets No.128, Adopted in Strasbourg on May 5, 1988.

44 Nivard clearly distinct nature. Part 1 has a declarative value, while Part 2 contains constraining commitments (within the limits of the provisions accepted). This partition constitutes the real originality of the Charter amongst other treaties related to human rights. Such originality may however be explained by the arbitration that took place when the Charter was written. i

Presentation

In its special message of May 20, 1954,4 the Committee of Ministers of the Council of Europe decided to create a Social Committee made up of expert senior officials tasked, among other things, with preparing a European Social Charter. As pointed out by the Committee of Ministers, the Charter “would define the social objectives aimed at by Members and would guide the policy of the Council in the social field”. Furthermore, the Charter “would be complementary to the European Convention on Human Rights and Fundamental Freedoms” in social matters. These objectives are in keeping with those identified by the Consultative Assembly in a previous Opinion.5 From the beginning, drafting the Charter answers to a double objective: a political one (to establish the directive lines of the future European social policy) and a constitutional objective (to serve as the social component of the objective order of European values).6 This double ambition explains the wide differences of opinion that arose amongst all actors at the state, institution, civil and political levels, who participated in drafting the Charter. Thus, Part 1 is the fruit of the compromise that was necessary to ensure the signature or ratification of the Charter by the most reticent States (A). Moreover, the double purpose of the Charter carries with it a certain ambiguity as to the meaning of Part 1, somewhere between a simple catalogue and a

4 cm, Special Message of May 20, 1954 delivering the action programme of the Council of Europe to the Consultative Assembly, Doc. 238, §§ 45–​46. 5 Opinion 5 (1953), Memorandum by the Secretariat-​General concerning the activities which the Council of Europe could properly carry out in the social sphere, adopted by the Assembly in its 21st session on September 23, 1953 (see Doc. 188, report by the Commission on Social Issues). 6 sg Memorandum 1953 “This Social Charter would, together with the Convention on Human Rights and Fundamental Freedoms, constitute a solemn declaration by the European States of the spiritual values underlying western civilisation”. Doc. 140 | May 11, 1953 Memorandum by the Secretariat-​General concerning the activities which the Council of Europe could properly carry out in the social sphere § 4.

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shared foundation of social values (B). The result is a relatively uncertain legal significance: non-​legal but normative nonetheless (C). Origins: The Expression of a Compromise A Splitting the list of Charter rights in two parts is quite original in international human rights law. Its authors did not find their inspiration, in this regard, in the preparatory work of the International Covenant on Economic, Social and Cultural Rights (‘icescr’ hereafter) that was simultaneously being developed in the United Nations.7 The split was motivated by the compromise that had to be found between the member States of the Council of Europe who participated in drafting the Charter. An irreconcilable opposition notably existed between those governments who wished to commit to a constraining instrument, and those who insisted the Charter should have a declarative form. Among the latter, the United Kingdom government was the most virulent of all and consequently opposed the very idea of drafting a Charter, the added-​value contribution of which it did not even perceive compared to the Universal Declaration of Human Rights or the norms of the International Labour Organization. The firm majority was ultimately expressed, within the Committee of Ministers, in favour of an instrument of a constraining character. Nevertheless, the reluctances that had come to light had an indubitable effect on the choices made when drafting the document. Analysing the preliminary works to the Charter reveals significant clues behind the adopted form. First, writing Part i as a list stems from the work method used by the Social Committee, which had been tasked by the Committee of Ministers to “decide on the form and content” of the future Social Charter.8 In order to overcome the differences of opinion between governments, the Committee based its work on surveys concerning designated rights asking, on the one hand, how they were applied in national legal orders, and on the other hand, whether the States agreed for them to be part of the Social Charter. The intent was for the rights which were the object of a consensus to reveal themselves. But whereas the governments generally agreed as far as identifying those rights, the opposition between them was significant as far as the nature of the commitment was concerned. Most governments were in favour of giving a constraining nature to the Charter, which led to the 7 Which opted for a single list preceded by a general provision softening the commitments (obligation to take steps towards the progressive realisation of rights). 8 cm, Special Message of May 20, 1954 delivering the action programme of the Council of Europe to the Consultative Assembly, Doc. 238, § 46.

46 Nivard Resolution (56)25 of the Committee of Ministers9 which clarified the mandate of the Social Committee in this sense. However, with certain States persisting in their reticence, the Charter was subsequently split. The United Kingdom delegation suggested during the iiird and ivth sessions of the Social Committee (1956) that the Charter contain a first part that would be declarative and state the identified rights in general terms. The United Kingdom nonetheless added a note10 explaining it would not be “a simple declaration” in that the States “would have to accept all the provisions listed in this Part” and would commit to “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 following rights and principles may be effectively realized”. The wording of the first sentence of Part 1 can be recognized here, as it was suggested by the United Kingdom delegation as soon as April 1956.11 The second Part would then contain more precise mandatory provisions that the States could choose to accept or not when ratifying the Charter. Ultimately this formula was selected and maintained until the final version of the Charter. Once adopted in 1961, the split was not reconsidered later but instead was maintained when the list of rights was completed in the 1988 Protocol,12 then marginally modified and completed with the 1996 Revised European Social Charter. B An Ambivalent Content 1 A Simple Catalogue of Rights and Principles? The list of rights contained in Part 1 –​those rights guaranteed by the Charter –​ makes it the most complete in the world as far as supranational instruments guaranteeing social rights. This observation is true when speaking of the European Social Charter as it was revised in 1996. The 1961 Charter, though advanced for its time, showed some shortcomings, be it that some rights had been deliberately kept out13 or simply ignored.14 9 Adopted on December 15, 1956. 10 Appendix vii under ec/​Soc (57) 5, April 18, 1957. 11 ec/​Soc (56) 7, April 27, 1956. 12 See Explanatory Report to the Additional Protocol “Its structure has deliberately been modelled on that of the Charter; thus there is the same sub-​division into a Part 1, containing a general statement of rights and principles having the force of ‘aims’ and a Part 2 presenting the same rights in the form of detailed rules and stating explicitly the Parties’ undertakings”. 13 Notably the right to education, cultural rights, the rights to food, clothing and housing. See the list of rights mentioned in the works of the Social Committee, Collected Edition of the “Travaux préparatoires” for the European Social Charter, vol. iii, 1956, p. 742–​743. 14 Some rights do not appear here inasmuch as they correspond to aspirations and issues which arose later, such as the right to a healthy environment, the right of minorities, dignity at work ….

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Most of the rights guaranteed by the 1961 Charter have their counterpart in the icescr, a project the writers of the Charter knew about. However, some of the rights which were present in the Covenant were not kept at the European level, such as the right to an adequate standard of living, the right to education and the cultural rights. On the other hand, the Charter contains new rights: the right to enjoy social services (§ 14), protection for disabled people (§ 15), freedom of professional movement (§ 18)15 as well as migrant workers’ rights (§ 19).16 The list of rights –​and thus, the Charter –​was immediately considered to be evolutionary, i.e. destined to be completed to suit social evolutions.17 Drafting the 1988 additional Protocol did precisely that by adding four rights corresponding to paragraphs 20 to 23 in the Charter. Finally, the revised Social Charter added eight new rights and reinforced the rights that were already guaranteed by the first two instruments. The new rights concerning workers find their inspiration, for the most part, in European Community law and the large number of European directives adopted in that domain, as well as in ilo Conventions. The formulation when it comes to right to housing (§ 31) and right to protection against poverty and social exclusion (§ 30) as autonomous rights is, in itself, more unprecedented in international law. The list of rights contained in the Charter is thus particularly rich. Yet it remains non-​exhaustive and open to amendments as per Article J of the Charter. Some rights, such as the right to a healthy environment as well as the so-​called cultural rights, are not themselves the object of a specific recognition.18 One may also question the addition to the list of the right to non-​ discrimination, currently listed under Article E of the Charter. If this principle is actually horizontal and applies to all Charter rights, it could integrate Parts i and ii amongst those rights guaranteed by the Charter. This would confirm

15 16 17 18

Inspired from the European Establishment Convention, ste No. 019 of December 13, 1955. Which was taken from the Convention (No. 97) on migrant workers (revised), 1949. Such is the meaning of Article 36 of the 1961 Charter explaining the amendment procedure, and of Article J of the Revised Charter, stating expressly the possibility of expanding the list of rights guaranteed by the Charter. Even if ecsr case law included the right to a healthy environment within the scope of Article 11 (Right to health) of the Charter. Moreover, cultural considerations are not absent from the scope of protection of certain rights, such as Article 15 § 3, Article 22 c, Article 24 a and Article 30. They do however concern specific groups of people.

48 Nivard its autonomous significance for, similarly to Article 14 echr, it can lead to a violation report when combined with another Charter right, even if that particular right has not been infringed. Current economic and social evolutions also suggest new rights. Some might aim at protecting people in a climate of insecurity and/​or transformation of the labour market, such as the right to decent or dignified work, the right to professional development or the right to data protection. Other could address the risks threatening access to essential and/​or common goods, such as the rights to water, sustainable food supplies, energy, etc.19 Aside from the more or less exhaustive nature of the list, the first sentence in Part 1 points out that it is composed of “rights and principles”. One may wonder whether a distinction must be made between these two categories. The use of “right” refers to subjective right or, at least, to a legitimate interest held by individuals and to which they can assert. In the context of this first sentence, the “principles” mentioned would then refer to standards guiding or framing the States’ actions, without however creating any direct advantage for individuals. All paragraphs nominally refer to a “right” except for the first, which lays out that “Everyone shall have the opportunity to earn his living in an occupation freely entered upon”. This does not however mean that this paragraph is not stating a right.20 The first Article in Part 2 indeed refers to the “Right to work” in its title and first sentence. The text of the Charter itself gives no indication on the characterization of rights and principles it contains. It would thus seem that the reference to “rights and principles” only aims at leaving voluntarily unresolved the question whether the Charter states rights and/​or principles, for the sake of sparing the 19

20

See for example the formulation (however slightly restrictive) of principle 20 of the European Pillar of Social Rights, adopted by the European Commission, the ep and the Council of the EU, “20. Access to essential services. Everyone has the right to access essential services of good quality, including water, sanitation, energy, transport, financial services and digital communications. Support for access to such services shall be available for those in need”. The authors undoubtedly wanted to avoid a phrase acknowledging that everybody has a “right to work” or “right to a freely chosen work”. Concern had been voiced during the preparatory works that it would create the illusion, among the populations, that they had a subjective right, claimable from the State, to be given a job. Note from the Secretariat of the Committee on Social Questions of the Consultative Assembly on the Draft Social Charter prepared by the Working Party, June 25, 1955, sa/​Soc (6)30, in Travaux préparatoires for the European Social Charter, year 1955, p. 118. Intervention M. Corish (Irish Parliamentarian), October 18, 1955, during the 15th sitting of the 7th session of the Consultative Assembly of the Council of Europe, Official Minutes, in Travaux préparatoires for the European Social Charter, year 1955, p. 187.

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different ideas held by the States regarding the definition of such notions. One could not conclude that the writers had a clear intention to distinguish two types of norms of a different nature, similarly to what was done for the Charter of Fundamental Rights of the European Union. In the latter, the distinction is explicit and comes with a difference in the legal system.21 Additionally, the interpretation of the terms of the Social Charter later adopted, particularly by the European Committee for Social Rights, does not distinguish, amongst Charter rights, those which would be “rights” properly speaking from those which would be “principles”. The principles of equal treatment and non-​discrimination are the only ones designated as such,22 which is understandable given their specific nature: at once autonomous rights and common horizontal requirements across all Charter rights. 2 A Shared Foundation of Social Values? The place and meaning of rights listed in Part 1 are unclear. Indeed, by presenting itself as a set of objectives the States’ domestic and international social policy must tend toward, Part 1 sets a course towards which ContractingStates may converge. However, listing those objectives as human rights –​without any further detail –​gives the States quasi total liberty of action as far as the implementation is concerned. The text of the Charter gives no indication as to which orientation and form a social policy may take. This Part of the Charter does not have the scope of the Preambles or the Part 1 of the projects which resulted from the work of the Consultative Assembly between 1955 and 1956.23 These stated political or philosophical principles that were supposed to guide the economic and social policy of States Parties as 21

22 23

Article 51 § 1 of the Charter states that “The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers”. See for example, ecsr, Conclusions xiii-​5 (1995), Interpretive Observation on Articles 1–​2, 4–​3, 1st of Additional Protocol; ecsr, November 4, 2003, International Association Autism-​Europe versus France, Collective complaint No.13/​2002, § 51. Social, Health and Family Affairs Committee, Draft Recommendation on the draft European Social Charter, Doc. 403, October 26, 1955, Part 1, Preamble; General Affairs Committee, Report on the Establishment of a European Convention on Social and Economic Rights, Doc. 536, September 27, 1956 (the preamble, titled “Principles and Objectives of Social Policy” reiterates most of the principles contained in the Draft Recommendation on the Draft European Charter, but omits the reference to tax and monetary policies and includes developments on the duties and responsibilities of the family and individuals in addition to the action of pubic authorities in social matters).

50 Nivard well as the actions of the Council of Europe. These principles were since then to constitute the foundation on which a European social policy could have been built. Among other things, one of the goals of the Charter as set by the projects was to improve the well-​being of the population “by a continuous rise in living standards and by the equitable sharing of resources and burdens and thus to ensure the dignity of man”.24 They indexed the States’ economic and social policies to these social objectives and the development of the human person.25 Beyond this demand of a teleological order, the projects mentioned more specific methods, such as ensuring that “workers should have a share in the fruits of their labours, particularly by participation in the profits of the undertaking by which they are employed”, condemning all discriminations, “assisting the less favoured sections of their populations”.26 The formulation of some of the rights was also in line with committed political choices, such as economic interventionism27 or support for workers to get on the property ladder.28 The Social Committee, when tasked by the Council of Ministers with a Charter project, did not keep the formulation of these principles, because of its work methodology (see supra). When the writing was being finalized, governments visibly did not wish these programs-​principles to appear anywhere. A feeble remainder was left in the Charter Preamble, where a reference is found

24 Draft Recommendation on the draft European Social Charter, Doc. 403, op. cit., Part 1, Preamble, § 1; Report on the Establishment of a European Convention on Social and Economic Rights, Doc. 536, op. cit., Preamble, § 1. 25 Doc 403, op. cit., “3. The High Contracting Parties regard economic policy not as an end in itself, but as a means of attaining social objectives, which are defined in terms of the moral and spiritual values inherent in the common heritage of the European peoples. 4. In particular, in carrying out their economic and social policy, the Governments will adopt no measures incompatible with human dignity and the integrity of the family. The supreme aim of their social policy will be to develop the human personality and to allow the individual the opportunity of exercising his natural gifts to the full, with due regard for his duty to other individuals and to the community in which he lives”. See also Doc 536, op. cit., § § 2 and 3. 26 Doc. 403, op. cit., §§ 7, 8 and 12 and §§ 7, 8 and 13 Doc. 536. 27 Doc. 403, op. cit., Article 1 “The High Contracting Parties undertake to ensure the maintenance of the volume of investments needed for full employment in Europe and to make up any inadequacies by public investments; to assist, stimulate or create new economic activities, particularly to replace those which are obsolescent; and to provide for the rehabilitation and re-​settlement of unemployed workers”. 28 Doc. 403, op. cit., Article 8 “In order that workers may progressively become the owners of real and personal property, particularly of their own homes, the High Contracting Parties undertake to protect savings and create favourable conditions for their encouragement, in particular by the organisation of credit”.

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to bettering the living standard and promoting the wellbeing of populations, as well as a reference to the principle of non-​discrimination. By contrast, not one trace of these principles was left in Part 1 of the Charter, which lists the rights with sobriety. Ultimately, the Consultative Assembly projects were closer, both in spirit and content, to the 1944 Declaration of Philadelphia.29 The final wording of Part 1, for itself, is closer to the text of the Universal Declaration of Human Rights. Reading Part 1 leaves a catalogue impression, reinforced further by the repetitiveness found in faithfully reusing its wording in the titles of Part 2 articles. Its declarative nature brought with it the risk that Part 1 might be eclipsed by Part 2 (which is what happened in practice cf. infra ii). Although the list of rights was less ambitious, it remains nonetheless that it formalized the common social goals that the large majority of the Member States of the Council of Europe (43 out of 47) committed to pursue. In this regard, it constitutes to this day the most representative and complete instrument in Europe in terms of social rights. For this reason, it should be considered as the Social Constitution of Europe,30 inspiring not only the Council of Europe and its Member States but also the European Union. The real point of the Charter and its Part 1, as a list of social rights, may actually be that they do not impose such and such political or economic vision on social issues, and instead a human rights-​based approach.31 Thus, they transcend the differences and divergences that exist in domestic economic and social policies and impose a common protection standard centred around people and the effectiveness of their fundamental rights. Part 1 does not constitute the political program of social Europe, but it can be the expression of the community of values upon which European social policy or policies are erected.32 In the 29 30

31

32

Adopted on May 10, 1944 by the General Conference of the International Labour Organisation. Olivier De Schutter (coord.), The European Social Charter: a social constitution for Europe, Bruylant, 2010. Expression used in the Opinion of the Secretary General of the Council of Europe given on December 2, 2016 in Strasbourg, regarding the initiative supporting the establishment of a European Pillar of Social Rights by the European Union. A similar approach underpinned the draft Charter proposed by the Consultative Assembly Social Affairs Committee Doc. 403 (“4. In particular, in carrying out their economic and social policy, the Governments will adopt no measures incompatible with human dignity and the integrity of the family. The supreme aim of their social policy will be to develop the human personality and to allow the individual the opportunity of exercising his natural gifts to the full, with due regard for his duty to other individuals and to the community in which he lives”). See in this regard Jean-​Paul Pancracio, “Charte sociale et droit international public”, in Jean-​François Akandji-​Kombé and Stéphane Leclerc (dir.), La Charte sociale européenne,

52 Nivard course of their work on Social Charter projects, the Consultative Assembly parliamentarians had thus agreed on such a principle “The High Contracting Parties regard economic policy not as an end in itself, but as a means of attaining social objectives, which are defined in terms of the moral and spiritual values inherent in the common heritage of the European peoples”.33 C An Uncertain Legal Scope The very existence of Part 1 is the fruit of a compromise which brought all the States in agreement around a common list of rights and, ultimately, made it possible for the Charter to be signed by them. The result, however, is a legal instrument which is difficult to identify. Such a subdivision is utterly original in international human rights law. International texts are divided into declarations and conventions. The Social Charter is undoubtedly a Convention, but a convention that contains a declarative part. That could make it a “convention of a hybrid nature”,34 part-​declaration (Part 1), part-​convention (Parts 2 to 5). That being said, the inclusion of provisions of a political nature –​as in the Preamble, for instance –​does not justify questioning the description of the whole legal instrument as an international treaty. Moreover, the purely declarative impact of Part 1 may be nuanced. 1 An a Priori Declarative Value The declarative nature of Part 1 is a priori obvious. It is a consequence of the express terms of Article A § 1, a (Article 20 § 1 (a) of the 1961 Charter). Traditionally in international public law, the declarative nature of any provision results either from the nature of the document containing it, or, in the case of a constraining instrument, from the interpretation of the terms used. The structure of the Charter in this regard is very original.35 The terms of Article A leave few doubts as to the intention of the authors of the Charter. This interpretation is confirmed when analysing the preparatory works. As we

33 34 35

Bruylant, 2001, p. 188, who, after mentioning the conditionality of the ratification, states that “Visibly, what is aimed for is not a harmonisation of legislations –​this process is, as is commonly known, difficult to implement at the community level, albeit more restricted –​ but rather a common minimal practice, a sort of minimum standard of civilisation in social matters”. Doc 403, op. cit., § 3; Doc 536, op. cit., § 2. Frederik Mari Van Asbeck, “La Charte sociale européenne : sa portée juridique, la mise en œuvre”, in Mélanges offerts à Henri Rolin. Problèmes de droit des gens, Pedone, 1964, p. 432. Indeed, a growing number of international conventions, notably in environment law, formally state the binding or non-​binding nature of the provisions they contain.

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mentioned supra, they show that the declarative scope of Part 1 conditioned the most reticent States to participate in building the Charter and to commit to it. The first authorised commentators of the 1961 Charter therefore noted the declarative value without questioning it.36 F.M. Van Asbeck qualifies it as a “declaration of goals”.37 As to Pierre Laroque, he speaks of a “purely moral commitment devoid of sanctions”.38 Part 1 was also compared to the proclamation of udhr.39 Later, the Explanatory Report on the Revised European Social Charter reiterated the absence of any legal nature in Part 1, adding that “As in the case of the Charter, Part 1 contains a declaration of a political nature” (§ 13). Thus, the States’ commitment to Part 1 is purely moral. It does not entail any control whatsoever at the international or national level. Its provisions are not subject to any monitoring on behalf of the European Committee on Social Rights or any authority. A State Party adopting a behaviour contrary to Part 1 goals would not make itself responsible of an internationally wrongful act and will not have to repair its consequences or suffer sanctions. Part 1 has therefore no legal value, as it cannot give rise to a violation report. However, it does have a normative quality as we understand it. 2 A Normative Scope: The Obligation to Pursue All Listed Goals a An Obligation Set Out in the First Sentence of Part 1 The clarity of the terms of Article A concerning the declarative nature of Part 1 does not forbid us from discussing its meaning and scope. Indeed, the wording of Article 20 § 1, a) borders on the absurd. It is a constraining provision laying a commitment regarding non-​constraining provisions. The States commit to considering Part 1, which determines the goals they will pursue by all means

36 37 38 39

Hans Wiebringhaus, “La Charte sociale européenne”, afdi, ix, 1963, p. 713. Frederik Mari Van Asbeck, loc. cit., p. 432. Pierre Laroque, “La Charte sociale européenne”, Droit social, No. 3, March 1979, p. 106. Finn Tennfjord, “The European Social Charter. An Instrument of Social Collaboration in Europe”, European Yearbook, vol. ix, 1961, p. 76 (“Part 1 simply proclaims, in terms similar to those of the UDHR, nineteen different ‘rights’ covered by the Charter”). See also Donna Gomien, David Harris, Leo Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter, Ed. du Conseil de l’Europe, 1998, p. 403 (« Bien qu’inscrit dans un traité, il s’agit ici d’un engagement politique, et non d’un engagement juridique. L’engagement concerne par essence la politique et est similaire à celui de la DUDH: les parties à la Charte conviennent d’assurer en temps voulu la protection entière de tous les droits énumérés à la Partie i »).

54 Nivard … a declaration. Thus, the Article sets the limitation of its effects.40 It literally commits not to commit. Following this reasoning, the States commit to the declarative nature of Part 1, which means that should a State consider itself committed to Part 1, it would not be complying to Article A of the Charter. The only function of Article A § 1 is to remind the States that any of them willing to ratify the Charter must accept the totality of Part 1 as goals that it will pursue in its social policy, and that accepting it will not lead to any constraint, control or sanction, contrary to the provisions of Part 2. We cannot, however, restrict the value of Part 1 to a purely declarative one: a systemic interpretation of the Charter (apprehending the treaty as a whole) cannot eclipse the fact that this Part is included within a treaty, a constraining instrument that is. What we have is a political declaration contained within a legal instrument. And the Charter, as a treaty, must be interpreted and applied in good faith. By ratifying the Charter, States committed to respecting its provisions, and the content of Article A is clear in that regard. While the Article does mention that Part 1 has a declarative value, it also emphasizes that it determines the goals States will strive to reach by all means possible. Thus, it does express an obligation of conduct which the States must respect for the sake of the principle of good faith. The declarative nature of Part 1 does not therefore signify a total absence of commitment. An obligation of conduct leading to the goals listed is indeed laid out. This interpretation is supported by the text of the Explanatory Report to the Revised Social Charter. While this document does describe Part 1 as a “declaration of a political nature” (§ 13), further on, the explanations under Article A state that “Paragraph 1 a [of Article A] obligates States to consider themselves committed to all the objectives expounded in Part 1 of the Charter, as was already the case for the Social Charter” (§ 121). Part 1 does indeed express an obligation to pursue as an objective the effective exercise of Charter rights.41 Therefore, Part 1 does not only possess a political value, but is also normative in that it contains an obligation of conduct for the States. Denying it any

40 41

David Harris, “The European Social Charter”, International & Comparative Law Quarterly, Volume 13, Issue 3 July 1964, p. 1080 (“This is clearly a binding legal undertaking, although its content is such as to limit its practical effect”). See also Olivier De Schutter’s analysis, in “The European Social Charter in the context of implementation of the EU Charter of Fundamental Rights”, Study for the afco Committee, European Parliament, 2016, p. 12, note 17 (“The principles enunciated in Part 1 were not originally considered to be the source of legal obligations and are not subject to any form of monitoring. According of the Explanatory Report attached to the Revised esc, however, the declaration of aims of Part 1 is binding as an objective to be pursued”).

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legal value would amount to restricting the definition of Law to its constraining nature (and exclude numerous international law norms from it). If we opt for a wider acceptation of law, the legal nature of Part 1 is admissible. Part 1 does indeed express a norm governing the States’ conduct, formulated within an instrument of a legal nature. We are dealing here with a very flexible norm which, all in all, pertains to soft law. b Nature of the Obligation in the First Sentence Even though Part 1 is not of a binding nature, it does come with a legal regime. Some of the provisions found in various texts of the Charter, as well as in the explanatory reports related to them, bring a more specific light on its meaning and contents. An obligation thus emerges, the nature of which may be questioned. It is evident that the formulation of the first sentence is characterized by the flexibility of the commitment it presents. The Contracting Parties accept an objective –​and therefore do not commit to it. Since it is an aim, the States must tend toward this common goal without being obligated to attain it. States are only required to implement policies which would be in line with said objective. Additionally, the aim itself is tempered: it does not consist in ensuring the effective exercise of the Charter’s rights and principles, but simply to create the conditions required for such an effective exercise to be possible. Now, such conditions may be defined in a diversity of manners. Finally, if the States are to pursue their policies “by all appropriate means both national and international in character,” the form and level of said means and their character are in no way specified. In short, the States enjoy an almost unlimited margin of interpretation as far as the modalities of attainment of said objective are concerned. If we admit the normative nature of Part 1, for want of legal character, the obligation it formulates for the States is so flexible that it pertains to what could be qualified as “soft norm”. A sort of double precaution can be noted on the part of the drafting States, who made sure to avoid any constraint in the formulation of the terms of Part 1 itself or Article A which specifies its legal impact (or rather the absence of it). When drafting the explanatory report for the 1988 Protocol (the first one ever drafted for Charter texts, with the 1961 Charter being devoid of such), States Parties insisted on recalling the reasons behind that flexibility. Part 1 and Article 20 (current Article A) “Thanks to the flexible drafting of these texts, they have been accepted by a number of states, not all of which have the same concept of economic and social rights and, in particular, of the way in which they are exercised” (§ 15). Where the first sentence of Part 1 is concerned, it adds furthermore that “a state may choose not to intervene directly if, according to its legal

56 Nivard and institutional system, this is the best way of attaining the conditions in which the [..] rights in question ‘may be effectively realised’, without the need to express any reservations whatsoever to this end” (§ 16). Any State could thus justify its passivity by demonstrating that it is the best way, in its domestic environment, to attain the effective exercise conditions of a particular right. However, the sentence seems to have been added to appease the concerns of States where the economic vision is hostile to excessive State interventionism or dirigisme. The influence of trade unions on the drafting of labour norms may also have weighed. Here is yet another exemplification of the dissensions and disparities which divide European States and prevented them from reaching anything beyond a minimalist agreement. Consequently, the States enjoy a very wide margin of interpretation to determine the means they can use to tend toward the attainment of rights.42 The States’ freedom is such that it was not necessary to mention the progressive character of such attainment, following the example of Article 2 § 1 of icescr.43 Such a progressive character indeed tacitly stems from the formulation of an objective. Similarly, there was no need to condition the actions of the States to a condition of available resources, as States appeared already free enough to arbitrate in this matter. Some of the Charter provisions do limit the interpretation that States can have concerning their commitment. Thus, as per Article G (Article 31 of the 1961 Charter),44 constituting the general clause regarding a possible justification of restrictions:

1. The rights and principles set forth in Part 1 when effectively realized, and their effective exercise as provided for in Part 2, shall not be subject to any restrictions or limitations not specified in those parts, except

42

Jean-​Paul Pancracio qualified the commitment contained in Article A § 1 as a “general obligation coming under the responsibility of the States” in the sense in “Parties thus freely determine the means which will enable them to apply the social rights they have subscribed to” in Jean-​Paul Pancracio, loc. cit., p. 183. “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-​operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures”. It had initially been suggested that the matter of restrictions be included after the preliminary paragraph in Part 1. It was finally decided between September and December 1957 to add this article within Part 5. Thus, mentioning the restrictions was deliberately done in Part 1 as well as in Part 2. (The fact that this clause was going to be included in Part 2 as well certainly justified it being moved to Part 5).

43

44

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such as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals. 2. The restrictions permitted under this Charter to the rights and obligations set forth herein shall not be applied for any purpose other than that for which they have been prescribed.

Furthermore, temporary provisions clarify the meaning of some paragraphs in Part 1. The Annex to the Charter specifies, regarding Paragraph 18 of Part 1 and Article 18, Paragraph 1 of Part 2 (Right to engage in any gainful occupation in the territory of other Contracting Parties on a footing of equality with the nationals of the latter), that “It is understood that these provisions are not concerned with the question of entry into the territories of the Parties and do not prejudice the provisions of the European Convention on Establishment, signed in Paris on 13 December 1955.45” In its turn, the Explanatory Report to the Additional Protocol to the European Social Charter of 1988 specifies the impact of the 1st paragraph of its Part 1 (Paragraph 20 of the Revised Social Charter). It thus explains that “The term “workers” in right No. 1 in Part 1 shall be taken to include unemployed persons, persons seeking employment, those undergoing vocational training and all other potential workers” (pt. 18). These various provisions relating to the manner in which the meaning and significance of the terms of Part 1 must be interpreted do indicate that Part 1 sets forth, for the Contracting States, an obligation to pursue an objective, the limits of which had to be determined. Said obligation does not however constitute a legal commitment since it does not entail any control or responsibility. One may then wonder how effective Part 1 may have been in practice after its adoption. ii

Practice

Part 1 of the Charter has a declarative value according to the terms of the Charter themselves. However, that does not make it completely inconsistent. As a declaration within a treaty, it has a minima a moral and political value. As 45

cets 019. Convention that lays the principle of equality of treatment for the nationals of Contracting Parties coming to establish themselves or reside on the territory of another contracting Party. It is currently ratified by 12 States within the Council of Europe.

58 Nivard we just saw, its terms do reveal a norm, albeit very flexible, inciting the States to pursue a convergent objective. As such, while its legal effects may have seemed inexistent, Part 1 was bound to produce political effects. Part 1 may well have sparked hope, as it was supposed to symbolize the European foundation of social values, if not the first step of a convergence of national policies towards a social Europe. It does in fact formalize a consensus in that it is the only substantial part of the European Social Charter which has been accepted by all States Parties.46 For all that, the practical record is particularly sparse. The European Social Charter and its system struggled to be taken seriously by European States, other European organizations and even some institutions within the Council of Europe. This lack of consideration hit Part 1 of the Charter even harder because of its non-​binding character. The fact that it does not entail any control contributed further to keeping it in the shadow. In fact, its prosperity was based for the most part on the good will of the contracting States as well as on the inclination shown by interested parties to seize the text. The significance of Part 1 was clearly neglected. Instances of references or invocations to Part 1 are relatively rare. However, two main functions may be identified in connection with it. An incentivizing function first of all (A), and also an interpretive function (B). A An Underexploited Incentivizing Function The incentivizing function of Part 1 stems first of all from the objective set in it by the States. They are likely to be reminded of said objective, formulated within an international convention which commits them, by all stakeholders in the attainment of Charter rights. Thus, national governments and parliamentarians can draw guiding principles in it to initiate or reform their social or labour policies. It can also be a source of inspiration for legislators and professional organizations in terms of labour regulation and workers’ rights. The first commenters of the Charter could therefore have faith in the political value of Part 1. Finn Tennfjord saw in it an instrument bringing impetus to social progress.47 Frederik Mari Van Asbeck also believed in the symbolical value of such “a founding document to which governments and parliaments

46 47

Only the first three paragraphs of Article 1 were accepted by all States Party to one of the Charters! Finn Tennfjord, loc. cit., p. 82 (“The Charter will become a strong support for those who work for social progress who can invoke the introduction to Part 1, where all Parts accept the complete implementation of the Charter as an aim of policy”).

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should not deny their focused attention, an instrument which commits them with its mere title”.48 Evidently, the impelling or incentivizing effect that any European instrument may have is difficult to measure. It can however be perceived in the frequency of references within official documents or in the course of discussions leading to their creation. Now, references to the Charter are not legion, and those to Part 1, even less so. When the Charter is mentioned amongst citations or within legislative proposals or work, most references are made to the provisions of Part 2. The incentivizing effect of Part 1 may first be studied within the documents of the Council of Europe. The objectives listed were indeed supposed to constitute a sort of program of action for the Council of Europe in social matters. Nonetheless, an act or decision very rarely refers to the provisions of Part 1 of the Charter. Exceptionally, resolutions or recommendations from the Committee of Ministers refer to them, either to quote the paragraph in Part 1 in addition to the corresponding Article in Part 2,49 or to mention a specific right from Part 1 list that the recommendation is helping attain.50 As a particular example, a recommendation concerning human rights and companies mentioned the obligation stemming from the first sentence in Part 1 and added that it also applied in the case of violations committed by those private entities.51 48 49

Frederik Mari Van Asbeck, loc. cit., p. 448. Resolution (70)15 on the Social protection of single mothers and their children, adopted on May 15, 1970 (“Considering Article 17 of Part 1, developed by Article 17 of Part 2 of the European Social Charter”) ; Recommendation No. R (86) 5 of the Committee of Ministers to Member States on the generalisation of medical care, adopted on February 17, 1986 (“Bearing in mind the provisions of points 11, 12 and 13 of Part 1, and of Article 11 of the European Social Charter (Right to health protection) as well as Articles 12 (Right to social security) and13 (Right to social and medical assistance)”). 50 Recommendation cm/​Rec(2010)6 of the Committee of Ministers to Member States on good governance in health systems, adopted on March 31, 2010 (“Recalling Part 1 of the European Social Charter (revised) (ets No. 163) which provides that the Parties thereto recognise 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 right of everyone to benefit from any measures enabling him to enjoy the highest possible standard of health attainable may be effectively realised”). 51 Appendix to Recommendation cm/​Rec (2016)3 of the Committee of Ministers to Member States on Human Rights and Business, adopted on March 2, 2016 (“16. The European Social Charter, the European Social Charter (revised) and the Additional Protocol to the European Social Charter Providing for a System of Collective complaints (ets No. 158) are other key instruments that afford protection against business-​related human rights abuses, in particular with regard to the rights of workers. Member States which have ratified these instruments 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 all the rights and principles

60 Nivard To the exception of these few examples, the vast majority of documents or acts adopted in the social field make no reference –​even indirectly –​to Part 1 objectives. In particular, the recommendations, resolutions or advice from the Parliamentary Assembly of the Council of Europe or from the Congress of local and regional authorities do not refer to the provisions of Part 1. When a reference is made, it is either to the Charter in general, or to Part 2 articles. Part 1 was not cited to support any proposal or incentive directed to the Committee of Ministers or to Contracting States. While this does not mean that the influence of Part 1 was non-​existent, it was however not explicit. It did not become the political tool it could have been. Concurrently, it does not seem to have become an impulsion lever for social policies at the national level either. In French law, for instance, collective legislations, regulations and conventions in the social domain hardly ever refer to the European Social Charter and never to its Part 1. This is also the case for parliamentary debates. The situation seems the same within most of the States Parties to the European Social Charter. It is therefore difficult to conclude that Part 1 has an incentivizing function for States. Indeed, the incentivization can only stem from its political value, since this part of the Charter does not entail any control procedure at the international or national levels. Now, European and national political actors have visibly not used these provisions to boost actions promoting the attainment of social rights. Paradoxically, an example of a more systematic use of Part 1 as a boosting instrument can be found within the European Union. Paradoxically because the European Union did not join the European Social Charter and is therefore not formally committed to it, even if it does place the Charter amidst the foundations of its actions and sources of inspiration.52 The fact is that, in the last few years, the European Parliament has referred to the Social Charter and its Part 1 in a number of resolutions relating to social issues.53

52 53

set out in Part 1 of the European Social Charter (revised) may be effectively realised, and should consider increasing the number of accepted provisions”). See the Preamble to the Treaty on European Union, Article 151 of the Treaty on the Functioning of the European Union and the Preamble to the Charter on Fundamental Rights of European Union. European Parliament Resolution of 19 January 2017 on a European pillar of social rights (2016/​2095(ini)); European Parliament Resolution of 13 September 2016 on Creating labour market conditions favourable for work-​life balance (2016/​2017(ini)); European Parliament Resolution of 28 April 2016 on Women domestic workers and carers in the European Union (2015/​2094(ini)); European Parliament Resolution of 25 November 2015 on the European Union strategic framework on health and safety at work (2014–​2020);

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This practice seemed specific to the European Parliament, as no other references to Part 1 provisions could be found in the legal documents of the European Union. Particularly, while the Explanations relating to the Charter of Fundamental Rights of the European Union refer heavily to the articles of the European Social Charter which inspired the recognition of certain rights, it is Part 2 and not Part 1 which is cited.54 However, some recent references to Part 1, one in a proposal for a Directive on minimum wages55 and one in an order of the European Court of Justice56 reflect the extent of interest shown by other EU institutions. The incentivizing function Part 1 of the Charter remains clearly underexploited. Its declarative value certainly contributed to this state of affairs. Part 2 articles were therefore favoured in the rare occasions when references are made to the Social Charter provisions in judicial texts or official documents. B An Underdeveloped Interpretive Function As we saw supra, the Charter’s particular structure entails that the rights it guarantees are recognized within two distinct Parts. Part 1 lists the rights as a set of objectives, while Part 2 focuses in more detail on the States’ commitments to the attainment of said rights. Therefore, although they do not hold the same binding value, the two Parts are linked and must be read as a whole. Part 1 has another function, which is to clarify the interpretation of the Charter’s terms as well as the obligations stemming from it for States. Indeed, while the obligation formulated by Part 1 fall under soft law and cannot entail any control, it does give some indications as to the object, the meaning and the aim of the Charter. Furthermore, certain paragraphs in Part 1 contain specifications not found in the corresponding Part 2 Article, therefore clarifying the limits of the obligations involved. As an example, paragraph 20 in Part 1 concerning the right to equality of opportunities and treatment in matters of employment and occupation, without discrimination on the grounds of sex, recognizes this right to the benefit of “all workers”, thereby informing the field

54 55 56

European Parliament Resolution of 14 January 2014 on Effective labour inspections as a strategy to improve working conditions in Europe (2013/​2112(ini)). See Explanations, published 14 December 2007, 2007/​C 303/​02, explanations ad Article 14, Article 15, Article 23 and Articles 25 to 35 of the Charter on Fundamental Rights of European Union. Proposal for a Directive Of The European Parliament And Of The Council on adequate minimum wages in the European Union, com(2020) 682 final, presented on the 28 of October 2020. Order of the Court (Eighth Chamber) of 10 January 2022, EL and CP v Ryanair DAC, Case C-​287/​20.

62 Nivard of protection of Article 20, which does not include any indication as to the beneficiaries of said right.57 This function was immediately perceived by the actors charged with applying the Charter and ensuring it was respected, particularly by members of the Independent Experts Committee. Thus, Pierre Laroque, who was the first president of the Independent Experts Committee, stated as early as 1977 that “if Part 1 of the Charter does not contain but a definition of objectives without any precise legal obligations, the principles it details nonetheless form, in many cases, a useful basis for interpreting the commitments taken with these objectives in sight. The formulation of Article 20, Paragraph 1, and of Article 31 of the Charter conduces to give it this significance”.58 The Independent Experts Committee case law, as well as the European Committee on Social Rights’, provides some examples of referencing Part 1 of the Charter with an interpretive aim. As it emerges, such examples are rather rare and relate essentially to the Committee’s first conclusions. However, a particular practice is worth highlighting, which consists, in most of the decisions rendered within the framework of collective complaints, in citing the article or articles, objects of the claim, referring to the paragraph in Part 1 as well as to the corresponding Article in Part 2. Such practice by the ecsr has the merit of reminding that the list of Charter rights is split, within the Charter, in two distinct provisions that are meant to be read as one. This choice reveals the interpretive technique adopted by the ecsr, namely systemic interpretation, which seizes the text of the treaty as a unit. Thus, the Article in Part 2 cannot be read separately from the rest of the Charter and notably from the manner in which the right it describes was drafted within Part 1. This method of citation also systematizes the interpretive work transpiring in some of the Committee conclusions, which consists in expressly targeting Part 1 provisions in order to determine the scope of the States’ commitment to a right. The few illustrations emerging from the Committee case law, despite their small number, have the merit of showcasing different forms and purposes for the interpretation work executed. Firstly, the Committee mentioned Part 1 in order to proceed to a teleological interpretation of the terms of the Charter.59 57

58 59

All the more so as the term was the object of clarifications in the explanatory report cf. 1988 Explanatory Report to the Additional Protocol to the European Social Charter, § 18. See also Explanatory Report to the Revised Social Charter, § 82 (“The 1988 Explanatory Report to the Additional Protocol remains valid”). Report published in Droit social, 1979, p. 115. See also in this regard the dissident opinions of a member of the Independent Experts Committee. See Mr. Fabricius’ (German) dissident opinion in Conclusions viii (1984),

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Thereby, concerning Article 18 of the Charter dealing with the right to engage in a gainful occupation in the territory of other Parties, the Committee considered very early on that it should be read and interpreted in the light of Paragraph 18, which states as a “position of principle”60 that “the nationals of any one of the Parties have the right to engage in any gainful occupation in the territory of any one of the others on a footing of equality with the nationals of the latter, subject to restrictions based on cogent economic or social reasons”. Indeed, Article 18 of the Charter details the obligations of the Charter without referring to any aim toward treatment equality or banning discrimination. The corresponding Paragraph in Part 1 contains specific elements not found in the Article and which constitute a major complement to the latter. The Committee thus concludes that “the letter and spirit of Article 18 mean that the situation of nationals of States bound by the Charter should gradually become as far as possible like that of nationals”.61 Thereby, in the name of the principle of equality, the Committee was able to conclude to the non-​conformity of the situation in the German Federal Republic, where foreign workers –​from outside the European Communities –​ including those residing in Germany, were not being issued work permits for the members of their family. The Committee decided that such inequalities in accessing work permits were “contrary to the objective of Article 18” intending for that right to be exercised “on a footing of equality with nationals, subject to restrictions based on cogent economic or social reasons –​the existence of which does not appear to be established in this case”.62

60

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Interpretive Observation, Article 8 § 1. He defends women’s self-​determination and refers to the letter and intention of Article 8 (Part 2 and Part 1) to reject the idea of a compulsory maternity leave. In his eyes, Article 8 only guarantees the right to a leave, women can freely choose to benefit from or not. See also Mr. F. Fabricius’ dissident opinion in Conclusions x–​i (1987), defending the idea that closed-​shop systems are in conformity with Article 5 of the Charter (Right to organise). He bases his evaluation on the objective stated in paragraph 5 of Part 1. Indeed, according to him, “In the case of salaried workers, this politico-​legal objective, namely the right for all workers and employers to negotiate collectively, can only be attained by the compulsory membership to an organisation that can be legally created, or by the obligation to undertake the required step toward such membership”. ecsr, Conclusions ii (1971), Statement of Interpretation, Article 18, “the Committee also pointed out that under paragraph 18 of Part 1 of the Charter, […] Article 18, paragraphs 1 to 3, must be interpreted in the light of that definition of principle, and it is for the Contracting States to provide evidence, in their biennial reports, of any ‘cogent economic or social reasons’ to account for the wider or narrower scope of their efforts to meet the commitments contained in Article 18”. ecsr, Conclusions ii (1971), Statement of Interpretation, Article 18 § 3. ecsr, Conclusions vi (1979), Federal Republic of Germany, Article 18 § 1 to 3.

64 Nivard Paragraph 18 of Part 1 sets forth the principle of equality but also its limits, which are “cogent economic or social reasons”. Later, as part of conclusions concerning Denmark, the Committee concluded to the violation of Article 18 § 1 on the grounds that the Government had not issued any work permits to foreign nationals from outside the European Communities or Nordic countries with which it maintains particular relations. The Committee stated that “This can, of course, be justified, on economic grounds, to which reference is made in Part 1 (paragraph 18) of the Charter, but since, as regards the application of the Charter, any measures taken in this field would only affect a fairly small number of people ( from Austria and Cyprus), the Committee found it hard to accept that economic arguments could justify such restrictive provisions in their case”.63 Secondly, Part 1 of the Charter was cited by the Committee for a constructive interpretation of the Charter terms. In its first Conclusions, the Committee of experts based itself on the formulation of paragraph 17 of Part 1 to literally build the contents of Article 17 of the 1961 Charter guaranteeing the right of mothers and children to social and economic protection. The Committee had indeed noted that “The wording of this Article is less precise than that of the principle”.64 Notably, “the principle as formulated in Part 1 of the Charter incorporates an additional concept, for there the right is affirmed ‘irrespective of marital status and family relations’”. Now, Article 17 of the 1961 Charter only stipulates that “the Contracting Parties will take all appropriate and necessary measures to that end, including the establishment or maintenance of appropriate institutions or services”, with no further details. The Committee consequently specified, in a constructive manner, the measures that must be included in the States’ reports regarding that Article. The Committee thereby expects “adequate information on general arrangements for the social and economic protection of mothers and children, economic assistance available to mothers before and after confinement, procedures for the establishment of paternity or maternity, maintenance arrangements for illegitimate children, guardianship, custody, the legitimation and inheritance rights of illegitimate children, the protection of unmarried mothers, the system of guardianship for orphans, the protection of homeless children, the measures taken in regard to adoption, and the treatment of juvenile delinquents”.65 Some of these measures clearly draw their inspiration from the elements found in Paragraph 17 of Part 1. 63 64 65

ecsr, Conclusions iv (1975), Denmark, Article 18 § 1. ecsr, Conclusions i (1969), Statement of Interpretation, Article 17. Ibid.

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Thirdly, Part 1 of the Charter was used to illustrate the significance of a Charter Article in the light of a systemic and dynamic interpretation. This was the case when addressing the right of workers to respect for their private life, which is protected under Article 1 § 2 as a prolongation of the right of workers to make a living in an occupation freely entered upon. In an interpretative observation, the ecsr stated the extent of the Charter protection against what it described as “infringements on personal or private life”. According to the Committee, “In the first place, employers may place unnecessary restrictions on their employees’ freedom of action. These include interference in their personal, or non-​working, lives, even though the activities included in this autonomous sphere may be viewed as “public” because they occur in public […]. The Charter’s insistence that anyone is entitled to earn his living in an occupation freely entered upon (Revised Social Charter, Part 1, 26 and Article 1 § 2) means that employees must remain free persons, in the sense that their employment obligations, and hence the powers of management, are limited in scope. […] Secondly, employees must be protected against infringements of their dignity, as embodied in the Charter (Part 1, Article 26, in which “dignity” appears in the title). What is at issue here is people’s private lives in the strictest sense”.66 The formulation of Paragraph 1 of Part 1 helps guide the interpretation given by the Committee to Article 1 § 2, detailing related State commitments. Better yet, the Committee does not hesitate to refer to another paragraph and thereby to the formulation of another right (“26. All workers have the right to dignity at work”) to guide its orientation and choose a wide understanding of Article 1 § 2’s scope of protection. Here again this example shows that the ecsr considers the Charter as a coherent whole. A Charter provision can therefore be read in the light of another one of its provisions. Such a systematic interpretation, which may seem questionable when dealing with a treaty composed of articles which have not all been accepted by States Parties, is not subject to discussion as far as Part 1 provisions are concerned, as they have been accepted by all States Parties. Fourthly, the ecsr referred to the terms of Part 1 in order to define the Charter rights’ scope of application ratione personae. Thus, when dealing with the right to strike guaranteed by Article 6 § 4 of the Charter, the Committee stated that such right benefitted all workers, as per the terms of Paragraph 6 of Part 1 according to which “all workers have the right to bargain collectively”. Consequently, a legislation that would limit the right to

66

ceds, Conclusions 2006, Statement of Interpretation, Article 1 § 2.

66 Nivard strike to labour unions only is not in conformity with the Charter.67 Similarly, the Committee confirmed, citing Paragraph 3 of Part 1 (“All workers have the right to safe and healthy working conditions”), that Article 3 was intended to protect all workers, including independent workers.68 Beyond European Committee for Social Rights case law, one may wonder whether other controlling entities or jurisdictions have used Part 1 in its interpretative function. Admittedly, in this instance, its provisions would not necessarily help interpret the meaning of the terms of the Charter but would primarily be a source of inspiration to interpret other instruments recognising comparable rights. It is notably typical for the European Court of Human Rights to refer to other treaties recognising human rights as well as to their supervisory bodies’ case law or practice.69 As far as the European Social Charter and ecsr case law are concerned, the Court has referred to them so as to interpret certain rights of the European Convention, first and foremost Article 11 ECtHR in its recognition of labour union freedom.70 In contrast, no judgment or decision referred to or cited concerned Part 1 provisions, which are totally ignored. This is all the more surprising as such references can be found, albeit very exceptionally, in the case law of the Court of Justice of the European Union. Particularly, the Grand Chamber of the Court of Justice refers to it in an Impact71 judgment to interpret the scope of application of the community social right principle of non-​discrimination of temporary workers. This principle indeed applies to labour conditions. Now, the question in this instance was to decide if these conditions included those relating to remunerations and pensions. The Court ruled in the affirmative, reminding that the Social Charter, referred to in the Treaty instituting the European Community,72 “which includes at point 4 of Part 1 the right for all workers to a ‘fair remuneration sufficient for a 67 68 69 70

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ecsr, Conclusions iv (1975), Germany, Article 6 § 4. See also ecsr, Conclusions xiv-​1 (1998), Sweden, Article 6 § 4. ecsr, Conclusions ii (1971), Cyprus, Article 3 § 1. A practice it defined the framework of in its case law ECtHR [gc], November 12, 2008, Demir and Baykara vs. Turkey, No. 34503/​97. For a summary of its case law, see Carole Nivard, La justiciabilité des droits sociaux. Etude de droit conventionnel européen, Bruylant, 2012, 807 p. ; Gérard Gonzalez, “Du bon usage de la synergie des sources dans la construction, par la Cour européenne des droits de l’homme, du droit à la liberté syndicale”, Revue Trimestrielle des Droits de l’Homme (rtdh), 2015, No.103, pp. 589–​601. eucj, gc, 15 of April 2008, Impact v. Minister for Agriculture and Food and Others, C-​268/​ 06. For that matter, it should be noted that Article 136, first paragraph, ce, defining the objectives for which the Council may implement, in the matters detailed under Article 137 ce

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decent standard of living for themselves and their families’ among the objectives which the Contracting Parties have undertaken to achieve, in accordance with Article 20 in Part 3 of the Charter”.73 It would seem that this reference to Part 1 of the Charter stems from the tenacity of Ms. Juliane Kokott, the Advocate General who ruled on the case.74 Ms. Kokott had already mentioned the Charter and Part 1 provisions in her conclusions on several occasions. Such references enabled her to suggest a community law interpretation that was most favourable to fundamental rights, including workers’ rights.75 She was also able to include it in a more negative argumentation in order to justify the inexistence of the right to family reunification in aid of foreigners within the Community legal order.76 These few examples show to what degree the interpretive function of Part 1 could be used with a view to clarify not only the terms of the Charter itself but also those of social rights norms pertaining to other legal orders, be it Member States or European Union’s, or even international norms. However, this assumes that a correct interpretation is made of the meaning of its terms. The way in which the Social Chamber of the French Court of Cassation77 recently referred to the terms of Part 1 in order to conclude that the European Social Charter only contains rights and principles and so that it has no direct effect in the domestic legal order, appears in this respect questionable.

and as per Article 139, paragraph 2, ce, agreements made between social partners within the Union, does refer to the European Social Charter, signed in Turin on October 18, 1961. 73 eucj, gc, 15 of April 2008, Impact, pt. 113. Cited later by eucj, 10 of June 2010, Istitutonazionaledellaprevidenza sociale (INPS) v. Tiziana Bruno and Massimo Pettini (C-​ 395/​08) and Daniela Lotti and Clara Matteucci (C-​396/​08), pt. 31. 74 Conclusions presented on January 9, 2008, Case C‑268/​06, Impact, pt. 158. 75 Conclusions presented on February 12, 2004, Österreichischer Gewerkschaftsbund, Gewerkschaft der Privatangestellten v. Wirtschaftskammer Österreichn, C220/​02, pt. 39; Conclusions presented on December 4, 2008, Kiriaki Angelidaki and Others v. Organismos Nomarchiakis Autodioikisis Rethymnis (C-​378/​07), Charikleia Giannoudi versus Dimos Geropotamou (C-​379/​07) and Georgios Karabousanos and Sofoklis Michopoulos v. Dimos Geropotamou (C-​380/​07), pt. 63. 76 Indeed, this right cannot have its foundation in the Charter (Paragraph 19 and Article 19 § 6) since the latter only guarantees such right to migrant workers from other Member States. Cf. Conclusions of Advocate General Kokott presented on September 8, 2005, European Parliament v. Council of European Union, C-​540/​03, pt. 75. 77 French Court of Cassation, Social Chamber, 11 of May 2022, Société fsm, n° 21–​15.247.

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Concluding Remarks

To conclude, the potential of Part 1 of the Social Charter has yet to be fully developed. Its political potential first of all has been minimally exploited by social rights actors. Yet, with its list of common objectives aiming at attaining a particularly ambitious number of social rights, it incarnates a community of common values shared by European States. These objectives should, consequently, be asserted to the States and their governments to orient their social policies or build a real European social policy. The normative potential of Part 1 of the Charter, finally, was insufficiently developed. Its declarative character indubitably hinders such an expansion of its impact. Nonetheless, its provisions deserve to be more utilized by the European Committee for Social Rights to interpret those amongst the Charter Articles involving a commitment. Beyond this still, using Part 1 of the Charter as a reference may shed light on other social provisions, or related, pertaining to the domestic law of Member States or to the Council of Europe or even the European Union.

pa rt 2 Revised European Social Charter

∵

article 1

The Right to Work Maria Giovannone



With a view to ensuring the effective exercise of the right to work, the Parties undertake: 1 to accept as one of their primary aims and responsibilities the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment; 2 to protect effectively the right of the worker to earn his living in an occupation freely entered upon; 3 to establish or maintain free employment services for all workers; 4 to provide or promote appropriate vocational guidance, training and rehabilitation.

Article 1 of the Charter lays down four labour protection standards with precise, albeit general, obligations on states: the pursuit and maintenance of a high and stable level of employment (Article 1 § 1); the protection of workers’ right to earn their living by freely undertaken work (Article 1 § 2); the establishment and maintenance of free employment services for all workers (Article 1 § 3); and the provision or promotion of appropriate employment services such as guidance, training and rehabilitation (Article 1 § 4). Within the framework of the Charter, the right to work enshrined in Article 1 constitutes a “fundamental” right, as it is listed among those standards with which every State has an overriding obligation to comply. Secondly, this right represents a minimum standard of protection on which other social rights are based: these are general provisions linked to specific standards of protection set out in other Articles of the Charter, such as the protection of persons with disabilities, vocational training, and the like. This constitutes an “instrumentalist good” since it protects and promotes human effort in productive work, focussing on the progress of the community. On the other hand, it represents an “intrinsic good”, because the work is a form of human expression through which the affirmation of the individual’s persona­lity in the social context is realised.1

1 The distinction is highlighted by Colm O’Cinneide, “The Right to Work in International Human Rights Law”, in Virginia Mantouvalou (ed.), The Right to Work, Hart, Oxford, 2015, p. 99.

© Koninklijke Brill NV,

72 Giovannone The structure of Article 1 guarantees States’ positive obligations regarding access to the labour market. This is a general guarantee as its compliance is mandatory. On the other hand, as we shall see, its prescriptiveness is limited since compliance with Article 1 depends on the economic and social context of the States. However, the interpretation of the European Committee of Social Rights (‘ecsr’ or ‘the Committee’) has helped to broaden the protection coefficients in Article 1, thereby expanding the States obligations in combating the exploitation of workers and providing an effective legal response to new needs for protection at work, such as the right to privacy.2 In addition, in identifying the protection needs of the most vulnerable groups, such as the persons with disabilities and migrants,3 the prohibition of discrimination, gradually outlined by the ecsr, is a driving force for expanding equal treatment among workers. At the same time, by helping to break down the (false) boundaries between civil and social rights for the consolidation of the European constitutional framework, this prohibition offers considerable food for thought on the opportunity to enhance the interpretative interconnection between the ecsr and the European Convention on Human Rights (echr). Based on these assumptions, this chapter will analyse Article 1 in context, in the light of the jurisprudence of the ecsr. In addition, it will assess whether Article 1, as interpreted by the ecsr, fits into the new conceptualisation of work (understood as “decent work”), by orienting national policies and systems towards raising labour protection standards beyond the mere guarantee of (fair) access to the labour market. i

The Conception of the Right to Work

The ratio of Article 1 reflects an undeniable functionalist approach. The right to work is, in fact, conceived above all as a right of access to the labour market, with the (explicit) aim of encouraging full employment and the (implicit) aim of increasing the productivity and competitiveness of States. Therefore, in this respect, Article 1 supports the mercantilist conception of work that is

2 For a reconstruction of the decision-​making practice of the ecsr, Council of Europe, Digest of the case law of the European Committee of Social Rights, December 2018. 3 At the international level, this need has long been recognised by the ‘ilo. Cfr. Leah Vosko, “‘Decent Work’: The Shifting Role of the ILO and the Struggle for Global Justice”, Global Social Policy, 2, 1, 2002, p. 26.

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also well-​known in the regulatory processes and legal practice of the European Union.4 Thus, labour capacity is protected, i.e. the commodity owned by the worker, which allows for a free and dignified life in market economies.5 At the same time, Article 1 and, above all, the ecsr’s decision-​making practice have established limits to the commodification of labour, in alignment with the ilo’s core labour standards on the prohibition of discrimination and forced labour. Interpreting Article 1, however, presents some difficulties in accommoda­ ting a more modern conception of work, i.e., understood as decent work. The focus of the provisions is not on the protection of working conditions, to which Article 2 is devoted, but instead on the imposition on States towards a specific regulation of the labour market. This market is conceived as a “social institution”6 organised and controlled by national instruments of active and passive policy and by a system of minimum guarantees for the workforce. Therefore, the labour market must not be left to self-​regulating economic forces, as advocated by neo-​liberal theories,7 but rather be regulated by a legal system that guarantees the accessibility and acceptability of work.8 In the labour market, the worker is understood as an actor without a duty to work.9 On the other hand, there is no obligation on the States Parties to guarantee work for their citizens. Therefore, it is clear that Article 1 assimilates

4 On these aspects, profusely, Patrizia Tullini, “Concorrenza ed equità nel mercato europeo: una scommessa difficile (ma necessaria) per il diritto del lavoro”, Rivista Italiana di Diritto del Lavoro, 2, 2018, pp. 199–​233; Eduardo Ales, “Il modello sociale europeo dopo la crisi: una mutazione genetica?”, Diritti Lavori Mercati, 3, 2017, pp. 485–​494; Tania Novitz, “The Paradigm of Sustainability in a European Social Context: Collective Participation in Protection of Future Interests?”, International Journal of Comparative Labour Law and Industrial Relations, 31, 3, 2015, pp. 256–​257; Simon Deakin, “The Lisbon Treaty, the Viking and Laval Judgement and the Financial Crisis: In search of New Foundations for Europe’s Social Market Economy”, in Niklas Bruun, et al. (eds.), The Lisbon Treaty and Social Europe, Hart, 2012, p. 19 ff. 5 Simon Deakin, “The Right to Work”, in Niklas Bruun, et al. (eds.), The European Social Charter and the Employment Relation, 2019, p. 148–​151. The author refers to the « right to access the labour market under particular conditions » (p. 151). 6 Karin Lukas, “The Right to Work”, in Karin Lukas, The Revised European Social Charter. An Article by Article Commentary, Elgar Commentaries, Elgar, 2021, p. 31. 7 Colin Crouch, “The Neo-​ Liberal Turn and the Implications for Labour”, in Adrian Wilkinson, Geoffrey Wood, and Richard Deeg (eds.), The Oxford Handbook of Employment Relations: Comparative Employment Systems, 2014, p. 589 ff.; Kimberly Ann Elliot, Richard B. Freeman, “Yes, Labour Standards and Globalization Go Together!”, Labour History, 45, 4, 2004, p. 529–​535. 8 Simon Deakin, cit., p. 149. 9 Fuchs A Paz, “The right to work and the duty to work”, in Virginia Mantouvalou (ed.), cit.

74 Giovannone the capitalist conception10 of the right to work that underpins the national constitutions of the West. In fact, workers do not enjoy an individual (and, therefore, justiciable) right to employment; instead, they depend on the ‘aliena­tion of their labour’ to achieve well-​being for themselves and their families. Ultimately, national policies are called upon to protect the power of workers to act in the labour market in a way that is easy, free of constraints and fair compared to their competitors. The centrality assumed by public policies was already clear in the first draft of the Charter, in which Article 1 foresaw the commitment of states to guarantee a system of sustainable investments for the achievement of full employment and the fight against unemployment.11 Thus, even though the draft initially placed this right in Article 2, the general duty of States in matters of vocational guidance and training was included in the final version of Article 1 in the Charter of 1961, which was substantially drafted by the Committee of Ministers in 1959. The 1995 Revised Charter did not change Article 1. However, in the past, the possibility of explicitly including the prohibition of discrimination in access to employment and the right of prisoners to work was discussed.12 This is because the time was probably not yet ripe for revising the operative text in order to orient it more towards the coefficients of decent work, which imposes the guarantee of a minimum set of protections regardless of aims that are out of step with protecting the dignity of the worker and the social sustainability of the globalised economy. ii

Article 1 § 1: Full and Stable Employment

Several priority measures of the Turin Process Action Plan are intended to strengthen national implementation of the Charter. Indeed, the primary responsibility for the realization of the Charter’s rights to improve the well-​ being of individuals lies with the national authorities, whether legislative, executive or judicial. In this respect, the envisaged developments are either

10 11 12

On the contrasting conceptions of work in the capitalist and communist systems, David Ziskind, “Finger-​Prints on Labour Law: Capitalist and Communist”, Comparative Labour Law, 4, 2, 1981, pp. 99–​114. Council of Europe, Parliamentary Assembly, European Social Charter and European Economic and Social Council, Motion for a recommendation tabled by the Social, Health and Family Affairs Committee, Doc. 403, 26 October 1955, p. 3. Karin Lukas, “The Right to Work”, cit., pp. 32–​33.

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adapted to the different national authorities responsible for implementation (A) or are aimed indiscriminately at all the actors likely to play a role in the protection of social rights at national level (B). The Nature of State Obligations A Article 1 § 1 specifies that States undertake to accept as their primary objectives and responsibilities the achievement and maintenance of high and stable employment levels as far as possible. Indeed, the efforts of states to achieve these objectives must be assessed by taking into account their economic situa­ tion and national unemployment levels. This provision requires States to adopt economic policies to pursue this goal and, in parallel, appropriate measures to support unemployed persons in finding employment and obtaining vocational qualifications. This is an obligation of means/​conduct and not of result, since the failure of the State to achieve high levels of employment does not imply non-​compliance with the provision13 since the Committee must recognise a substantial effort to improve the situation of the domestic labour market. Therefore, it is clear that Article 1 § 1 does not establish an individual right to employment.14 Several social and economic indicators punctuate the decision-​making practice of the ecsr, which has been adopted to assess States’ compliance with this provision. In particular, they detect obstacles related to national poli­ cies, ranging from the international economic trends to further complexities in effectively combating unemployment. Therefore, indicators related to the national economic situation (gdp growth, inflation, employment growth), the employment pattern (employment rate, proportion of part-​time and fixed-​ term work), and the structure and level of unemployment are used. In addition, particular attention is paid to vulnerable groups such as young people, the long-​term unemployed, persons belonging to minorities and persons with disabilities.15 Based on these indicators, the Committee assesses the national policies outlined in the legal commitments as well as the proclaimed commitments to full employment. The assessment also takes into account empirical findings on the implementation results of state efforts, as well as the resources deployed. Thus, for example, the number of actual jobs created, the average length of 13 14 15

ecsr, Conclusions i (1969), Statement of Interpretation on Article 1 § 1. ecsr, Conclusions iii (1973), Statement of Interpretation on Article 1 § 1. ecsr, Conclusions 2002, Statement of Interpretation on Article 1 § 1. See also, ecsr, Conclusions ii (1971), Statement of Interpretation on Article 1 § 2; Conclusions xvi-​1 (2002), Statement of Interpretation on Article 1 § 2.

76 Giovannone unemployment periods before participation in State measures,16 or expenditure as a percentage of gdp, and the distribution of resources between active and passive measures17 are all considered. Therefore, the Committee’s assessment is aimed at evaluating the effectiveness of national labour market policies, appreciating their strategic clarity, targeting, and constant monitoring. Clearly, as a duty of conduct, broad discretion is left to States in implementing national policies. However, the flexibility in the rule’s implementation has not prevented the ecsr from declaring States non-​compliant with Article 1 § 1, in several circumstances where national policies have been ineffective, insufficient, or not assessable concerning the pursuit of full employment:18 where not enough people have been involved in active policy measures;19 where States have failed to invest in active policies20 and monitoring results;21 or because of States’ failure to establish the effectiveness of labour market interventions.22 The Committee’s thematic reporting contains multiple assessments of national policies adopted in the context of the economic crisis, characterised by spending review strategies and, by contrast, reduced investment in employment and social policies.23 Above all, the Committee has often softened its assessments of full employment by focusing on the full employability generated by national measures. In this sense, despite the negative data on real employment, the Committee has given particular weight to active policies and income support measures that create the conditions for people to be employable to avoid conclusions of non-​conformity to the Charter.24 However, it is worth remembering that the economic crisis cannot justify the impoverishment of the protections imposed by the Charter. In 2009, the Committee itself pointed out that «the economic crisis should not have as a consequence the reduction of the protection of the rights recognised by the Charter».25 16 17 18 19 20 21 22 23 24 25

ecsr, Conclusions 2012, Albania. ecsr, Conclusions 2002, Italy. ecsr, Conclusions xvi-​1 (2002), Netherlands (Netherlands Antilles and Aruba). ecsr, Conclusions 2004, Bulgaria. ecsr, Conclusions xvi-​1 (2002), Poland; ecsr, Conclusions 2012, Armenia. ecsr, Conclusions 2012, Albania, Italy. ecsr, Conclusion 2012, Slovakia; ecsr, Conclusions 2012, Bosnia-​Herzegovina, Bulgaria, Georgia, Italy, Moldova, Turkey. Among all, ecsr, Conclusion xx-​1 (2012), Greece. Henrik Kristensen, “Right to employment”, in Niko Johanson, Matti Mikkola (eds.), Reform of the European Social Charter. Seminar presentations, Ministry for Foreign Affairs of Finland, 2011, p. 73. ecsr, Conclusions xix-​2 (2009), § 15. On this point, Nikolaos A. Papadopoulos, “Revisiting the Preamble of the European Social Charter: Paper Tiger or Blessing in Disguise?”, Human

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Generally speaking, the right to work, enshrined in Article 1 § 1, has a predomi­nantly programmatic and abstract character since it is highly dependent on the socio-​economic contingencies of the State and subject to the Committee’s evaluation. In these terms, the right to work enshrined therein is not understood as a positive right but as a negative right aimed at removing obstacles to the effective exercise of work and other freedoms and rights (equal treatment, health and safety at work, etc.). As a negative right, therefore, it represents a right of social freedom supported by certain specific guarantees.26 Conversely, the obligations on States to remove these obstacles are positive. B Article 1 § 1 in the Light of European Union Policies Scholarship points out that Article 1 § 1 was influenced by the Keynesian period in which States believed that macroeconomic policies were able to reduce unemployment.27 The same scholarship also illustrated the consistency of this approach with EU policies since the 1990s, especially in relation to economic interventionism and an emphasis on active policies.28 However, the mercantilist approach of EU policies has also generated deregulation processes in the European Employment Strategy (ees), especially in response to the economic crisis that erupted in 2008. In fact, the ees focuses on labour market policies without addressing the reformist needs of labour law, tracing the shift from employment protection to employment promotion. Indeed, since the 1990s, “[a]‌n economically oriented employment discourse replaced a rights-​focused

26 27 28

Rights Law Review, 2021, 00, pp. 1–​21; Nikolaos A. Papadopoulos, “Austerity-​Based Labour Market Reforms in Greece v. Fundamental Rights in the Aftermath of the European Debt Crisis: An Analysis of Supranational and National Bodies’ Jurisprudence”, European Public Law, 26, 421, 2020, pp. 440–​447. Federico Olivieri, “La Carta sociale europea tra enunciazione dei diritti, meccanismi di controllo e applicazione nelle corti nazionali. La lunga marcia verso l’effettività”, Rivista del Diritto della Sicurezza Sociale, 3, 2008, pp. 509–​540. Simon Deakin, cit., p. 156. On EU employment policies, Sally Ball, “The European Employment Strategy: The Will But Not the Way?”, Industrial Law Journal, vol. 30, No. 4, 2001, pp. 353–​374; Simon Deakin, Ralf Rogowski, “Reflexive Labour Law, Capabilities and the Future of Social Europe”, in Ralf Rogowski, Robert Salais, Noel Whiteside (eds.), Transforming European Employment Policy –​Labour Market Transitions and the Promotion of Capability, Cheltenham, Elgar 2011, pp. 229–​254; Simon Deakin, “Social policy, economic governance and Emu: alternatives to austerity”, Rivista Giuridica del Lavoro e della Previdenza Sociale, No. 4, 2018, p. 589.

78 Giovannone social policy discourse”. This replacement took place through a strategic shift to the flexicurity model, which, however, was abandoned over time.29 Even the last phase of European social policy development, associated with the introduction of the European Pillar of Social Rights (epsr), is still firmly focused on employment promotion. From a legal point of view, it could be said that the epsr, since it does not enshrine any new or better-​articulated principles, does not contain any enforceable rights but practises a sort of compilation of the rights contained in previous European documents such as the European Social Charter.30 However, the epsr does indeed represent a programme of action which is instrumental to the realisation of the rights enshrined in the esc (and cfreu), rather than a dangerous duplication that risks watering down the standards imposed by the Charter.31 In short, the Pillar could make a difference in terms of substantive protections through the implementation acts. However, such an instrument does not seem to revolutionise the concept of work as an autonomous value inscribed within the framework of fundamental human rights, given its primary purpose of strengthening the “highly competitive social market economy”.32 iii

Article 1 § 2: Free Labour and Prohibition of Discrimination

Under Article 1 § 2, States must effectively protect the right of the workers to earn their living by freely exercised employment. To support a broader interpretation,33 this provision provides for the prohibition of all forms of discrimi­ nation in employment, forced and compulsory labour; and any practice that may interfere with exercising this right. This interpretation is supported by a combined reading of Article 1 with the Preamble of the Charter, according to which it is necessary to safeguard “the maintenance and further realisation of human rights and fundamental freedoms”, in the knowledge that “the enjoyment of social rights should be secured without discrimination”. Furthermore,

29

Ralf Rogowski, “The European Employment Strategy, the European Social Pillar and their Impact on Labour Law Reform in the European Union”, Journal of Comparative Labour Law and Industrial Relations, vol. 35, No. 3, 2019, pp. 283–​304. 30 e.g. Ibid., p. 298. 31 Sacha Garben, “The European Pillar of Social Rights and the European Social Charter”, No. 1, 2020, Europe of Rights & Liberties/​Europe des Droits & Libertés, p. 66. 32 Preamble, § 1. 33 ecsr, Conclusions ii (1971), Statement of Interpretation on Article 1 § 2; ecsr, Conclusions xvi-​1 (2002), Statement of Interpretation on Article 1 § 2.

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the principle of non-​discrimination penetrates all articles of the Revised Charter under Article E. The Prohibition of Discrimination A Any discrimination34 on the grounds of sex, race, ethnic origin,35 religion, disability, age,36 sexual orientation, political opinion, and conscientious objection is prohibited.37 Adding to this list, the Committee has also prohibited forms of discrimination concerning certain types of contracts by imposing an obligation on States to protect part-​time workers against discrimination compared to full-​time workers.38 The material scope of application is equally extensive. All forms of discrimination vis-​à-​vis employment and working conditions (training, remuneration, transfer, dismissal, etc.) are prohibited.39 In protecting workers from discrimination, the Committee has also declared non-​conformity in the case of a State’s passive attitude. This is the case in the following examples: where there is no legal power to annul, repeal or amend any provision contrary to the principle of equal treatment in collective agreements, contracts of employment, and company regulations;40 where there is no provision to protect workers against retaliatory dismissal;41 where there is no legal obligation on employers to make reasonable accommodation for persons with disabilities.42 It follows that States are called upon to take an active stance to prevent discrimination at work.43 34 35

36 37 38 39 40 41 42 43

Eduardo Ales, “Article 1 ESC (rev): The Right to Work”, in Eduardo Ales et al. (eds.), International and European Labour Law, Nomos/​Hart, 2018, pp. 253.254. Centre on Housing Rights and Evictions (COHRE) v. Italy, complaint No. 58/​2009, decision on the merits of 25 June 2010, § 39, in which, among other things, the Committee cites the case law of the echr (Orsus v. Croatia, app. No. 15766/​03, judgment of 16 March 2010, §§ 147–​148). Fellesforbundet for Sjøfolk (FFFS) v. Norway, complaint No. 74/​2011, Decision on the merits of 2 July 2013, § 115–​117; Greek General Confederation of Labour (GSEE) v. Greece, complaint No. 111/​2014, Decision on the merits of 23 March 2017, Resolution cm/​ResChS(2017)9. ecsr, Conclusions 2006, Albania; ecsr, Conclusions 2012, Iceland, Moldova and Turkey; ecsr, Confederazione Generale italiana del Lavoro (CGIL) v. Italy, complaint No 91/​2013, decision on the merits of 12 October 2015, § 238. ecsr, Conclusions xvi-​1 (2002), Austria. ecsr, Conclusions xvi-​1 (2002), Austria; ecsr, Confederazione Generale italiana del Lavoro (CGIL) v. Italy, complaint No 91/​2013, decision on the merits of 12 October 2015. ecsr, Conclusions xvi-​1 (2002), Iceland. ecsr, Conclusions xvi-​1 (2002), Iceland; ecsr, Syndicat de Défense des fonctionnaires v. France, complaint No. 73/​2011, decision on the merits 13 September 2012, § 59. ecsr, Conclusions 2020, Azerbaijan. Karin Lukas, “The Collective complaints Procedure of the European Social Charter: Some Lessons for the EU?”, Legal Issues of Economic Integration, vol. 41, No. 3, 2014, p. 281.

80 Giovannone In addition to taking preventive measures, States must ensure adequate remedies in the event of discrimination. In this regard, the Committee’s decision-​making practice has emphasised that non-​compliance with Article 1 § 2 stems from the limitations on remedies for employees who have suffered discrimination. As a general rule, remedies must be adequate and proportio­ nate to the damage suffered and dissuasive for employers.44 Thus, in the event of compensation, it is not permissible to set a ceiling that would lead to non-​compliance with these parameters.45 In addition, States are required to recognise the right of trade unions –​and associations concerned46 –​to act in cases of discrimination at work, including on behalf of individuals.47 Finally, domestic law should provide a reversal of the burden of proof in favour of the plaintiff in legal proceedings on discrimination.48 Based on these indications, the Committee assesses compliance with Article 1 § 2 by considering all preventive, protective and assistance measures, and statistics on discrimination cases brought and won before the courts and competent bodies.49 All forms of direct and indirect discrimination shall be prohibited.50 Direct discrimination is defined as a difference in treatment between persons in comparable situations on a certain prohibited ground, where differentiation does not pursue a legitimate aim, is not based on objective and reasonable grounds, or is not proportionate to the aim pursued.51 On the other hand, indirect discrimination refers to those measures and practices that are applied in the same way to everyone but which indirectly have disproportionate effects on persons with specific characteristics.52 In this respect, the State does not comply with

44 45 46 47 48 49 50 51 52

ecsr, Conclusions 2020, Austria. ecsr, Conclusions 2012, Andorra; ecsr, Conclusions 2020, Armenia; ecsr, Conclusions 2020, Turkey. ecsr, Conclusions 2020, Turkey. ecsr, Conclusions xvi-​1 (2002), Iceland. ecsr, Conclusions 2002, France; ecsr, Syndicat de Défense des fonctionnaires v. France complaint No. 73/​2011, decision on the merits 13 September 2012, § 59. escr, Conclusions 2020, Czech Republic. ecsr, Conclusions xviii–​i (2006), Austria. ecsr, Syndicat national des professions du tourisme v. France, complaint No. 6/​1999, decision on the merits of 10 October 2000, § § 24–​25. ecsr, Centre on Housing Rights and Evictions (COHRE) v. Italy, complaint No. 58/​2009, decision on the merits of 25 June 2010, § 35; ecsr, International Federation of Human Rights (FIDH) v. Belgium, complaint No. 62/​2010 decision on the merits of 21 March 2012, § 49; ecsr, Médecins du Monde v. France, complaint No. 67/​2011 decision on the merits of 11 September 2012, §§ 107,132,144,153 and 163; ecsr, Associazione sindacale ‘La Voce dei Giusti’ v. Italy, Compliant No. 105/​2014, decision on the merits of 14 October 2016, §§ 63–​81.

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Article 1 § 2 if it fails to take differences into account or cannot adopt measures to ensure accessibility to collective rights and advantages for all.53 The Committee has also paid particular attention to discrimination in access to employment on the grounds of citizenship and political orientation. More specifically, in relation to the rights of job-​seeking migrants, the State may not prohibit nationals of the States Parties from exercising a particular occupation, apart from the exceptions regulated by Article G of the Charter (e.g. in public administration due to the protection of the public interest and national security).54 It is clear, in any event, that Article 1 § 2 does not impose free movement of persons, leaving the State the discretion to provide work permits. Secondly, the same exceptions in Article G are granted to exclude persons from employment functions because of their past political activities. Thus, the functions to which these exceptions apply are tied to positions of responsibi­ lity in the field of public order and national security.55 The prohibition of discrimination in Article 1 actually pervades the entire protective framework of the Charter, more or less explicitly. By way of example, this prohibition is expressed in Article 9 (right to vocational guidance), Article 10 (right to vocational training), and Article 15 (rights of persons with disabilities). B The Prohibition of Forced and Compulsory Labour The prohibition of forced and compulsory labour also follows from Article 1 § 2. As defined in Article 2 of ilo Convention No. 29/​1930, and in line with the interpretation of forced labour in Article 4 echr,56 States are obliged to prohibit “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself 53 54 55 56

ecsr, International Association Autism-​Europe (IAAE) v. France, complaint No. 13/​2002, decision on the merits of 4 November 2003, § 52. ecsr, Conclusions 2006, Albania; ecsr, Conclusions 2012, Albania; escr, Conclusions 2020, Albania; ecsr, Conclusions 2020, Armenia. ecsr, Conclusions 2006, Lithuania. The ECtHR has interpreted the concept of slavery and forced labour on the basis of the ilo Convention No. 29 (ECtHR, 23 November 1983, Van der Mussele v. Belgium, No. 8919/​80, § 32), of the 1926 Slavery Convention (ECtHR, 26 July 2005, Siliadin v. France, No. 73316/​01, § 122), of the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (ECtHR, 11 October 2012, CN and V. v. France, No. 67724/​09, § 90), of Council of Europe Convention on Action against Trafficking in Human Beings and the 2000 Protocol for the Prevention, Suppression and Punishment of Trafficking in Persons, Particularly Women and Children, supplementing the United Nations Convention against Trafficking transnational organized crime (ECtHR, 7 January 2010, Rantsev v. Cyprus and Russia, No. 25965/​04, § 282).

82 Giovannone voluntarily”. Generally, the principle of effectiveness applies to the extent that, where national legislation on the prohibition of forced labour exists, though not implemented in practice, the escr is likely to reach a finding of non-​ conformity with the Charter.57 For this reason, the Committee has required States to adopt measures of prevention, protection and assistance. In the first area, States must strengthen the effectiveness of labour inspectorates in combating all forms of forced labour58 and adopt additional preventive measures such as data collection, awareness-​raising campaigns as well as training for professionals, law enforcement agencies, employers, and vulnerable groups of the population.59 In the second area, effective remedies and assistance to victims for their physical, psychological and social rehabilitation must be ensured.60 In the past, the Committee has expressed its views on several practical cases relating to specific areas –​maritime and military work –​in which workers’ freedom of choice often formally yields to reasons of national security and public order. More specifically, the State does not comply with Article 1 § 2 in the case of sanctions, including criminal sanctions, for the disciplinary conduct of seafarers who abandon their posts, even if a ship’s safety or the health and life of individuals is not at risk.61 On the other hand, regarding military work, the discretion of the Ministry of Defence in extending the period of retirement caused by previous training periods provided to army officers which may constitute a violation of Article 1 § 2, if the period of service is excessively long and therefore incompatible with the freedom to choose and leave an occupation.62 In addition, the exceptions of Article G cannot cover generically defined periods of requisition in exceptional circumstances and therefore are contrary to Article 1 § 2.63 Finally, excessive periods of conscription are not permitted for those who wish to avoid compulsory military service.64 Another area of non-​conformity is prison labour, whose conditions must be as similar as possible to those of other regular, paid workers. Therefore, the Committee emphasised that the working conditions of prisoners must be 57 58 59 60 61 62 63 64

ecsr, Conclusions xiii-​3 (1993), Ireland; escr, Conclusions 2020, Ukraine. ecsr, Conclusions 2020, Austria. ecsr, Conclusions 2020, Lithuania. Among all, ecsr, Conclusions 2020, Austria, Albania, Lithuania, Andorra. ecsr, International Federation of Human Rights Leagues (FIDH) v. Greece, complaint No. 7/​2000, decision on the merits of 5 December 2000, § 22; ecsr, Conclusions 2012, Portugal. ecsr, Conclusions 2004, Ireland; ecsr, Conclusions 2012, Ireland. ecsr, Conclusions xvi-​1 (2002), Greece. ecsr, Quaker Council for European Affairs (QCEA) v. Greece, complaint No. 8/​2000, decision on the merits of 25 April 2001.

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adequately regulated, especially when prisoners work for employers outside the prison services. Regarding the sources of regulation, and in accordance with the principle of non-​discrimination, working conditions must be regulated by law or through agreements and regulations and must cover pay, all aspects of working conditions, and social protection.65 Conditions for Social Security Benefits and the Prohibition of Labour Exploitation The systematic interpretation between Article 1 § 2 and Article 12 of the Charter is used to determine the legitimacy of the conditions imposed on social security benefits. In other words, work required to benefit from social security benefits must comply with the standards normally applied to pay, and terms and conditions of employment. Similarly, the request to accept work must not prevent beneficiaries from freely choosing a job or profession. In the absence of these requirements, work conditionality constitutes a form of labour exploitation. Based on these assumptions, the Committee has declared non-​compliance with Article 1 § 2 in several circumstances: where the work requires skills or qualifications well below those possessed by the individual; physical or mental conditions not possessed; or, where the work violates the dignity and integrity of the person or imposes unreasonable travel constraints.66

C

D New Frontiers in the Protection of Free Labour In line with the interpretation of Article 4 echr within the ECtHR’s Siliadin Judgment,67 and considering the Council of Europe Convention on Action against Trafficking in Human Beings, the prohibition of forced and compulsory labour was also extended by the Committee to situations of labour exploitation.68 Based on this assumption, the Committee recognised non-​compliance in cases where States do not provide adequate protection for domestic workers and family business workers,69 in line with the requirements of ilo Convention No. 189/​2011.70 Indeed, especially in 2016, the Committee focused 65

ecsr, Conclusions 2012, General Introduction, Statement of Interpretation on Article 1 § 2; ecsr, Conclusions xvi-​1 (2002), Germany. 66 ecsr, Conclusions 2012, General Introduction Statement of Interpretation on Article 1 § 2; ecsr, Conclusions 2020, Austria. 67 ECtHR, 26 July 2005, Siliadin v. France, No. 73316/​01. 68 Among all, ecsr, Conclusions 2020, Czech Republic, recalling the judgment of the ECtHR, 30 March 2017, Chowdury and Others v. Greece, No. 21884/​15, § 104. 69 ecsr, Conclusions 2008, Statement of Interpretation on Article 1 § 2. 70 The reference to ilo Convention 189/​2011 was reiterated in the 2020 Conclusions. Among others, ecsr, Conclusions 2020, United Kingdom.

84 Giovannone on domestic work characterised by abusive, degrading and inhuman living and working conditions.71 Given the broadening of the prohibition of forced labour to include new forms of slavery, such as the exercise of property rights over the worker, and servitude, the provision of services under coercion, exploitation or aggravated forced labour, the Committee’s position on forced labour in domestic settings values the Charter as a living instrument. Nevertheless, this is still a contemporary scourge that affects many areas beyond domestic and family work, such as agriculture,72 even in developed countries. Especially in these areas of activity, there is the exploitation of migrant workers, often in irregular conditions. The Committee’s call for access to the remedies system for irregular migrants in cases of forced labour is therefore essential. Above all, the Committee reite­ rated that it relies on ECtHR jurisprudence –​expressly citing the Siliadin and Chowdury cases –​to interpret Article 1 § 2.73 More specifically, the ecsr pointed out that labour exploitation is one of the forms of exploitation covered by the definition of human trafficking under the above-​mentioned Convention on Action.74 In the Committee’s view, the violation of the right to privacy is one of the many aspects that can undermine the worker’s right to earn a living from a freely chosen job. Specifically, Article 1 § 2 includes in its scope the right to protection from interference with private life and, consequently, the right to a clear distinction between life and work. As early as 2006, the Committee highlighted the need to protect workers’ privacy from the misuse of new electronic communications and modern data collection techniques.75 Later, in 2012, it reiterated this need also in relation to ubiquitous surveillance systems of workers. 71 Conclusions xx–​i (2012), General Introduction, General Questions. 72 On the prevalence of labour exploitation in agriculture in the Mediterranean region, Alessandra Corrado, Carlos De Castro, Domenico Perrotta (eds.), Migration and Agriculture. Mobility and change in the Mediterranean area, Routledge, 2017. Particularly emblematic is the Italian situation, where the practice of “caporalato” persists, i.e. the exploitation of workers, especially immigrants, by illegal labour brokers and managers (the so-​called “caporali”). On this point, Letizia Palumbo, Trafficking and labour exploitation in domestic work and the agricultural sector in Italy, European University Institute, 2017; Domenico Perrotta, “Processing tomatoes in the era of the retailing revolution: mechanization and migrant labour in northern and southern Italy”, in Alessandra Corrado, Carlos De Castro, Domenico Perrotta (eds.), cit., p. 58 ff. 73 ecsr, Conclusions 2020, Austria. 74 Explanatory Report accompanying the Council of Europe Anti-​Trafficking Convention, and Chowdury and Others, §§ 85–​86 and 89–​90. 75 ecsr, Conclusions 2006, Statement of Interpretation on Article 1 § 2.

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In this respect, it is worth noting how Article 1 § 2 lends itself to an extensive and progressive interpretation regarding the new needs for protection at work. The issue of the right to privacy at work has emerged in the face of new work organisation models that have generated a still unresolved paradox, i.e. the increase in autonomy and flexibility at work to facilitate work-​life balance is correlated with the intensive use of control and surveillance that instead invades the worker’s living space.76 In these terms, although born as a civil right, the right to privacy has invaded the field of social law, mainly driven by the labour side. On closer inspection, this is the umpteenth demonstration of the anachronism of conceptually distinguishing civil and social rights. As is well known, also on the EU front, an incisive legislative intervention was necessary –​the EU General Data Protection Regulation (gdpr) –​which intended to regulate hierarchical control in the employment relationship through the use of technology and brought the protection of personal data within the scope of employer prerogatives. This regulatory intervention has prompted reformist processes on the subject within the national systems of European States.77 Besides the intervention of the European Union, the right to privacy at work has been recognised at the international level,78 including supranational courts such as the ECtHR.79 Moreover, protecting workers’ privacy exploded again with the Covid-​19 pandemic, when limitations on work attendance dramatically increased remote monitoring.80 76 77

78 79

80

François-​Xavier De Vaujany et al., “Control and Surveillance in Work Practice: Cultivating Paradox in ‘New’ Modes of Organizing”, Organization Studies, 42, 5, 2021, pp. 675–​695. Antonio Aloisi, Elena Gramano, “Artificial Intelligence Is Watching You at Work: Digital Surveillance, Employee Monitoring, and Regulatory Issues in the EU Context”, Comparative Labour Law & Policy Journal, 41, 1, 2019, pp. 95–​122. On the possible tightening of the hierarchical relationship through control and surveillance, Phoebe V. Moore, Martin Upchurch, Xanthe Whittaker, “Humans and Machines at Work: Monitoring, Surveillance and Automation in Contemporary Capitalism”, in Phoebe V. Moore, Martin Upchurch, Xanthe Whittaker (eds.), Humans and Machines at Work: Monitoring, Surveillance and Automation in Contemporary Capitalism, London, Palgrave Macmillan, 2018, pp. 1–​16. See above all ilo, Protection of workers’ personal data. ilo Code of Practice, Geneva, 1997. ECtHR, 5 October 2010 [dec], Köpke v. Germany, No. 420/​07; ECtHR, 5 September 2017, Bârbulescu v. Romania, No. 61496/​08; ECtHR, 17 October 2019, López Ribalda and others v. Spain, No. 1874/​13 and 8567/​13. For a reconstruction, Isabel Ebert, Isabelle Wildhaber, Jeremias Adams-​Prassl, “Big Data in the workplace: Privacy Due Diligence as a human rights-​based approach to employee privacy protection”, Big Data & Society, 8, 1, 2021, 1–​14; Frank Hendrickx, “Privacy 4.0 at Work: Regulating Employment, Technology and Automation”, Comparative Labour Law & Policy Journal, 41, 1, 2019, 147–​172. Paul M. Leonardi, “Covid-​19 and the new technologies of organizing: Digital exhaust, digital footprints, and artificial intelligence in the wake of remote work”, Journal of Management Studies, 58, 2021, pp. 249–​253.

86 Giovannone However, the fragmentary nature of the protection rules in supranational (and national) instruments calls for coordination between the multilevel legal regimes within which the Committee’s decision-​making practice on Article 1 § 2 of the Charter can also be incorporated. This is urgently needed, both for the universal protection of labour, and, depending on the regime applicable in the host territories because of the burden on multinational companies to align their internal organisation with the regulatory jungle on privacy. Finally, it is interesting to note that in 2020 the Committee clearly introduced the notion of due diligence on labour exploitation in its conclusions. In fact, the decision-​making body asked States for clarification on national measures obliging companies to report on actions taken to combat forced labour and labour exploitation along their supply chains. In addition, states must provide precautionary measures in public procurement procedures “to guarantee that funds are not used unintentionally to support various forms of modern slavery”.81 It is worth pointing out that these requests intercept the legislative debate, at the national and European level, on the opportunity to introduce a mandatory duty of care for companies to protect human (and environmental) rights in transnational supply chains. More specifically, following the suggestion offered by the new French institution of the devoir de vigilance,82 the European institutions have also started a legislative process for the adoption of an EU act imposing the obligation of transparency and traceability of global supply chains.83 In this evolving context, the extension of the subjective scope of applying the protections of Article 1 § 2 esc to workers involved in supply chains could also contribute to the codification of Corporate Social Responsibility (csr) of a voluntary nature and the extension of labour protections on a transnational level.84

81 82 83 84

ecsr, Conclusions 2020, Albania; escr, Conclusions 2020, Andorra. Law no. 2017–​399 which modifies the “Code de commerce”. Legislative initiative procedure 2020/​2129(inl). Among the extensive doctrine on the subject, Lez Rayman-​Bacchus, David Crowther (eds.), Perspectives on Corporate Social Responsibility, Taylor & Francis Group, 2016; Catherine Malecki, Corporate Social Responsibility. Perspectives for Sustainable Corporate Governance, Edward Elgar Publishing, 2018; Maria Giovannone, cit., p. 254 ff; Nacer Gasmi, Corporate Innovation Strategies. Corporate Social Responsibility and Shared Value Creation, Innovation, Entrepreneurship, Management Series, 33, Wiley, 2021. On the duty of supervision of multinational companies, Tatiana Sachs, “La loi sur le devoir de vigilance des sociétés mères et sociétées donneuses d’ordre: les ingrédients d’une corégulation”, Revue de Droit du Travail, 6, 2017, pp. 380–​390; Antoine Lyon Caen, “Verso un obbligo legale di vigilanza in capo alle imprese multinazionali”, Rivista giuridica del lavoro e della previdenza sociale, 2, 2018, pp. 240–​249.

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87

Article 1 § 3: Free Employment Services for All Workers

Article 1 § 3 and Article 1 § 4 include closely related and consequential active policy obligations. Under Article 1 § 3, States are obliged to offer employment services to the unemployed, jobseekers and workers seeking new employment available, free of charge. This obligation must be guaranteed with a minimum level of effectiveness to accompany workers in the employment transition.85 Public employment services must be free of charge. The Committee found that Article 1 § 3 was not complied with when employers were charged for notifying job vacancies, even if this was motivated by administrative costs.86 The obligation to guarantee these public services does not exclude the private agencies operating in this area, provided two conditions are met: the private agencies must not impose costs, and the State must guarantee a free placement service in every geographical area and for every productive sector.87 In addition, the support for the “mixed” placement system is reinforced by the possibility for social partners to play a role in the organisation and implementation of placement services.88 Similar to the techniques used to assess compliance with Article 1 § 1, the Committee has developed a number of parameters for assessing the efficiency of such services. These include the relationship between placements made through the job centres to the total number of notified vacancies (placement rate) and the market shares of public and private services.89 v

Article 1 § 4: Vocational Guidance and Training

According to Article 1 § 4, States must provide both vocational guidance and training for the employed and unemployed, as well as special guidance for persons with disabilities.90 Under the principle of equal treatment and the prohibition of discrimination, this obligation also requires access to these services for the often excluded most vulnerable categories of people –​de jure or de facto –​from active policy

85 86 87 88 89 90

ecsr, Conclusions 2012, Statement of Interpretation on Article 1 § 2; ecsr, Conclusions xiv-​1 (1998), Statement of Interpretation on Article 1 § 3. ecsr, Conclusions xiv-​1 (1998), Statement of Interpretation on Article 1 § 3. ecsr, Conclusions xiv-​1 (1998), Turkey. ecsr, Conclusions xv-​1 (2000), Poland. ecsr, Conclusions xiv-​1 (1998), Greece. ecsr, Conclusions 2003, Bulgaria.

88 Giovannone systems. These services must be guaranteed to indigenous nationals as well as working and legally resident citizens of other States Parties to the Charter.91 States are prohibited from imposing a residence period on foreign and legally resident students and learners in this respect.92 Equal treatment in training must also be guaranteed for people with disabilities.93 This obligation is linked to those provisions of the Charter which are lex specialis, namely Article 9 on vocational guidance, Article 10 § 3 on vocational training, and Article 15 § 1 on the rights of persons with disabilities. Therefore, as already pointed out, if the State has not accepted these provisions, its conduct will nevertheless be assessed on the basis of Article 1 § 4, in relation to the general aspects covered by that provision.94 In order to assess the effectiveness of vocational guidance and training services, the Committee has developed objective and quantitative evaluation criteria. These include the funds allocated, the resources deployed and the number of beneficiaries.95 The ability of Article 1 of the Charter to intercept the new needs for protection at work has already been examined in relation to new forms of labour exploitation and the right to privacy. Similarly, urged by the weak connection and balance between protections in the employment relationship and protections in the labour market, the obligation to provide vocational guidance and training –​also as continuous training and with attention to vulnerability factors –​is a central issue in today’s political and doctrinal debate in the labour field. Indeed, we are witnessing an increased need for professionalism and new skills in the face of the green, digital and intergenerational transition that is affecting the international and, above all, the European labour market. In this regard, national policies are finding it hard to set up an effective system for taking charge, qualification/​re-​qualification and placement, also through a virtuous partnership between the public employment service, the social partners, and private operators.96 91 92 93

94 95 96

ecsr, Conclusions 2012, Georgia; ecsr, Conclusions xii-​ 1 (1991), Statement of Interpretation on Article 1 § 4. ecsr, Conclusions 2008, Bulgaria; ecsr, Conclusions xvi-​2 (2003), Ireland. ecsr, Conclusions 2008, Albania. On the Charter provisions for the protection of persons with disabilities, including in matters of training, Monika Smusz-​Kulesza, “Protection of the rights of persons with disabilities under the European Social Charter”, Acta Iuris Stetinensis, 31, 3, 2020, pp. 107–​122. ecsr, Conclusions 2003, Bulgaria. ecsr, Conclusions xx-​1 (2012), Iceland. On the need for skills in the green economy, Lilli Casano, “Skills and Professions for a “Just Transition”. Some Reflections for Legal Research”, E-​Journal of International and Comparative Labour Studies, 8, 3, 2019, pp. 31–​46. On the Italian case, Maurizio Del Conte,

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89

Correlations and Divergences between the Right to Work in Other International Instruments

Many international human rights instruments contain labour-​related provisions. These include, for example, Article 1 § 1 (a) of the Convention on the Elimination of All Forms of Discrimination against Women (cedaw), and Article 25 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (icmw). Furthermore, references to the right-​to-​work are included in regional instruments such as Article 6 of the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (San Salvador Convention) and Article 15 of the African Charter on Human and People’s Rights. It is also clear that Article 1 of the Charter refers to the international system of labour protection progressively established by the regulatory instruments of the ilo, with particular reference to Conventions No. 29 (1930) on forced labour, No. 111 (1958) on discrimination in employment and occupation and, above all, No. 122 (1964) on full, productive, and freely chosen employment. The labour law of the Charter bears particular resemblance to Article 6 of the International Covenant on Economic, Social and Cultural Rights (icesr), which, by enshrining the right of individuals to freely chosen employment, obliges States to adopt a proactive attitude through technical and vocational guidance and training programmes. The affinity is also supported by the stated aim in Article 6 § 2 of pursuing “full and productive employment”, similar to Article 1 § 1 esc. Moreover, to the extent that it concludes by reaffirming the protection of the economic freedoms of individuals, Article 6 icesr also prohibits discrimination in access to employment with a strongly mercantilist purpose. However, in contrast to the silent decision-​making practice of the ecsr, the Committee on Economic, Social and Cultural Rights (cescr) has expressly emphasised that work in Article 6 must be interpreted as decent work and, therefore, accompanied by workers’ rights to healthy working conditions, remuneration, and the preservation of workers’ mental and physical health.97 Indeed, the cescr has established the interdependence and indivisibility between Article 6 and the subsequent Articles 7 (working conditions) and 8 (right of association and strike).

97

“The Difficult Cultural Turning Point in Labour Protection and the Key Role of Vocational Training”, Comparative Labour Law & Policy Journal, 41, 3, 2021, pp. 641–​658. cescr, General Comment No. 18: The Right to Work (Art. 6 of the Covenant), e/​c .12/​g c/​ 18, 2006, § 7. On the point, Colm O’Cinneide, cit., p. 115.

90 Giovannone In contrast, the ecsr has never explicitly clarified the correlation between Article 1 and Article 2 on working conditions. Based on the interpretative experi­ ence of the cescr, however, such an evolutionary scenario is not unthinkable. It would indeed be a matter of recognising that, de facto, the contents of the safeguards set out in Article 1 contribute to the pursuit of decent work: a goal not necessarily in conflict with economic aims, however in the wake of the interdependence between social, economic and environmental factors theorised more recently with the concept of sustainable development.98 There is also a clear link between Article 1 of the Charter and Article 4 of the European Convention on Human Rights (echr) prohibiting forced labour. However, the European Court of Human Rights (ECtHR) has often adopted a restrictive approach to this prohibition. Thus, for example, the ECtHR has had no reservations about admitting the use of workfare –​the acceptance of work to access public income support –​ruling that such a practice does not constitute a violation of Article 4 echr.99 On the contrary, as will be further elaborated below, the ecsr has underpinned the use of workfare to preserve the free labour and the bargaining power of workers in the labour market, protecting not only the recipients of income support but also the competitiveness of other workers in a fair labour market. Indeed, workfare, like prison work, can represent a poor instrument of social dumping in the competitive game, since the work required to access the benefit can be unpaid (or underpaid) and does not conform to minimum labour protection standards, generating the so-​ called race to the bottom of labour protections.100 With regards to the European Union (EU) legal framework, the European Social Charter inspired the entire structure of the Charter of Fundamental Rights of the European Union (cfreu). Article 1 esc also inspired the drafting of Article 15 cfreu,101 emphasising above all free access to work (literally, “the 98

On Sustainable Development Goals, Charles Gore, “The post-​2015 moment: Towards Sustainable Development Goals and a new global development paradigm”, Journal of International Development, 27, 6, 2015, pp. 717–​732. On international and European labour protection instruments in the context of sustainable development, Maria Giovannone, La tutela dei labour standards nella catena globale del valore, Aracne editrice, 2019; Adalberto Perulli, Tiziano Treu (eds.), Sustainable Development, Global Trade and Social Rights, Kluwer Law Intl., 2018; Tiziano Treu, Labour Law and Sustainable Development, WP Csdle Massimo D’Antona, 130, 2016. 99 Simon Deakin, cit., pp. 161–​162. 100 On the risks of social dumping and instuments of contrast, Adalberto Perulli, “Globalizzazione e dumping sociale: quali rimedi?”, in Lavoro e Diritto, 1, 2011, pp. 13–​44; Antoine Lyon–​Caen, “A proposito del dumping sociale”, Lavoro e Diritto, 1, 2011, pp. 7–​12; Maria Giovannone, cit., p. 49 ff. 1 01 See Explanations relating to the Charter of Fundamental Rights (2007/​C 303/​02).

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right to engage in work and to pursue a freely chosen or accepted occupation”), with no specific obligations on Member States to create jobs.102 In fact, the Court of Justice of the European Union (cjeu) is known to have interpreted the right to work and European labour standards restrictively,103 paving the way for the austerity policies imposed on Member States since the economic crisis of 2008.104 Moreover, the Court has never grasped the interpretative potential of Article 15 cfreu. However, it is conceivable that the increased interpretative and applicative coherence between Article 1 esc and Article 15 cfreu could be broadened and, at the same time, clarify the boundaries on the protection imposed by the EU Charter. Persisting with the autonomous and disconnected interpretation between the two regulatory instruments strongly fuels the risk of a jurisdictional short-​circuit, already exacerbated by the EU’s non-​accession to the esc. Above all, the contrasting interpretations between the cjeu and the escr represent both an obstacle to the homogeneity of State interventions for compliance with supranational treaties and the consistent application of European standards of protection by national courts.105 In fact, the effectiveness of the esc’s provisions is very much dependent on the possibility of the Charter being invoked to support the interpretation of national, and especially constitutional, rules. Although such examples can be found in several national contexts (e.g. Italy),106 domestic courts limitedly use the Charter’s provisions to support their decisions. Above all, there is a particular bias on the side of the domestic courts, which claim that since the Charter has no prescriptive content, it is limited to a mere guiding function.107 102 Olivier De Schutter, The European Social Charter in the context of implementation of the EU Charter of Fundamental Rights, afco Committee, European Parliament, 2016, p. 18. 103 Tania Novitz, cit., pp. 256–​257; Simon Deakin, “The Lisbon Treaty, the Viking and Laval Judgement and the Financial Crisis”, cit., p. 19 ff. 104 Simon Deakin, cit. pp. 162–​163. 105 Giovanni Guiglia, “The opportunities of the European Social Charter (in Italy)” (http://​www.eur​opea​nrig​hts.eu/​pub​lic/​comme​nti/​The_​opportu​niti​es_​o​f_​th​e_​ES​C_​in​ _​Ita​ly_​-​_​Giova​nni_​Guig​lia.pdf). 106 Lorenzo Mola, “Jobs Act e controllo internazionale sull’attuazione della Carta sociale europea”, Giornale di diritto del lavoro e di relazioni industriali, 166, 2020, pp. 355–​371; Stefano Giubboni, “I licenziamenti nel crogiolo delle “tutele multilivello””, Giornale di diritto del lavoro e di relazioni industriali, 166, 2020, pp. 339–​353; Antonello Tancredi, “La Carta sociale europea come parametro interposto nella recente giurisprudenza costituzionale: novità e questioni aperte”, Rivista di Diritto Internazionale, 102, 2, 2019, pp. 490–​511. 107 Antonio Spadaro, “Sull’aporia logica dei diritti riconosciuti sul piano internazionale, ma negati sul piano costituzionale (nota sulla discutibile “freddezza” della Corte costituzionale verso due Carte internazionali: la CSE e la CEAL)”, Consulta Online, 2015, pp. 504–​515.

92 Giovannone Particularly on the labour side, this approach is in danger of not being eradicated. On the one hand, Article 1 esc imposes either relative obligations (as with full employment, which is affected by several factors external to national policies) or extremely general obligations, the content of which is, if anything, supplemented by other provisions of the Charter (such as vocational training, social protection, disability). This approach has fuelled a State-​centric view of labour law since non-​State law is not perceived as appropriate without the mediation of the positive order and mandatory domestic rules.108 Nevertheless, faced with the crisis of internal (non-​derogable) law, domestic courts may tend to invoke supranational sources directly to counterbalance the levelling down of national protections, especially regarding access to work, which is often sacrificed for economic-​financial purposes, and which has once again become pre-​eminent in the recovery from the pandemic emergency. On the first reading of this unprecedented emergency and post-​emergency context, the institutions of the European Union seem to support the system of guarantees prescribed by Article 1 of the esc. In fact, it is recommended that Member States adopt national policies (included in the Recovery and Resilience Plans) that address the challenges of the labour market as well as the green and digital transition in pursuance of full employment (also through training and retraining strategies and the strengthening of employment services) and the guarantee of quality jobs.109 However, it cannot be ignored that, even in this circumstance, it is clear that work represents a factor for recovery and not a value to be protected per se. vii

The Relationship between Article 1 and the Other Provisions of the Charter

Article 1 is closely linked to the other Articles of the Charter containing substantive rights to protect workers. The escr recognised an explicit relationship between Article 1 and only some of these provisions, as explained below. Although there is no decisional precedent, in reality, the right to work enshrined in Article 1 should satisfy the system of protections established by 108 Giorgio Fontana, La Carta Sociale Europea e il diritto del lavoro oggi, wp csdle “Massimo D’Antona”, No. 132, 2016, p. 4. 109 Regulation (EU) 2021/​241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Facility, ojeu l 57/​17, 18.2.2021; Commission Recommendation (EU) 2021/​402 of 4 March 2021 on an effective active support to employment following the covid-​19 crisis (ease), ojeu l 80/​1, 8.3.2021.

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Article 2 (adequate working conditions), Article 3 (health and safety at work) and Article 4 (fair remuneration). By recognising these connections, it is possible to overcome a “watertight” interpretation of the Charter, which could lead to a conception of work that does not comply with the protection obligations imposed by the Charter as a whole. It should be remembered that the ecsr interprets the Charter with a view to the “general interpretative backdrop”,110 which inevitably creates a common thread between the labour provisions. As mentioned above, the ecsr has recognised an explicit link between Article 1 and other provisions of the Charter. For example, Article 1 § 2 is linked to Article 12 on the right to social security. Indeed, the conditions for receiving unemployment benefits, including any obligation to accept a job offer, should be assessed under Article 12 § 1. However, the loss of unemployment benefits due to a refusal to accept a job offer could indirectly amount to a restriction of the freedom to work and, therefore, would be assessed under Article 1 § 2.111 Another example is the correlation between Article 1 § 4 and Articles 9 (right to vocational guidance), 10 § 3 (right of adult workers to vocational training) and 15 § 1 (right of persons with disabilities to vocational guidance, education and training). Indeed, the escr pointed out that Article 1 § 4 “is completed” by the other three articles mentioned, since they “contain more specific rights to vocational guidance and training”.112 As already mentioned, Article 1 represents a general guarantee regarding the other substantive labour obligations in all these cases. Indeed, if a State does not accept all the Charter’s optional provisions, the ecsr will only consider compliance with Article 1 regarding the aspects provided.113 viii

Brief Considerations on Enforcement Perspectives

As is well known, the critical points concerning the enforcement of the Charter remain linked to the limited prescriptive nature of the rules.114 The weakness of the primary guarantees (stipulation of precise obligations and prohibitions to protect subjective rights) and the secondary guarantees (system of

1 10 111 112 113 114

Colm O’Cinneide, cit., p. 115 ff. ecsr, Conclusions 2008, Statement of Interpretation on Article 12–​1, 1–​2. ecsr, Conclusions 2008, Albania. ecsr, Conclusions 2003, Bulgaria. See Volume 1 –​Chapters 6 ‘The Implementation of the European Social Charter by National Authorities’ and 7 ‘The European Social Charter’s Applicability by National Courts’ of this Commentary.

94 Giovannone institutional control and sanctioning apparatus) have repercussions above all on the provisions that do not outline a precise individual right, such as the right to work. Consequently, concerning Article 1 of the Charter, the problems relating to the immediate justiciability of the conventional rules before the national courts are exacerbated, despite the internal jurisprudential evolution in European countries that favours the direct applicability of the Charter. It is in fact interesting to note that domestic courts practice the so-​called ad abundantiam reference to the Charter, i.e. as an element reinforcing the reasoning of the judgment, or, adopting a conforming interpretation, interpreting the national rules under the provisions of the Charter.115 Similar references can also be found in the case-​law of the cjeu116 and the ECtHR. Above all, the mutual influence between ECtHR117 case law and ecsr decisions could support the enforcement of the Charter. Furthermore so since the ECtHR has long claimed the non-​existence of a hermeneutical barrier between the two treaty instruments.118 In part, this has already been the case for the right to work. Moreover, while Article 1 § 1 does not set out precise obligations of result, the Committee has drawn on the experience of the ECtHR, which imposes positive obligations on States regarding the principle of effectiveness of human rights.119 Indeed, as highlighted above, the ecsr has repeatedly declared non-​compliance with Article 1 due to the failure of States to pursue the guarantees set out effectively. The interpretative connection between Article 4 echr and Article 1 § 2 of the Charter has given rise to several expectations. The ECtHR has indeed progressively integrated international labour standards in the interpretation of the prohibition of discrimination since the 2000s, overcoming the binary distinction between civil and political rights, and social rights, and modera­ ting the tensions between the multiple legal systems that now characterise the international order (so-​called conflicts of law).120 The interpretative alignment 1 15 Federico Olivieri, cit., p. 509 ff. 116 Among all, cjeu, 22 September 1988, Bergemann, 236/​87; cjeu, 26 June 2001, BECTU v. Secretary of State of Trade and Industry, C-​173/​99. 117 Among all, ECtHR, 30 September 2003, Koua Poirrez v. France, No. 40892/​1998; ECtHR, 11 January 2006, Sørensen et Rasmussen v. Denmark, No. 52562/​99 and 52620/​99; ECtHR, 21 February 2006, Tüm Haber Sen et Çinar v. Turchia, No. 28602/​95. 118 ECtHR, 9 October 1979, Airey v. Ireland, No. 6289/​73. On this point, also Claudio Panzera, “Per i cinquant’anni della Carta sociale europea”, Lex social, 3, 2013, pp. 41–​58. 119 On the principle of effectiveness in the esc, Nikolaos A. Papadopoulos, “Revisiting the Preamble of the European Social Charter”, cit., p. 9 ff. 120 Teklè Tzehainesh, “The Contribution of the ILO’s International Labour Standards System to the European Court of Human Rights’ Jurisprudence in the Field of Non-​ Discrimination”, Industrial Law Journal, 49, 1, 2020, pp. 86–​112.

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between the esc, the echr and the ilo Conventions is fundamental to help develop universal standards of labour protection within the European constitutional framework.121

Concluding Remarks

The European Committee of Social Rights is an important observatory of the protection standards achieved in European labour law. The Committee’s moni­ toring has shown, for example, the persistence of many discrimination situations in employment that are not sufficiently addressed by national legislation and State policies. This is showed because, according to the 2016 findings, 56% of the States examined did not have a legal definition of discrimination and did not provide sufficient protection against discriminatory acts at work.122 In recent years, the situation does not seem to have improved much. Out of the 349 Conclusions in 2020, 97 non-​compliance situations and 100 cases of deferral (again, 56% of the total) were found. Most were related to employment discrimination.123 There is also pressure from the Committee on States to raise protection standards in the face of new frontiers of worker protection relating to access to work and new threats to free labour. A striking example of this is the Committee’s monitoring of national measures to counter the tightening of surveillance of workers and the proliferation of forms of exploitation in certain areas of activity and along global supply chains. This consideration also appears to be enhanced by the Committee’s commitment to the new round of evaluations to assess national measures to combat forced labour and labour 121 Giovanni Guiglia, cit., pp. 5–​21; Giovanni Guiglia, “Le prospettive della Carta sociale europea”, jus, No. 3, 2010; Valentina Calzolari and Jonathan Barnes, “Work-​Related Rights Under the ECHR”, in Ida Koch (ed.), Human Rights as Indivisible Rights: The Protection of Socio-​Economic Demands under the European Convention on Human Rights, brill, 2009, p. 214; Valentina Calzolari and Jonathan Barnes, “The Relation between the ECHR and the ESC/​ESC (rev)”, in Ida Koch (ed.), Human Rights as Indivisible Rights: The Protection of Socio-​Economic Demands under the European Convention on Human Rights, brill, 2009, pp. 291–​315. On relations between the ECtHR and the ecsr during the economic crisis, Eva Brems, “Protecting Fundamental Rights During Financial Crisis”, in Tom Ginsburg, Mark Rosen and Georg Vanberg (eds.) Constitutions in Times of Financial Crisis, Great Britain, Cambridge University Press, 2019, p. 163. 122 Karin Lukas, “The European Social Charter”, in Christina Binder et al. (eds.), Research Handbook on International Law and Social Rights, Elgar, 2020, p. 136. 123 ecsr, Social Rights Monitoring 2020: Employment, training and equal opportunities. 2020 Conclusions of the European Committee of Social Rights, 2021.

96 Giovannone exploitation in the gig economy or platform economy. In this regard, States have been asked to provide information on the status and rights of digital platform workers, the mandate of labour inspection services to prevent the exploitation of platform workers, and the system of remedies to protect them, especially to challenge their employment status and working conditions.124 More than any other aspect, the focus on these new forms of exploitation shows how the Committee “is keeping pace” with the urgent labour issues that are also enga­ ging the legislative tables in the European Union.125 With these aspects in mind, but in broader terms, the question arises whether Article 1 of the Charter could represent a strategic provision for guiding the national legal systems of the European States towards the levels of protection required by decent work,126 especially in the face of structural changes in the European labour market in relation to which even the European Union’s social acquis is struggling to make progress. In this sense, the Committee has above all helped to develop a set of worker protections based on the principle of equality, starting with its positions on the prohibition of discrimination in employment. Indeed, since its 1991 conclusions, the Committee has interpreted the prohibition of discrimination in Article 1 § 2 as a guarantee of substantive equality between workers.127 This principle is part of the debate on the transnational protection of European migrant workers, especially within the context of the European Union, which is still grappling with the process of social and economic integration between the Member States,128 with both newcomers and very recent departures.129 124 Among all, ecsr, Conclusions 2020, Austria; ecsr, Conclusions 2020, Lithuania; ecsr, Conclusions 2020, Hungary; ecsr, Conclusions 2020, Spain. 125 See the recent Proposal for a Directive of the European Parliament and of the Council on improving working conditions in platform work (Brussels, 9.12.2021, COM(2021) 762 final) 126 Karin Lukas, “The Right to Work”, cit., p. 47. 127 Giovanni Guiglia, “I preamboli nel sistema convenzionale della Carta sociale europea”, dpce online, 2, 2021, pp. 1673–​1708. 128 On the debate, ab origine, Massimo D’Antona, “Sistema giuridico comunitario”, in Antonio Baylos Grau, Bruno Caruso, Massimo D’Antona, Silvana Sciarra (eds.), Dizionario di diritto del lavoro comunitario, Monduzzi editore, 1996, pp. 3–​46. More recently, Walter Josef prassl, “Migrants, citizens, aliens? Free movement rights for the economically inactive after Brey and Dano”, Rivista del Diritto della Sicurezza Sociale, 2, 2016, pp. 311–​328; Giovanni Orlandini, “Libertà di circolazione e dimensione sociale europea: storia di un’integrazione mancata”, Rivista del Diritto della Sicurezza Sociale, 4, 2017, p. 655 ff; Niamh Nic Shuibhne, “Reconnecting free movement of workers and equal treatment in an unequal Europe”, European Law Review, 43, 4, 2018, pp. 477–​510; Francesco Costamagna, Stefano Giubboni, “Free Movement of Persons and Transnational Solidarity. The Legacy of Mrker Citizenship”, in Rivista del Diritto della Sicurezza Sociale, 1, 2021, pp. 1–​31. 129 On Brexit as a phenomenon of rejection of European social integration and on the role of the esc in stemming the impoverishment of social protection in the United Kingdom,

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It is difficult to give in to over-​optimistic perspectives. The provisions of Article 1, although subject to a flexible and evolving interpretation, are anchored in a liberal conception of work as a right of access to the labour market. The entire scheme is therefore pervaded by a functionalist logic so that protection against discrimination is conceived as functional to the removal of obstacles to participation in the labour market, while guarantees on working conditions (in prisons, among domestic workers, etc.) are functional to the maintenance of fair competition in the market.130 However, we must also avoid defeatist views. By adopting a holistic approach, it must be acknowledged that the right to work referred to in Article 1 is an essential requirement for protecting the dignity of workers and their families, given that access to work guarantees their social well-​being. Indeed, it can be said that the right to work, together with the right to good working conditions and the right to health and safety, is indeed the cornerstone of decent work. This assumption is also valid if we conceive Article 1 as a right to access the labour market. As the ilo recalls,131 the structuring of a labour market based on efficiency and inclusiveness contributes to improving people’s working and living conditions. For these reasons, although the worker’s dignity is not expli­ citly enshrined, it appears as an all-​encompassing value throughout the conventional text, even if its legal meaning is not yet clear.132 We will have to wait and see whether, in the next rounds of evaluations, the Committee will opt for an evolutionary interpretation that clearly channels the guarantees analysed above into protecting the human right to work,133 openly revealing the connections with the protections on working conditions and terms abundantly enshrined in the Charter.

1 30 131 132 133

Maria Giovannone, “Social protection in the UK after Brexit: the Agreements’ provisions and the role of the European Social Charter”, Federalismi, 23, 2021, pp. 91–​102. This is repeated many times by Simon Deakin, cit., pp. 163–​165. Among all, ilo, World Employment Social Outlook –​Trends 2019, International Labour Office, Geneva, 2019, p. 5. Originally, ilo, Report by the director-​general: Decent work, 87th Session of the International Labour Conference, Geneva, 1999. Mariann Arany Toth, “The Right to Dignity at Work: Reflections on Article 26 of the Revised European Social Charter”, Comparative Labour Law & Policy Journal, 29, 3, 2008, pp. 275–​316. Janice R. Bellace, “Human Rights at Work: The Need for Definitional Coherence in the Global Governance System”, International Journal of Comparative Labour Law and Industrial Relations, 30, 2, 2014, pp. 175–​198.

article 2

The Right to Just Conditions of Work Magdalena Butrymowicz and Robert Tabaszewski







With a view to ensuring the effective exercise of the right to just conditions of work, the Parties undertake: 1 to provide for reasonable daily and weekly working hours, the working week to be progressively reduced to the extent that the increase of productivity and other relevant factors permit; 2 to provide for public holidays with pay; 3 to provide for a minimum of four weeks' annual holiday with pay; 4 to eliminate risks in inherently dangerous or unhealthy occupations, and where it has not yet been possible to eliminate or reduce sufficiently these risks, to provide for either a reduction of working hours or additional paid holidays for workers engaged in such occupations; 5 to ensure a weekly rest period which shall, as far as possible, coincide with the day recognised by tradition or custom in the country or region concerned as a day of rest; 6 to ensure that workers are informed in written form, as soon as possible, and in any event not later than two months after the date of commencing their employment, of the essential aspects of the contract or employment relationship; 7 to ensure that workers performing night work benefit from measures which take account of the special nature of the work.

Article 2 of the Charter (esc, 1961 and esc (rev), 1996) regulates the right to just working conditions and thus defines the conditions and principles of how citizens earn their living. The right to fair employment conditions is a social right*,**. It remains one of the critical rights shaping the individual relationship between the employee and the employer while guaranteeing the employee safe and healthy employment conditions. The distinctive feature of this legal norm is its interpretative dynamics in relation to the conditions of employment and the obligations imposed on the employer in this respect. The right to

* Article 2 § 1–​3 of the Charter. ** Article 2 § 4–​7 of the Charter. Grant support under project No. reg. 2021/​43/​d /​h s5/​01094/​ Narodowe Centrum Nauki/​International.

© Koninklijke Brill NV,

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“fair” working conditions covers many aspects of an employee’s everyday life, and its elements have a significant impact, for example, on the employee’s family or social life. It should be seen as a general rule shaping the basic principles of labour law. It creates a legal framework for other principles of labour law, such as The right to safe and healthy working conditions, Article 22 (the right to take part in the determination and improvement of the working conditions and working environment), Article 26 (The right to dignity at work), Article 27 (The right of workers with family responsibilities to equal opportunities and equal treatment). The way in which the employer defines the employee’s working conditions will therefore have an impact on the respect of his other rights. Determining the working hours in such a way that the employee does not have time to meet his/​her needs, whether in terms of social or family life, therefore violates an employee’s right to family, private or social life, even the right to protection and respect for their health. As with other human rights, this right is linked to human dignity. Work cannot be performed in conditions that violate human rights. The conditions must be adapted to the abilities of the person performing the work. The employer should therefore take into account circumstances such as the employee’s disability or their need to rest and eat a meal when accommodating the workplace. An employee cannot work in conditions that violate his right to work under adequate conditions and it is the duty of the state to create a legal environment that guarantees respect for the right to work under adequate conditions. Consequently, States have the duty to protect the worker, by not only enacting a specific law respecting the right of workers to dignified working conditions but also ensuring that this right is enforced by private employers and relevant state bodies/​institutions. Interestingly, Article 2 of the Charter is historically the first regulation resulting from the social revolution of the 19th and the commencement of the 20th century. Despite its importance, it is not a “hard-​core” law, however it offers an opportunity for States to be free in its interpretation it and adjusting the internal legal regulations and control mechanism to the social expectations of a given state. This can lead to incompatibility between national and international regulations. Each time, however, Article 2 introduces specific solutions that should be implemented in the workplace to ensure respect for the dignity of workers and their right to family life. There are a number of legal instruments in international law that form the basis of this right. Some of these international instruments were adopted after the right itself was defined in the revised Charter. Nevertheless, a kind of foundation of this right to adequate working conditions is constituted by conventions adopted within the framework of the International Labour Organization

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(ilo), such as: the ilo Weekly Rest (Industry) Convention,1 ilo Holidays with Pay Convention (Revised),2 ilo Hours of Work (Industry) Convention3 and ilo Reduction of Hours of Work (Glass-​Bottle Works) Convention.4 The conventions in question set standards for the protection of workers and allowed for a clear definition of the right to fair working conditions. Article 2 of the revised Charter covers the most important demands of employees for protection against exploitation by their employer, i.e. the right to adequate working time, the right to rest and the right to paid vacations. Article 2 of the Charter of 1961 should be read in conjunction with Article 1 –​ Implementation of the undertakings given of the Charter of 1961 (in the revised version), according to which compliance with the undertakings deriving from the provisions of paragraphs 1, 2, 3, 4, 5 and 7 of Article 2, paragraphs 4, 6 and 7 of Article 7, paragraphs 1, 2, 3 and 5 of Article 10 and Articles 21 and 22 of Part 2 of this Charter shall be regarded as effective if the provisions are applied, in accordance with paragraph 1 of this Article, to the great majority of the workers concerned.5 Article 2 of the revised Charter consists of 7 paragraphs regulating: working time, the right to paid vacations and their duration, the obligation to eliminate the risk of hazardous or unhealthy work, the right to weekly rest (rest break), the right to information about the conditions of employment and the conditions of night work. i

Article 1 § 1 –​Reasonable Working Time

The commented legal provisions are largely consistent in their content and scope with similar legal acts adopted by the European Union. One of the examples can be the European Union Charter of Fundamental Rights whose provisions are mostly compatible with the Social Charter.6 In general Article 2 of the Charter is similar (but not fully compatible) with an Article 151 § 1of the Treaty on the Functioning of the European Union.7 and Article 31 of the EU Charter

1 2 3 4 5 6

ilo, Weekly Rest (Industry) Convention, 1921, No. C14. ilo, Holidays with Pay Convention (Revised), 1970, No. 132. ilo, Hours of Work (Industry) Convention, 1919, No. C1. ilo, Reduction of Hours of Work (Glass-​Bottle Works) Convention, 1935, No. C 49. Ibid. European Social Charter and European Union law, https://​www.coe.int/​en/​web/​europ​ean -​soc​ial-​char​ter/​europ​ean-​soc​ial-​char​ter-​and-​europ​ean-​union-​law, visited: 20 March 2022. 7 Consolidated version of the Treaty on the Functioning of the European Union, Official Journal C 326, 26/​10/​2012 P. 0001 –​0390.

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of Fundamental Rights.8 The other example of legal regulation is closed to the Article 2 provisions in the Directive 2003/​88/​e c of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working. The monitoring procedure of the implementation of the Charter based on national reports prepared by the European Committee of social rights clearly indicated the incompatibility between those provisions.9 Whereas the general merits behind those three provisions are exactly the same the execution and interpretations on the national level is clearly pointing out incompatibility. Article 2 § 1 of the Charter is aimed at protecting the family life, social life, health and safety of employees during their work. At the same time, it emphasizes the need to take into account the more general issue of the employer’s economic interest in determining weekly working hours. The question arises as to what is meant by the phrase “reasonable” daily and weekly working time in the provision under consideration, and how should a gradual reduction in weekly working time be made so that it does not affect productivity and other relevant factors? These issues were considered by the European Committee of Social Rights (the Committee) in the Greek General Confederation of Labour (GSEE) v. Greece.10 The European Committee of Social Rights (ecsr) considered then that the compatibility of state regulations with the legal regulations contained in the Charter is met only by those legal standards which “(…) prevent daily or weekly working hours from being unreasonable; be established by a legal framework providing for adequate safeguards (and) provide for

8

Charter of Fundamental Rights of the European Union, Official Journal of the European Communities C 364/​3 (2000/​C 364/​01). 9 “The Committee refers to its Introductory Observation on the relationship between European Union Law and the European Social Charter in collective complaint No. 55/​2009, Confédération Générale du Travail (CGT) v. France, the decision on the merits of 23 June 2010, paragraph 38. It reiterates that the fact that a domestic regulation is based on a European Union Directive does not remove it from the ambit of an assessment under Article 2 of the Charter. Therefore, exceptions expressly provided by Directive 2003/​88/​ec must be assessed on a case-​by-​case basis as they are applied by the States Parties. In this respect, the Committee recalls that a weekly working time of more than sixty hours is too long to be considered reasonable under this provision. This is a limit that cannot be exceeded even in the context of flexibility –​42 –​schemes, where compensation is granted by rest periods in other weeks, or in specific occupations. It, therefore, finds that Section 18 of Legislative Decree No. 66 of 8 April 2003, which sets working time limits for workers in the fishing industry, does not comply with the Charter” in Working Document of the European Committee of Social Rights on the relationship between EU law and the European Social Charter, 15 of July 2014, p.41, https://​rm.coe.int/​168​0654​4ec. 10 ecsr, Greek General Confederation of Labour (GSEE) v. Greece, complaint No. 111/​2014, decision on the merits of 23 March 2017.

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reference periods of a reasonable duration for the calculation of the average working time”.11 Thus, any labour law norm that meets these three criteria ensures that the obligations imposed on States under Article 2 of the Charter are fulfilled. In earlier decisions, the Committee has also attempted to clarify the meaning of the term “reasonable”, and thus in Confédération générale du travail (CGT) v. France, it indicated that: “provisions of the revised Charter concerning working time are intended to protect workers’ safety and health in an effective manner. Every worker must therefore receive rest periods adequate for recovering from the fatigue of work and of preventive value in reducing risks of health impairment which could result from the accumulation of periods of work without the necessary rest”.12 The Committee, therefore, took the view that the working time of an employee (including senior managers) depends on the nature of his/​her work and the effort he/​she puts in to do it. If the rest time is not sufficient and adequate to the fatigue of the employee, the work he/​ she performs will constitute a direct threat to his/​her health. The Committee expressed a similar opinion in the case of Confederazione Generale Italiana del Lavoro (CGIL) v. Italy13 explicitly stressing that each employee should be provided with adequate time to recover from the strain of work. In addition, in the Committee’s opinion, the weekly working time of 60 hours is too long to be perceived as justified and reasonable under the provisions of Article 2 § 1 of the Charter. In the Committee’s view previously confirmed in the European Committee of Social Rights Conclusions 2010 on Albania14 “(…) this limit cannot be exceeded even in the context of flexibility schemes, where compensation is granted by rest periods during other weeks”.15 The Committee has therefore outlined a general framework for defining “reasonable” working time while emphasizing the dynamic nature of this legal standard and the lack of need for any clear-​cut clarification. However, an analysis of the Reports of the Government Committee established on the basis of Article 27 § 3 of the Charter, especially the last report,16 allows us to assume that, for the purposes of Article 2 § 1 of the Charter, any 11 12 13 14 15 16

Ibid. Ibid. ecsr, Confederazione Generale Italiana del Lavoro (CGIL) v. Italy, complaint No. 91/​2013, decision on admissibility and on the merits of 12 October 2015. ecsr, Conclusions 2010, Albania. ecsr, Confederazione Generale Italiana del Lavoro (CGIL) v. Italy, complaint No. 91/​2013, decision on admissibility and on the merits of 12 October 2015. ecsr, Governmental Committee Report Concerning Conclusions 2018 of The European Social Charter (Revised), Strasbourg, 22 January 2020 gc(2019)28.

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daily working time which exceeds 12 hours and 60 hours per week should be considered “unreasonable”. In addition, the Government Committee pointed out that “(…) some collective agreements on-​call time spent at home in readiness for work during which no effective work is undertaken is assimilated to rest period” (Slovenia example), constitutes a violation of the provision of Article 2 § 1 of the revised Charter just as “(…) the exclusion of certain categories of workers from the statutory protection against unreasonable working hours” (the Dutch example) is considered a violation of Article 2 § 1 of the revised Charter. In the opinion of the Government Committee, a violation of Article 2 § 1 of the revised Charter is also the failure to pay an employee for public holidays or the order to work on such days.17 In conclusion, it should be pointed out that since the provision itself does not indicate a specific number of hours that should be considered “reasonable” and the Committee itself is ambiguous in its decisions: it is not possible to construct a uniform rule. It is therefore left to the signatory States, which should take into account the social and economic situation, to determine reasonable daily and weekly working hours. However, it is the task of the States to apply the three-​point criteria in creating the legal norm, and the Committee to assess whether these requirements have been met. Each case should be assessed individually depending on the social and economic background in which it occurs. While in the case of Italy, a 60-​hour working week was not considered appropriate, the Committee considered, monitoring Norway, that a 45-​hour working week could be justified.18 Thus, each country determines individually the reasonable daily and weekly working hours in its territory, and the assessment of whether this criterion is met depends on many socio-​economic factors that vary over time.19 With respect to the issue of a gradual reduction in the weekly working hours of employees, the Committee’s guidance is that States’ respect of the 45-​hour weekly working time should be considered as meeting this requirement.20 By other factors, we mean such issues as social good, safety and health protection of employees. The need to reduce weekly working hours remains a relevant topic, as the Norwegian experience has shown, changes in 17 18 19

20

Ibid. ecsr, Conclusions i (1969), Norway. See also, ecsr, Conclusions 2007, article 2 § 1, Belgium. Norway itself can serve as an example. In 2005, a government committee decided that 45 hours per week of work in Norway was reasonable, only to decide in 2020 that 60 hours per week and 16 hours per day constituted a violation of Article 2 § 1 of the revised Charter. ecsr, Governmental Committee of the European Social Charter, Report Concerning Conclusions 2005, Strasbourg, 30 November 2005 t-​s g (2005)25.

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the law are so dynamic that the State can once again returns to regulations that are less favorable for the employee. An interesting observation can be made in accordance with France’s regulation concerning the call of duty period. According to Article L of the French Labour Code, “a period during which the employee, without being at his workplace and without being at the permanent and immediate disposal of the employer, must be able to intervene to carry out work in the service of the company”.21 As regulation stands, this period cannot be counted as working time and this is a long-​running dispute between France and the European Committee of Social Rights about the annual working day’s system. The cases which can be notices is Confédération générale du travail (cgt) and Confédération française de l’encadrement-​c gc (cfe-​c gc) v. France, Complaint No. 149/​201722 in which Committee unanimously agreed that France violated Article 2 § 1 of the Charter.23 ii

Article 2 § 2 –​Public Holidays with Pay

The right to paid public vacations is an added right that exists in addition to the right to daily and weekly rest and the right to paid vacations, which will be discussed below. The commented legal provision does not specify the number of public holidays that must be guaranteed by the state, nor does it specify the rate of remuneration. According to ecsr jurisprudence, violation of Article 2 § 2 of the Charter occurs on the part of the State only in two situations: when adequate remuneration is not guaranteed to employees who must exceptionally perform work on public holidays, and when part-​time employees enjoy the protection contained in this provision. With regard to what is to be understood by adequate remuneration, the Committee in its analysis of the German regulations, pointed out as follows: “(…) the Committee recalls that in the previous conclusion it had notably asked whether the base salary is maintained, in addition to the increased pay rate.24 The Committee recalls that work performed on a public holiday entails a constraint on the part of the worker, who should be compensated. Considering the different approaches adopted in different countries concerning the forms and levels of such compensation and the lack 21 22 23 24

Article L. 3121–​9 of the French Labour Code. ecsr, Confédération générale du travail (cgt) and Confédération française de l’encadrement-​CGC (CFE-​CGC) v. France, complaint No. 149/​2017, decision on the merits of 19 May 2021. Ibid. escr, Conclusions xx-​3 (2014), Germany, article 2 § 2.

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of convergence between States in this regard, the Committee considered that States enjoy a margin of appreciation on this issue, subject to the requirement that all employees are entitled to an adequate compensation when they work on a public holiday”.25 The Committee, therefore, assumed that States independently determine the rules of remuneration for work on public holidays and that remuneration can take two forms. The first is monetary compensation, which should correspond to the average wage or salary for the previous 12 months of absence from work during, inter alia, public holidays (conclusion in the case of Serbia).26 A similar position was taken by the Committee in the case of the Netherlands, indicating that “(…) although there is no law or universal provision governing work during public holidays, this is often regulated in the context of collective agreements. As a rule, employees should not be required to work on public holidays, but, in some sectors, employers’ and employees’ organisations reach an agreement allowing them to do so”.27 The other form of compensation may be days off that the employee receives from the employer in exchange for work on public holidays. Both forms of compensation should be regulated in a collective agreement or another legal act in accordance with the provisions of Article 33 of the Charter of 1961. iii

Article 2 § 3 –​Annual Holiday with Pay

In contrast to the two provisions commented on above, Article 2 § 3 of the Charter contains specific regulations obliging the States Parties to introduce a minimum period of paid rest in the form of a four weeks’ annual holiday with pay which is an improvement from the Charter from 1961 (which specifies two weeks minimum). This provision does not provide any exceptions, even with the consent of the worker, allowing, for example, the right to rest to be converted into financial compensation. This was confirmed by the Committee in its opinion on Albania, where it considered that legal provisions allowing an employee to waive his or her right to annual paid rest with increased remuneration were incompatible with the Charter.28 In interpreting this provision, therefore, the Committee concluded that employees must take at least two weeks of uninterrupted annual holidays during the year.29 In the event that a 25 26 27 28 29

Ibid. ecsr, Conclusions 2018, Serbia, Article 2 § 2. ecsr, Conclusions 2018, the Netherlands, Article 2 § 2. ecsr, Conclusions 2010, Albania. ecsr, Conclusions 2018, the Netherlands, Article 2 § 3.

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holiday is interrupted due to illness or other unforeseen circumstances,30 an employee is entitled to take the time off at a later date (preferably within the same year). If the employee is unable to take the time off in the same year, the employee shall be entitled to accrue unused paid time off in the following year, which shall be taken no later than eighteen months after the end of the relevant work year (Decision of the Committee for Armenia).31 It should also be stressed that any legal situation in which the right to annual rest is not guaranteed to all groups of workers or where the duration of rest is less than 4 weeks or 20 days constitutes a violation of Article 2 § 3 of the Charter.32 The employees have the right to a four-​week annual break from work, provided that at least two weeks must constitute an uninterrupted paid break.33 A violation of this provision consists not only in not guaranteeing all employees the right to paid leave, but also in introducing an overly flexible regulation, which would not provide for any sanction of the employer in case he does not grant this leave.34 iv

Article 2 § 4 –​Reduced Working Hours or Additional Holidays in Dangerous or Unhealthy Occupations

The content of Article 2 § 4 of the revised Charter, concerning the protection of workers working in dangerous or unhealthy conditions, is somewhat different than in the Charter of 1961.35 The original document puts more emphasis on compensating for the effects of hazardous or harmful work than on risk reduction and prevention policies. States have to provide ‘additional paid holidays or reduced working hours for workers engaged in dangerous or unhealthy occupations as prescribed’.36 However, as the average weekly workload was reduced in the second half of the twentieth century and most industries underwent technical progress, the text of Article 2 § 4 in the Charter of 1961 was amended

30 31 32 33 34 35 36

escr, Conclusions xxi-​3 (2018), Article 2 § 3. ecsr, Conclusions 2018, Armenia, Article 2 § 3. escr, Conclusions 2018, Bosnia and Herzegovina, article 2 § 3. ecsr, Conclusions 2018, Cyprus, Article 2 § 3. ecsr, Conclusions 2018, Moldova, Article 2 § 3. coe, Digest of the Case Law of the European Committee of Social Rights (Digest of the Case Law of the ecsr), December 2018, p. 6. Klaus Lörcher, “Article 2 The Right to Just Conditions of Work”, in Niklas Bruun et al (eds.), The European Social Charter and the Employment Relation, Oxford, Hart Publishing, 2017, p. 176.

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in the revised Charter.37 The current version of Article 2 § 4 of the revised Charter requires Contracting Parties to eliminate risks in inherently dangerous or unhealthy occupations.38 The modified provision of 1996 put more emphasis on the aspect of prevention and elimination of hazards than on the elimination of and compensation for the effects of work in hazardous or harmful conditions.39 Thus, Article 2 § 4 of the revised Charter fully corresponds to the provisions of Article 3 of the Charter (the right to safe and healthy working conditions) and Article 11 of the revised Charter (the right to healthcare). Due to the need for health protection, it is possible to limit working hours in accordance with some of the provisions of the revised Charter.40 This means that, when assessing the compliance of a given state with Article 2 § 4 of the revised Charter, the Committee also refers to its conclusions regarding the right to safe and hygienic working conditions.41 The provision expressed in Article 2 § 4 of the revised Charter is also fully compliant with the ilo and who standards. It is also in line with the provisions of Directive 2006/​123/​e c on services in the internal market in EU Member States.42 Article 2 § 4 of the revised Charter consists of two parts.43 The first part in principio requires States Parties to eliminate risks in inherently dangerous or unhealthy occupations.44 The provision is ‘closely linked to Article 3 of the Charter of 1961, under which States undertake to pursue policies and take measures to improve occupational health and safety’.45 The task of every State is to ‘prevent accidents and damage to health, particularly by minimizing the causes of hazards inherent in the working environment’.46 In light of the 37 38 39 40 41 42 43 44 45 46

ecsr, Conclusions 2014, Finland; Krzysztof Orzeszyna, Michał Skwarzyński and Robert Tabaszewski, International Human Rights Law (Prawo międzynarodowe praw człowieka), C.H. Beck, Warszawa, 2020, pp. 115 ff. (in Polish). ecsr, Conclusions 2018, Slovakia. Klaus Lörcher, op. cit., p. 175–​176; Karin Lukas, The Revised European Social Charter. An Article by Article Commentary. Elgar Commentaries series, Northampton, Edward Elgar Publishing, 2021, pp. 49–​50. Robert Tabaszewski, “The permissibility of limiting rights and freedoms in the European and national legal system due to health protection”, Review of European And Comparative Law, Vol. xlii, 2020, pp. 62 ff. escr, Conclusions 2005, Statement of Interpretation on Article 2 § 4; ecsr, Conclusions 2017; ecsr, Conclusions 2018, Austria; ecsr, Conclusions 2018, Ukraine. ecsr, Conclusions 2014, Lithuania. Klaus Lörcher, op. cit., p. 175; Andrzej Swiatkowski, Labour Law: Council of Europe, 2nd édition, Alphen aan den Rijn, Wolters Kluwer, 2019, § 84. escr Conclusions 2005, Statement of Interpretation on Article 2 § 4; ecsr, Conclusions 2016, Italy; ecsr, Conclusions 2018, Latvia; ecsr, Conclusions 2018, Ukraine. ecsr, Conclusions 2018, Latvia. ecsr, Conclusions 2010, Lithuania.

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second part of Article 2 § 4 in fine of the revised Charter, when for any reason it is impossible ‘to eliminate or reduce sufficiently dangerous or unhealthy occupation’, it is up to states ‘to provide for either a reduction of working hours or additional paid holidays for workers engaged in such occupations’. As can be seen, this provision reflects the complex, dualistic obligations of states, as well as the specificity of work performed in conditions that are particularly dangerous or harmful to health. It also establishes the hierarchy of actions of member states: first of all, states are obliged to take positive action in the area of establishing preventive policies and only secondly to follow them up. It follows that: “(…) States are required to eliminate risks in inherently dangerous or unhealthy occupations and to apply compensatory measures to workers exposed to risks which cannot be or have not yet been eliminated or sufficiently reduced either despite the effective application of the preventive measures referred to above or because they have not been applied”.47 As can be seen, this provision introduces a certain sequence of positive actions to be taken by States. It is, therefore, very important for state policies to be individualized with regard to particular groups of workers. For example, workers exposed to ionising radiation should have access to good-quality equipment and adequate training, and their exposure time to harmful radiation should be monitored. If the above conditions are met, there is no need to pay compensation in the form of reduced working hours and additional holidays.48 Article 2 § 4 of the revised Charter does not establish an enumerative catalogue of occupations that should be subject to special protection. In this respect, States have a degree of discretion.49 The subject of protection is therefore a worker who works in hazardous or health-​threatening conditions, if they fulfill this criterion then they are covered by statutory protection. In its legislation, each state should create a list of categories of workers engaged in arduous or dangerous occupations and eligible for measures such as extended annual leave or, if applicable, reduced working time’.50 The Committee asked States Parties for a list of activities regarded as involving exposure to particular risks

47 48 49 50

ecsr, Conclusions 2014, the Netherlands; ecsr, Conclusions 2018, Austria; ecsr, Conclusions 2018, Armenia; ecsr, Conclusions 2018, Latvia; ecsr, Conclusions 2018, Moldova. ecsr, Conclusions 2014, Finland. ecsr, Conclusions ii (1971), Statement of Interpretation on Article 2 § 4, p. 9; ecsr, sttk ry and Tehy ry v. Finland, complaint No. 10/​2000, decision on the merits of 17 October 2001, § 20. ecsr, Conclusions 2018, Armenia.

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to be included in state reports.51 The escr has described the dangerous occupations and the measures taken in this regard in its conclusion under Article 3 of the revised Charter.52 The escr has pointed out that some categories of occupations are manifestly dangerous or unhealthy, such as mining, quarrying, steelmaking and shipbuilding, and those exposing employees to ionising radiation, extreme temperatures and noise.53 However, many countries, with the approval of the Committee, extended this list.54 Assigning a given worker to a given group has certain consequences provided for in the legislation of a given country. In the first place, it gives a worker the right to receive information on occupational risk and the possibility of reducing the hours of harmful work. Where a reduction of working hours is granted on medical grounds, the worker should not suffer any loss of earnings.55 The reduction in working hours also applies to working in prisons. The content of Article 2 § 4 of the revised Charter requires that all authorised employees (and not just part of or the majority) who in practice are exposed to residual risks, are to be entitled to be given information on work-​related risks and appropriate compensatory measures.56 Article 2 § 4 of the revised Charter in principio requires Contracting Parties to eliminate risks in inherently dangerous or unhealthy occupations. In this regard, States are obliged to pursue policies of effective implementation of legislative, judicial and other mechanisms aimed at eliminating or 51

52 53

54

55 56

ecsr Conclusions 2009; ecsr, Conclusions 2014, Turkey; coe, Digest of the Case Law of the European Committee of Social Rights, December 2018, p. 29. According to the escr, “the assessment of national situations under Article 2 § 4 takes into account the information provided and the conclusion reached in respect of Article 3 § 2”. ecsr, Conclusions 2005, Statement of Interpretation on Article 2 § 4. ecsr, Conclusions 2018, Latvia; ecsr, Conclusions 2018, Moldova. ecsr, sttk ry and Tehy ry v. Finland, complaint No. 10/​2000, decision on the merits of 17 October 2001, § 27; ecsr Conclusions xiv-​2 (1998), Norway; ecsr Conclusions xiv-​2 (1998), Norway; ecsr, Conclusions 2014, Bosnia and Herzegovina; Klaus Lörcher, op. cit., p. 176; Karin Lukas, op. cit., p. 53. For example, in the last cycle of reports, the escr positively responded to Armenia’s legislation containing a catalogue of sectors considered to be associated with burdensome or harmful activities. It belongs to them: agriculture, environmental protection, transport and communication, energy, mining, chemical production, light industry, mechanical engineering, production of construction materials, policing, emergency situations service, civil aviation, urban development, health care and social security institutions, water supply, printing, archiving, study, measurement, reinforcement, repair and renovation of monuments, film industry and the nuclear power sector, in which a number of activities are identified. ecsr, Conclusions 2018, Armenia. ECtHR, 9 February 2016, Meier v. Switzerland, No. 10109/​14. ecsr, Conclusions 2018, the Russian Federation.

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reducing occupational hazards, in particular, working in inherently dangerous or unhealthy sectors.57 The aim of the above policies is to initiate positive actions, such as raising awareness, prevention and inspection activities.58 States should base their policies for reducing and eliminating life-​and health-​ threatening factors on the main legal act, which is usually the labour code or the act on health and safety at work. States can also develop specialist strategies.59 The provision of Article 2 § 4 is thus ‘closely linked to Article 3 of the Charter of 1961, under which States Parties undertake to pursue policies and take measures to improve occupational health and safety.60 In order for the Committee to consider that a State meets its obligations to eliminate the risk of ‘inherently dangerous or unhealthy occupations’, it must first demonstrate that it implements a ‘prevention policy regarding the risks in inherently dangerous and unhealthy occupations’.61 The escr has noted the need for a statutory and regulatory framework in requiring the elimination of agents and other risk factors for the health and safety of workers or, where such cannot be satisfactorily eliminated, a reduction in their impact, in terms of both their level and the length of workers’ exposure to them so that they no longer pose any threat to health or safety.62 Therefore: “(…) when the risks have not been eliminated or sufficiently reduced despite the application of the measures described above, or if such measures have not been applied, the second part of Article 2 § 4 [of the revised Charter] requires States to grant workers exposed to such risks one form or another of compensation”.63 If States are unable to meet all the requirements concerning the prevention and elimination of factors harmful to health, they are obliged to provide the appropriate compensation measures referred to in Article 2 § 4 in fine of the revised Charter.64 The purpose of this provision is to compensate for and reward stress and physical and mental exertion. The extra time allows workers to rest and ‘to recover from the stress’65 and fatigue caused by their occupation and thus maintain their vigilance66 or limit their exposure to the 57 58 59 60 61 62 63 64 65 66

ecsr, Conclusions 2018, Slovakia. ecsr, Conclusions 2014, Norway. ecsr, Conclusions 2014, Bulgaria. ecsr, Conclusions 2018, Latvia; ecsr, Conclusions 2018, Slovakia. ecsr, Conclusions 2018, Armenia. ecsr, Conclusions 2014, Finland. escr Conclusions 2005, Statement of Interpretation on Article 2 § 4; ecsr, Conclusions 2016, Italy; ecsr, Conclusions 2018, Latvia; ecsr, Conclusions 2018, Ukraine. escr Conclusions 2005, Statement of Interpretation on Article 2 § 4; ecsr, Conclusions 2016, Italy; ecsr, Conclusions 2018, Latvia; ecsr, Conclusions 2018, Ukraine. ecsr, Conclusions v (1977), Statement of Interpretation on Article 2 § 4. ecsr, Conclusions iii (1973), Ireland.

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risk.67 This is because certain activities are ‘likely to involve the need to preserve the workers’ vigilance and mental and physical health through specific measures dealing with the organisation of work (management of working rhythms, in terms of daily, weekly and annual rest periods)’.68 Therefore, it is the primary duty of States to regulate the forms ‘of compensation awarded in case of residual risks inherent in dangerous or unhealthy occupations’.69 It is an absolute injunction that cannot be replaced by any other means as it directly concerns human rights. Therefore, ‘domestic legislation needs to provide for the compensatory measures’ when workers are exposed to risks which cannot be or have not yet been eliminated or sufficiently reduced.70 Article 2 § 4 in fine of the revised Charter mentions two basic forms of compensation, namely reduced working hours and additional paid holidays.71 Importantly, the Committee considers reduced hours of work to constitute full-​time work.72 Other suitable measures are possible in addition to additional holidays and reduced working hours as long as they aim to reduce risks in particular occupations.73 Measures of this type need to be assessed on a case-​by-​case basis.74 However, the Committee has pointed out that salary supplements,75 early retirement76 and/​or increased remuneration and other financial rewards,77 provision supplements78 or financial compensation79 are not relevant and appropriate measures that should be taken to achieve the aims of Article 2 § 4 of the Charter. When examining cases pursuant to Article 2 § 4 of the Charter, the Committee investigates not only the formal establishment of compensation measures in the legislation but also the actual nature and purpose of the compensation, which is to take the form of an individualized measure to compensate workers for damages suffered during work.80 The relevance and adequacy

67 68 69 70 71 72 73 74 75 76 77 78 79 80

ecsr, Conclusions 2018, Latvia. ecsr, Conclusions 2014, Belgium. ecsr, Conclusions 2018, Andorra. ecsr, Conclusions 2018, Armenia. ecsr, Conclusions 2014, the Russian Federation 2018. ecsr, Conclusions 2018, Bosnia and Herzegovina. ecsr, Conclusions 2018, Latvia. ecsr, Conclusions 2014, Ukraine. ecsr, Conclusions 2018, Austria. ecsr, Conclusions 2003, Bulgaria. ecsr, Conclusions 2016, Italy. ecsr, Conclusions 2007, Romania. ecsr, Conclusions xiii-​3 (1995), Greece. ecsr Conclusions 2014, Finland.

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of such measures are assessed on a case-​by-​case basis.81 For example, when examining cases in individual countries, the Committee finds that the situation is inconsistent with the Charter when ‘workers performing dangerous or unhealthy work was not entitled to appropriate compensation measures, such as reduced working hours or additional paid leave’.82 The Committee did so in the Marangopoulos Foundation for Human Rights (MFHR) v. Greece case, where it found that Article 2 § 4 of the Charter had been violated. In the Committee’s view, Greek legislation did not require collective agreements to provide compensation for miners for the onerous nature of their work.83 Consequently, the Committee recalled that compensation measures such as one additional day as a holiday and a maximum weekly working time of 40 hours were considered inadequate in that they did not offer regular and sufficient time to recover to workers exposed to risks. Financial compensation cannot be considered a relevant and appropriate measure to achieve the aims of Article 2 § 4. Otherwise, all compensatory measures are necessary, which is a complex process requiring the involvement of all interested parties. Due to the complex implementation of Article 2 § 4 of the revised Charter, it is important for the labour inspectorate to be actively involved ‘in supervising compliance with the rules on reduced working hours, additional paid holidays or other relevant measures’.84 v

Article 2 § 5 –​Weekly Rest Period

The provision of Article 2 § 5 of the revised Charter concerning a weekly rest period is addressed to national authorities. States have been committed to providing ‘a weekly rest period which shall, as far as possible, coincide with the day recognised by tradition or custom in the country or region concerned as a day of rest’. The provision of Article 2 § 5 of the revised Charter fully implements the postulates of the Memorandum of 1953,85 as well as corresponding to the postulates of the ilo contained in the ilo Weekly Rest (Industry)

81 82 83 84 85

ecsr, Conclusions 2005, Statement of Interpretation on Article 2 § 4; ecsr, Conclusions xx-​3 (2014), Germany. ecsr, Conclusions 2014, the Netherlands; ecsr, Conclusions 2018, the Netherlands. ecsr, Marangopoulos Foundation for Human Rights (MFHR) v. Greece, complaint No. 30/​ 2005, decision on the merits of 6 December 2006, § 232–​236; ecsr, Conclusions 2018, Latvia. ecsr, Conclusions 2018, the Russian Federation. cm, Memorandum by the Secretariat-​General concerning the activities which the Council of Europe could properly carry out in the social sphere, 11 May 1953, Doc. 140, pt. 29 § 36.

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Convention86 and the ilo Weekly Rest (Commerce and Offices) Convention relating to weekly rest.87 Pursuant to Article 2 of the 1921 ilo Convention, weekly rest refers to a minimum break of 24 consecutive hours from work within a seven-​day period. Article 2 § 5 of the Charter guarantees a weekly rest period, which insofar as possible shall coincide with the day traditionally or normally recognised as a day of rest in the country or region concerned.88 As can be seen, the revised Charter does not provide an exact definition of a non-​working day, leaving this to the discretion of national authorities. In practice, it can be any day of the week. In most countries, all employees are entitled to a weekly rest period, usually Sundays.89 However, the rest period can be taken on a day other than the traditional day, either when the type of activity requires it, or for the reason of an economic nature. In all events, another day of rest during the week must be provided for.90 Pursuant to Article 2 § 6 of the revised Charter, information about a weekly rest period, as an important element of the employment relationship, is essentialia negotii of an employment contract or labour agreement, however, the conditions of rest time may be defined according to the preferences of the parties.91 The right to weekly rest is absolute, which means that ‘workers could not waive their right to weekly rest or have it replaced by financial compensation’.92 The right to weekly rest, however, can never be replaced by other benefits because in the Committee’s opinion ‘employees may not forfeit their weekly rest period or have it replaced by financial compensation’.93 However, in certain strictly stipulated national laws, the parties may agree to postpone the scheduled weekly rest. Although the rest period should be ‘weekly’, it may be deferred to the following week, as long as no worker works more than twelve days consecutively before being granted a two-​day rest period.94 In practice, the provision of Article 2 § 5 of the revised Charter means that employees have ‘at least one full day of rest per week’.95 The Committee has pointed out that: “(…) the safeguards are in place to ensure that workers are 86 ilo, Weekly Rest (Industry) Convention, 1921, No. C14. 87 ilo, Weekly Rest (Commerce and Offices) Convention, 1957, No. C106. 88 coe, Digest of the Case Law of the European Committee of Social Rights, 2018, p. 69. 89 ecsr, Conclusions 2018, Russian Federation. 90 Conclusions xiv-​2 (1998), Statement of Interpretation on Article 2 § 5; CoE, Digest of the Case Law of the European Committee of Social Rights, 2018, p. 70. 91 ecsr, Conclusions 2018, Georgia. 92 ecsr, Conclusions 2018, Bosnia and Herzegovina; Conclusions 2018, Turkey. 93 Karin Lukas, op. cit., p. 54. 94 coe, Digest of the Case Law of the European Committee of Social Rights, 2018, p. 69. 95 ecsr, Conclusions 2018, Moldova.

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entitled to a weekly rest period of at least twenty-​four hours, that they may not waive this right and that if a weekly rest period is deferred, it may not be deferred for more than twelve consecutive days”.96 Waiving or postponing the weekly rest period shall be provided for by the legislation.97 Periods of on-​call duty during a weekly rest period and during which an employee has not been required to work cannot be regarded as a weekly rest period.98 The right to weekly rest periods may not be replaced by compensation and employees may not be permitted to give it up.99 Derogations to this rule might be in conformity with Article 2 § 5 of the revised Charter when the postponement is truly exceptional and surrounded by strict safeguards.100 Among such derogations are: the authorisation of the labour inspectorate; the agreement of the trade union or, as the case may be, the representatives of the employees; or the possibility for the safety representative to react if the employer does not respect the relevant rules.101 States should report periodically whether it is legally possible to waive or extend the weekly rest period under an individual or collective agreement.102 vi

Article 2 § 6 –​Information on the Employment Contract

Article 2 § 6 of the revised Charter is a new provision that guarantees workers the right to be informed in writing about their terms of employment. Information in this regard ‘can be included in the employment contract or another document’.103 The fact that this regulation has been introduced to the revised Charter should be assessed very positively because it concerns the issue of certainty of working conditions, which is important to every worker, and the Charter of 1961 did not in any way refer to the question of the form of a contract between an employer and an employee. Although the provision is undoubtedly very necessary, its very placement in Article 2 § 6 of the revised 96 97 98 99 100 101 1 02 103

ecsr, Conclusions 2018, Latvia. ecsr, Conclusions 2018, Armenia. coe, Digest of the Case Law of the European Committee of Social Rights, 2018, p. 70; escr, Confédération Générale du Travail (CGT) v. France, complaint No. 22/​2003, decision on the merits of 7 December 2004, §§ 35–​39. coe, Digest of the Case Law of the European Committee of Social Rights, 2018, p. 70. Ibid. ecsr Conclusions 2010, Romania; ecsr Conclusions 2014, Sweden; ecsr Conclusions xx-​3 (2014), Denmark. ecsr, Conclusions 2018, Armenia. ecsr, Conclusions 2014, Republic of Moldova.

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Charter is criticised in the literature. Some believe that perhaps this provision should be placed at the very end of Article 2 the revised Charter, right after the regulation of night work.104 Article 2 § 6 the revised Charter is in full compliance with the provisions of Article 2 of the Council Directive on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship.105 According to this, in EU Member States, there is an ‘initial obligation to provide information, which can also extend to the title, grade, nature or category of the work for which the employee is employed’.106 Article 2 § 6 of the revised Charter, therefore, corresponds to the current standards for States to establish the minimum rules for the terms and conditions of employment of each employee, as expressed in the law, a collective agreement or an employment contract.107 The provision of Article 2 § 6 the revised Charter guarantees workers the right to written information at the start of their employment relating to the ‘essential aspects of the contract or employment relationship’. Workers should be informed in writing as soon as possible and in any event no later than two months after they start work.108 Article 2 § 6 the revised Charter thus specifies not only the form and time limit in which to confirm the concluded contract with an employee but also requires essentialia negotii, that is, the necessary components of an employment contract or employment relationship.109 According to the Committee, when starting employment, workers are entitled to written information covering at least the following elements: the identities of the parties; the place of work; the date of commencement of the contract or employment relationship; in the case of a temporary contract or employment relationship, the expected duration thereof; the amount of paid leave; the length of the periods of notice in case of termination of the contract or the employment relationship; the remuneration; and the length of the employee’s normal working day or week.110 This provision is not absolute because the 1 04 Klaus Lörcher, op. cit., p. 178. 105 Council Directive of 14 October 1991 on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship, No. 91/​533/​e ec, oj l 288, 18.10.1991, p. 32–​35. 106 ecsr, Syndicat de défense des fonctionnaires v. France, complaint No. 73/​2011, decision on the merits of 6 December 2006, § 18. 107 The Community Charter of the Fundamental Social Rights of Workers, adopted on 9 December 1989 by a declaration of all Member States, com(89) 471 final. 108 coe, Digest of the Case Law of the European Committee of Social Rights, 2018, p. 70. 109 ecsr, Syndicat de défense des fonctionnaires v. France, complaint No. 73/​2011, decision on the merits of 6 December 2006, § 17; ecsr, Conclusions 2003, Bulgaria; ecsr, Conclusions 2010, Andorra; ecsr, Conclusions 2010, Portugal. 110 ecsr, Conclusions 2018, Ukraine.

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Appendix to Article 2 § 6 of the revised Charter provides that States Parties “may provide that this provision shall not apply a) to workers having a contract or an employment relationship with a total duration not exceeding one month and/​or with a working week not exceeding eight hours” or “b) where the contract or employment relationship is of a casual and/​or specific nature, provided, in these cases, that its non-​application is justified by objective considerations”. Due to the necessity for guaranteeing an employee’s right to confirm essential elements of a contract or employment relationship, certain obligations have been imposed on States. It is the primary responsibility of States to ensure in their legislation that all measures have been implemented to ensure that workers are informed in writing, as soon as possible, of the essential aspects of the contract or employment relationship.111 Therefore, if the law imposes specific requirements for a contract or employment relationship, the documents submitted to employees for signing should refer to the appropriate point in the law.112 Employers cannot ignore this requirement. When establishing legislative measures, States should also take into account the specificity of given groups of employees to confirm working and employment conditions. This applies to seafarers’ contracts,113 civil servants,114 contractual public-​sector employees,115 and members of the armed forces and defence forces.116 States should inform in their periodical reports submitted to the Committee about any ‘amendments made to the legal framework and on what is done by the Labour Inspectorate to ensure compliance with the terms of the work contract’.117 A situation in a given country is inconsistent with the provision when the provisions of the national labour law do not ‘require employers to inform employees in writing of the key aspects of the employment relationship or of the employment contract’.118 The Committee also reviews new regulations introduced by States in their labour codes, unless a given regulation entered into force during the period under review. Then the Committee will examine the provisions during the next cycle of control.119 1 11 112 113 114 1 15 116 117 118 119

ecsr, Conclusions 2018, Austria. ecsr, Conclusions 2018, Moldova. ecsr, Conclusions 2018, Estonia. ecsr, Conclusions 2018, Turkey; ecsr, Syndicat de défense des fonctionnaires v. France, complaint No. 73/​2011, decision on the merits of 6 December 2006, § 12–​21. ecsr, Conclusions 2018, Austria. ecsr, Conclusions 2014, Hungary. ecsr, Conclusions 2018, Andorra; ecsr, Conclusions 2018, Malta. ecsr, Conclusions 2018, Bosnia and Herzegovina. ecsr, Conclusions 2018, Lithuania.

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Article 2 § 7 –​Night Work

The provision of Article 2 § 7 of the revised Charter is a new regulation regarding night work for all employees, which was not included in the Charter of 1961, although the postulates to include nightwork as one of the working conditions were included in the 1953 Memorandum.120 This document recognises that Member States should strive to achieve higher standards for night work than those imposed by legislation, national practice and the ilo. The need to regulate night work, in particular the work of women and young people, results from the fact that work at night is currently not prohibited in any of the CoE member States.121 Regulations on night work contained in Article 2 § 7 of the revised Charter are much more elaborate than those in the basic version, where only Article 8 § 4 (a) of the revised Charter dealt with the night work of pregnant women, women immediately after giving birth or nursing women.122 At present, Article 8 § 4 (a) is to be regarded as a lex specialis to Article 2 § 7 of the revised Charter, which applies to all employees working at night, and not only women during maternity. Night work is not defined in the revised Charter or any other CoE document.123 According to the logical interpretation, night work is work performed at night, which is not during the day. According to the CoE Staff Regulations, ‘night work is any work done in this way between 10 p.m. and 7 a.m. on the instructions of the competent superior authority’.124 The revised Charter has pointed out that domestic law or practice must define what is considered to be ‘night work’ within the context of this provision, namely what period is considered to be ‘night’ and who is considered to be a ‘night worker’.125 In light of the 1953 Memorandum, national authorities should use the terminology proposed in the ilo Night Work Recommendation.126 According to this, night work is: “(…) all work which is performed during a period of not less than seven consecutive hours, including the interval from midnight to 5 a.m., to be determined by the competent authority after consulting the most representative organisations of employers and workers or by

120 Memorandum by the Secretariat-​General concerning the activities which the Council of Europe could properly carry out in the social sphere, 11 May, 1953, Doc. 140. 121 ecsr, Conclusions 2016, Belgium. 122 Explanatory Report, ets 163, p. 3 § 27. 123 Ibid., p. 3 § 28. 124 coe, Staff Regulations of the Council of Europe, Appendix viii: Regulations on extra duties and night work. 125 ecsr, Conclusions 2014, Bulgaria; ecsr, Conclusions 2018, Georgia. 126 ilo, Night Work Recommendation Convention, 1990, No. C178.

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collective agreements”. Moreover, ‘this work should have an obvious justification and should be indispensable’. The addressee of Article 2 § 7 of the revised Charter is the national authorities that are obliged to provide adequate means of access to protective clothing, breaks during work and additional days off in exchange for night work, as well as other arrangements of rest periods for night workers.127 The measures which take account of the special nature of the work must at least include the following: (1) regular medical examinations, including a check-​up prior to assignment to nightwork; (2) the possibility of transferring to daytime work; and (3) regular consultation with workers’ representatives on the use of night work, the conditions in which it is performed and measures taken to reconcile workers’ needs and the special nature of night work.128 The measures can be compensatory, preventive or corrective. Legislative solutions should concern the establishment of statutory guarantees for all employees working only at night (bakers, security guards, wardens, public servants, persons working in the ritual sector of churches), shift workers and workers with special needs (women, young people and the elderly).129 States are obliged to regulate the admissibility of night work for the disabled and others who require additional breaks from night work. The regulations should include measures for remote night work or telework. According to the ECtHR, such regulations should be defined in advance at the statutory level by national authorities or in the work regulations by the employer.130 There shall be a legal requirement to consult worker representatives on such matters on a regular basis.131 Article 2 § 7 of the revised Charter requires regular medical examinations, including a check-​up prior to the assignment of night work.132 The law shall provide for a medical examination prior to beginning night work.133 This is because the efficiency of night work is much lower than that of daytime work. Night work causes employees to tire more quickly, which increases the number of accidents at work. National regulations should take into account that night work disturbs employees’ circadian rhythm, preventing recuperation,134 and also disturbs their family and social life, making contact with their household 1 27 Klaus Lörcher, op. cit., p. 179. 128 ecsr, Conclusions 2003, Romania; ecsr, Conclusions 2018, Estonia; ecsr, Conclusions 2018, Latvia. 129 ecsr, Conclusions 2018, Cyprus; ecsr, Conclusions 2018, Georgia. 130 ECtHR, 24 September 2002, Nerva and Others v. The United Kingdom, Final, No. 42295/​98. 131 ecsr, Conclusions 2018, North Macedonia. 132 ecsr, Conclusions 2014, Slovak Republic. 133 ecsr, Conclusions 2018, Moldova. 134 Andrzej Swiatkowski, op. cit. § 89.

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members and household duties difficult. It has an impact on the development of non-​communicable diseases.135 States should also not be indifferent to the issue of the admissibility of employing both legal guardians of a child at night, as well as the compensatory measures to which they are entitled.136 In the event of documented health problems, an employee should, as far as possible, have the right to change nighttime work to daytime work.137 Therefore, the free compulsory medical examination shall be provided by law to all workers about to take up night work.138 A night worker may, in certain circumstances, be reassigned to day work, on an occasional or permanent basis, if that is expressly provided for in the contract of employment or after the worker in question has voluntarily agreed to it.139 Information about night work belongs to essential aspects of the contract or employment relationship. The provisions should provide an employer with an opportunity to specify the exact hours of night work applicable to their employees in the contract or work regulations. However, an employer does not have to lay down the rules for night work in the same way for all employees if this is not provided for by law. An important measure is a financial compensation and other benefits for night work.140 States should provide additional statutory remuneration to workers for night work. They should also offer proportionately higher wages for overtime work during night hours than for overtime during the day.

Concluding Remarks

This chapter discussed the practical aspects of the right to fair working conditions as exercised by the esc States Parties. It has been shown that the obligations expressed in Article 2 § 1–​7 of the revised Charter constitute the fundamental human right to work. The implementation of this provision is in the interest of the Member States, which are, after all, bound by other standards of international labour laws, resulting from the ilo and who conventions, EU law and, above all, from Article 7 of the icesc.

135 Robert Tabaszewski, “The role of local and regional authorities in prevention and control of NCDs: the case of Poland”, bmc Int Health Hum Rights, Vol. 20, No. 17, 2020. 136 CoE, Digest of the Case Law of the European Committee of Social Rights, 2018, p. 71. 137 ecsr, Conclusions 2018, Georgia. 138 ecsr, Conclusions 2018, Bosnia and Herzegovina. 139 ecsr, Conclusions 2018, Andorra. 140 Karin Lukas, op. cit., p. 50.

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The analysis leads to the following conclusions. Firstly, the Committee’s examination of the States’ reports shows that a large number of States have some problems with the complete implementation of all the provisions of Article 2 § 1–​7 of the esc (rev). The Committee has positively assessed only two countries, Romania and Latvia, in all seven points, as implementing all aspects of the right to fair working conditions. This means that unlike in the case of complaints to the ECtHR, the division into the ‘new’ and ‘old’ CoE Member States is irrelevant. Secondly, States do not deal with all obligations under Article 2 equally well. The biggest problem is fully implementing their obligations under Article 2 § 1 of the revised Charter. In 2018 the Committee has noted that the national legislation did not comply with this provision in as many as 12 countries. These are Armenia, Cyprus, Estonia, Georgia, Lithuania, Malta, the Netherlands, Norway, Serbia, Slovakia, Slovenia and Turkey while the Committee in 2014 has accused twenty States of non-​performance: Andorra, Armenia, Czech Republic, Estonia, Finland, France, Georgia, Hungary, Iceland, Ireland, Italy, Lithuania, Malta, Norway, Poland, Slovak Republic, Slovenia, The former Yugoslav Republic of Macedonia., the Netherlands and Turkey. In the case of Article 2 § 2 of the revised Charter, the Committee has concluded that the situation in 2018 was inconsistent in seven countries: Bosnia and Herzegovina, Georgia, Malta, Moldova, the Netherlands, Norway and Slovakia. In 2014 the Committee concluded that the situation in the United Kingdom, Greece, Georgia, Malta, the Netherlands, Portugal, Slovakia was not in conformity with Article 2 §. Another problematic provision is Article 2 § 3 of the revised Charter, the Committee in 2018 has accused four States of non-​performance: Bosnia and Herzegovina, Cyprus, The Russian Federation, Moldova and the Netherlands (In 2014 it was 4 countries: Belgium, the Netherlands, Moldova and Hungary). Thirdly, it is relatively easy for States to comply with the standards that have been introduced by the provisions of the revised version of the Charter. This applies, in particular, to the provisions of Articles 2 § 4 and § 6 of the revised Charter. When examining the latter provision, the Committee has found that as many as 18 countries meet their obligations, and only three have violated them. The only exception is the full implementation of Article 2 § 7 of the esc (rev), which, according to the Committee, has been failed by eight countries: Andorra, Bosnia and Herzegovina, Estonia, Georgia, Moldova, North Macedonia, Serbia and Ukraine. Therefore, the precise method of examining the actual fulfilment of States’ obligations adopted by the Committee, as well as the progressive and social nature of the right to work, and not only the formal regulation of the right to fair working conditions in the legislation of a given country, should be positively assessed.

…

article 3

The Right to Safe and Healthy Working Conditions Ana Cristina Ribeiro Costa





With a view to ensuring the effective exercise of the right to safe and healthy working conditions, the Parties undertake, in consultation with employers' and workers' organisations: 1 to formulate, implement and periodically review a coherent national policy on occupational safety, occupational health and the working environment. The primary aim of this policy shall be to improve occupational safety and health and to prevent accidents and injury to health arising out of, linked with or occurring in the course of work, particularly by minimising the causes of hazards inherent in the working environment; 2 to issue safety and health regulations; 3 to provide for the enforcement of such regulations by measures of supervision; 4 to promote the progressive development of occupational health services for all workers with essentially preventive and advisory functions.

In the esc, the subject of occupational health and safety assumes special prominence, reflected in several norms. However, Article 3 of the esc is devoted exclusively to occupational safety and health. Its wording has been changed in the Revised Social Charter, with the introduction of a new number 1 and a number 4, and the enhancement of the consultation with employers’ and workers’ organisations, which was transferred to the article’s intro. There was once a proposal that another paragraph would be added providing for the payment of compensation to people injured as a result of a breach of safety and health regulations, but this was rejected.1 Even though some legal scholars understand that, within this matter, the esc made but very general efforts of merely formal character,2 the truth is

1 As well as a proposal to add self-​employed and seamen within the Article’s subjective field of application. On the drafting history, cfr. Karin Lukas, The Revised European Social Charter. An article by article commentary, Cheltenham, Edward Elgar Publishing, 2021, pp. 62–​63. 2 Ana Belén Muñoz Ruiz, El sistema normativo de la prevención de riesgos laborales, Valladolid, Lex Nova, 2009, p. 70.

© Koninklijke Brill NV,

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that the Charter was the first European legislative instrument to provide for a human right to healthy and safe working conditions, allowing it to be claimed in front of an international institution.3 In fact, the European Convention on Human Rights does not provide for such a protection, although the rights provided by the Convention can be useful to interpret the Charter’s norms. As such, Article 3 is related to Article 2 of the Convention (Right to life), and both rights protect the physical and mental integrity of individuals. Besides, Articles 3 and 8 of the echr (prohibition of torture and right to respect for private and family life) allow a ricochet protection of the right to safe and healthy working conditions as well.4 Within the esc, this provision relates to Article 2 (4), Article 7 (1), (2), (9) and (10), Article 8 (5), Article 11, Article 12,5 Article 22 (b) and Article 26, respectively, the right to just conditions of work, the right of children and young persons to protection, the right of employed women to protection of maternity, the right to protection of health, the right to take part in the determination and improvement of the working conditions and working environment, and the right to dignity at work. We must stress, however, that the ecsr has analysed Article 3 along with other provisions such as Article 2 (1) –​cfr. ecsr, Confédération générale du travail (CGT) v. France, Complaint No. 20/​2003, decision on the merits of 8 December 2004, where the Committee has noted that “the provisions of the Revised Charter concerning working time are intended to protect workers’ safety and health in an effective manner. Every worker must therefore receive rest periods adequate for recovering from the fatigue of work or as a preventive measure to reduce risks of health impairment which could result from accumulation of periods of work without the necessary rest. (…) The Committee considers that the “périodes d’astreinte” during which the employee has not been required to perform work for the employer, although they do not constitute effective working time, cannot be regarded as a rest period in the meaning of Article 2 of the Charter, except in the framework of certain occupations or particular circumstances and pursuant to appropriate 3 Katarzyna Lasak, “Health and Safety in the European Social Charter”, The International Journal of Comparative Labour Law and Industrial Relations, 25, No. 2, 2009, p. 110. We may moreover mention two instruments from the Council of Europe: the European Convention on Social and Medical Assistance, signed in Paris in 1953, and the European Code of Social Security (Revised), signed in Rome in 1990, which within certain provisions values specific occupations or conditions of the occupational activity –​for eg. Article 27 (1) a). 4 Carole Nivard, La justiciabilité des droits sociaux. Étude de droit conventionnel européen, Brussels, Bruylant, 2012, pp. 328 and 430. 5 Both Articles 11 and 12 were analysed along with Article 3 in the case ecsr, Marangopoulos Foundation for Human Rights v. Greece, complaint No. 30/​2005, decision on the merits of 6 December 2006, hereinafter referred to as Marangopoulos.

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procedures” (§34 and §35). In fact, some legal scholars refer to Article 3 as a “sort of umbrella right for the former [Article 2]”.6 In any case, later on the ecsr concluded that despite that, “the claim concerning risks related to the organisation of work, in particular the working time, does not come within the scope of Article 3 of the Revised Charter”.7 Some authors also point that a dynamic interpretation of Article 3, along with other provisions from the Charter, allow the recognition of a right to a healthy environment.8 Article 3 of the esc is written in “rather general terms”, which allows it to be “readily adaptable” to changes within this field.9 This coincides with the broad interpretation of the concepts provided for in the European Unions’ Council Directive 89/​391, of 12 June 1979, on the introduction of measures to encourage improvements in the safety and health of workers at work (hereinafter referred to as Framework Directive 89/​391). This reading of the Framework Directive 89/​391 has been given by other international bodies, especially by the cjeu,10 with the intention of covering the protection of all workers in all sectors11 and all dimensions of health.12 6 7 8

9 10

11

12

Klaus Lörcher, “The right to safe and healthy working conditions”, in aavv, The European Social Charter and the Employment Relation, editors Niklas Bruun, Klaus Lörcher, Isabelle Schömann, Stefan Clauwaert, etui, Oxford and Portland, Oregon, 2017, p. 182. ecsr, Confédération Française de l’Encadrement CFE-​CGC v. France, complaint No. 56/​ 2009, decision on the merits of 23 June 2010 (§71). Some authors mention it is an indirect recognition –​Julia Thibord, Emmanuel Daoud, “En questions: l’inclusion du droit à un environnement sain dans la Charte Sociale Européenne”, La Semaine Juridique –​Édition Social, No. 50, 14 December 2021, p. 4. Others assess that the recognition was explicit in the Marangopoulos case –​Mirja Trilsch, “European Committee of Social Rights: The right to a healthy environment”, International Journal of Constitutional Law, volume 7, No. 3, July 2009, p. 530. John Darcy, David Harris, The European Social Charter, New York, Transnational Publishers Inc., 2001, p. 67. Joaquín Huelin Martínez De Velasco, “El acervo comunitario sobre prevención de riesgos laborales”, in aavv (coord. Chamorro, J. M.): La potestad sancionadora de la Administración en el ámbito de los riesgos laborales, Estudios de Derecho Judicial, n.º 100, Madrid, Consejo General del Poder Judicial, 2006, p. 54. The scope of application of the Framework Directive 89/​391 includes “all sectors of activity, both public and private”, with the exception of the cases in which certain “characteristics peculiar to certain specific public service activities (…) or to certain specific activities in the civil protection services inevitably conflict with it” (Article 2, paragraphs 1 and 2). However, this derogation will only apply in specific and exceptional cases to bodies such as the armed forces, the police or civil protection. Therefore, a principle of universality of protection is stipulated, encompassing a broad concept of worker and employer (Article 3, paragraphs a) and b). The jurisprudence of the CJEU has already clarified, in several decisions, that the exceptions to the scope of application of the above-​mentioned Framework Directive must be interpreted restrictively. Cfr. the decision of the cjeu, 12 November 1996, United Kingdom of Great Britain and Northern Ireland v. Council of the European Union, C-​84/​94, where it was held that the

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As such, Article 3 of the esc defines occupational safety and health in reasonably wide terms.13 Consequently, the Committee imposed a wide objective and subjective protection14 throughout the national territories as well. While evaluating Article 3(2), the Committee requested Portuguese Government comments on the implementation of legislation in practice, as well as information on other bodies with inspection competence in the autonomous regions of Azores and Madeira.15 The reference to an obligation to “undertake” is quite important, as the original text mentioned that States should “provide for adequate protection of life and health during work”, expression which the workers’ representative demanded to be modified,16 enforcing State Parties’ duties under this provision. Ut supra, the obligation to consult employers and workers to implement these policies was established in the preamble to Article 3 of the esc, in its revised version.17 It is written similarly to the International Labour Organization’s (ilo) Conventions,18 even though workers had claimed the obligation of Member States would be of “association” with employers’ and workers’ organisations.19

13 14 15 16 17 18

19

concepts of “working environment” and “health” must be interpreted broadly, namely to embrace “all factors, physical or otherwise, capable of affecting the health and safety of the worker in his working environment”. Katarzyna Lasak, cit., p. 111. Even though the legislation and control procedures may be distinct –​Ana Belén Muñoz Ruiz, cit., p. 74. ecsr, Conclusions 2013, Portugal. international labour organization, “The European Social Charter and international labour standards”, International Labour Review, volume 84, No. 5, May, Geneva, 1961, p. 360. Thus, the ecsr’s findings on former Article 3 (3) have to be considered as being applicable to the current version of the rule. On the advantages of the participation of those organisations, cfr. Katarzyna Lasak, cit., p. 113. We cannot neglect to mention the ilo Convention No. 155, the Occupational Safety and Health Convention (1981), demanding from the States the implementation of a national policy of occupational health and safety, and the ilo Convention No. 187 on the Promotional Framework for Safety and Health at Work (2006), On the importance of ilo’s Conventions to the theme of occupational health and safety, cfr. Antonio Ojeda Avilés, Derecho Transnacional del Trabajo, Tirant lo Blanch, Valencia, 2013, p. 128. Both have been recently considered by the International Labour Conference as fundamental conventions, associated to the newest fifth fundamental principle among the ilo’s Fundamental Principles and Rights at Work. Ana Belén Muñoz Ruiz, cit., p. 71.

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This consultation shall encompass not only national, regional and local levels, but also a company level. The Committee has clarified that, in the absence of any workers’ representative, given the size of the company,20 there must be direct contact between the employer and workers for this purpose.21 The previous version of the Article referred this consultation would take place “as appropriate”, an expression which has not remained in the current version, which allows us to conclude there is no margin for appreciation of the need to consult these organisations, which shall occur under any circumstances and is now compulsory. In fact, the reference to the consultation with employers’ and workers’ organisations at the article’s intro must be seen, in our view, as enhancing that consultation of those partners shall be demanded when discussing any of the matters referred to in the subsequent paragraphs.22 i

Article 3 § 1

The rule requires that parties to the esc shall adopt national strategies to implement the right proclaimed therein, adapting such policies and their legal frameworks to the latest technical developments and scientific updates, which imposes their periodical assessment and review.23 It also requires the protection of more vulnerable workers.24

20

21 22

23

24

This idea is once again aligned with the cjeu’s perspective on the matter, as this Court has already had an opportunity to state that adapting occupational safety and health standards to small and medium-​sized enterprises does not mean that they are exempt from complying with them. Article 22, subparagraph b) stresses the need for consultations on this issue. John Darcy, David Harris, op. cit., p. 112. John Darcy, David Harris, cit., p. 260. The Committee concluded Armenia is not in conformity with Article 3(1) because it did not address the Committee’s questions concerning consultation with employers’ and workers’ organisations. ecsr, Conclusions 2017, Armenia. ecsr, Conclusions 2003, Bulgaria and ecsr, Conclusions 2005, Lithuania. In these, the Committee stated that policies should be evaluated and reviewed and be part of other public policies such as employment, gender and disability policies, among others. Note that in the 2013 Conclusions concerning Portugal, the Committee asked the national authorities whether the policies implemented were periodically reviewed in light of changes in risk. Despite this, the legal doctrine points out that Article 3(1) has not been characterized by the Committee as a dynamic provision –​John Darcy, David Harris, cit., p. 69. Also reflected in Articles 7 (2) and 8 (4) and (5) of the esc –​Katarzyna Lasak, cit., p. 114.

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A culture of prevention shall be privileged.25 The Conclusions on Slovak Republic in 2017 were that it is not in conformity with this provision as, among other problems, “it has not been established that occupational risk prevention is organised at company level, work-​related risks are assessed, and preventive measures geared to the nature of risks are adopted”.26 Besides compliance at company level, the esc demands prevention to be considered at government level, which shall be executed by labour inspection bodies. In fact, Article 3 (1) of the esc also imposes the obligation to disseminate the rights provided by the provision so that the effective implementation of the right to healthy and safe working conditions is as swift as possible.27 The methods to be used by States should include training (qualified personnel); information (statistics and dissemination of knowledge); quality assurance (professional qualifications, certification systems for facilities and equipment); and research (scientific and technical expertise).28 The Committee found that the latter was not carried out by public authorities in Albania, thus the situation in this country was considered to be in non-​conformity with the current provision.29 The Committee has already made it clear that the Charter does not impose a single model for compensation for occupational contingencies, which may follow the same scheme as that for ordinary contingencies, as is the case in Greece.30 This conclusion is quite interesting, as we may find different schemes to compensate workplace accidents and occupational diseases around Europe. For instance, in Portugal, the employers’ objective liability in case of a workplace accident must be transferred to a private insurance system (due to Article 79 of Law No. 98/​2009, of 4 September, on the legal regime of

25 26 27 28

29 30

Klaus Lörcher, cit., p. 186. ecsr, Conclusions 2017, Slovak Republic. Katarzyna Lasak, cit., p. 111. ecsr, Conclusions 2003, Bulgaria. Armenia was recently found not complying with this provision: ecsr, Conclusions 2021, Armenia. Ukraine was censored for not providing information of activities of research within the field of psychosocial risks –​ecsr, Conclusions 2021, Ukraine. ecsr, Conclusions 2017, Albania. Conclusion of the Committee in Marangopoulos (§226). This idea is important because we find substantially different systems among European countries: schemes that distinguish between occupational and ordinary contingencies, and those that do not; compensation schemes under social security, compensation by mandatory private insurance systems, and schemes that combine both; systems that distinguish between accidents at work and occupational diseases, and schemes that only have a single concept of occupational contingency.

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workplace accidents and occupational diseases reparation). This provision has remained as an originality of the Portuguese system since 1919 to the present day, and today it is one of the few European regimes that is exclusively based on this mandatory private insurance scheme.31 Regarding consultation with employers’ and workers’ organisations for the purposes of Article 3 (1), it encompasses not only cooperation between authorities and those organisations, but also the coordination of their activities, which shall be performed by specialised consulting bodies with representation from the three parties, either permanent or ad hoc, as well as by representing mechanisms at a company level.32 ii

Article 3 § 2

Safety and health regulations must encompass a variety of issues resulting from the development of occupational risks. Throughout the years, States have proven to adopt legislation within various themes, some of them in line with EU legislation, in varied issues such as “aerosol dispensers; transportable pressure equipment; protection of workers against injuries caused by sharp implements when providing healthcare services, including services provided in hospitals; (…) protection of workers against ionising radiation (…); safety on board passenger ships; education, training and professional rights of seafarers; 31

32

In fact, within the EU, only Belgium and Finland have similar systems, while outside the EU, Norway, the USA and Australia have an identical regime. Although in Norway the situation is sui generis, since the private insurance complements the level of compensation assured by the Social Security system, covering the difference between its payments and the actual economic loss, overlapping with the public system, and giving the injured party the option of an alternative, more honest, system for settling the claim. On this subject, see Arnaldo Filipe da Costa Oliveira, “Nota sobre a evolução recente do regime do seguro obrigatório de acidentes de trabalho para trabalhadores por conta de outrem –​ ou das vantagens das ‘relações de família’”, Revista de Direito e de Estudos Sociais, nos. 1–​3, 2013, p. 123, footnote 6. On the role of the Caisses d’assurance retraite et de la santé au travail in France, see Franck Héas, “La prévention des risques psychosociaux en droit du travail: du rôle de la loi et de la négociation collective”, in aavv, Risques psychosociaux en Droit Social. Approche juridique comparée France/​Europe/​Canada/​Japan, dir. Loic Lerouge, Paris, Dalloz, 2014, p. 63. Klaus Lörcher, cit., pp. 188–​189. An example of non-​conformity due to non-​compliance of consultation in practice may be seen at ecsr, Conclusions 2021, Albania. In ecsr, Conclusions 2021, Cyprus, the Committee clarified that safety representatives and safety committees must be consulted in the implementation of national policies and strategies at enterprise level. These findings by the ecsr might be transposed into the appreciation of the role of consultation in what concerns the other paragraphs of Article 3.

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working hours and rest period of seamen on passenger and cargo vessels; continuing airworthiness of aircraft and aeronautical products, parts and appliances; transport accident investigation”,33 among many others. However, with regard to the legislation issued by the States, the Committee has enhanced the importance of covering “stress, aggression and violence specific to work, especially for workers under atypical working relationships”.34 More recently, the ecsr has shown concern with risks arising from digital and platform economy, and has noted that the States Parties shall take measures to limit and regulate electronic monitoring of workers.35 Besides, the Committee has been particularly alert to the risks posed by asbestos. The Committee defined its preference for a total ban of the use of asbestos36 and suggested that governments should be more transparent and indicate whether the national authorities had drawn up an inventory of all contaminated buildings and materials.37 It questioned Parties whether employers were required to dispose of asbestos-​containing stock and if measures had been taken to ensure the identification of buildings in which asbestos was used.38 Moreover, ionising radiation was particularly addressed by the ecsr, taking into account not only EU Directives, but also other initiatives, such as the recommendations of the International Commission on Radiological Protection.39 As such, legal scholars have defined a list of risks covered by the provision, which includes work equipment, hazardous agents and substances, risks connected with certain sectors and risks related to psychological factors.40 Moreover, the Committee has already clarified that, although the esc does not define the specific occupational risks to be considered, the risks recognized by the scientific community should be taken into consideration, as well as the standards recognized by international instruments such as ilo Conventions 33 34 35 36 37

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ecsr, Conclusions xxi-​2 (2017), Iceland, Article 3 § 1. ecsr, Conclusions xx-​2 (2013), Statement of Interpretation on Article 3. ecsr, Conclusions 2021, Albania. John Darcy, David Harris, cit., p. 69. This body believes that such a ban on the use, production and sale of asbestos and products containing it would guarantee a more efficient protection of Article 3 esc. ecsr, Conclusions 2009, Spain. Cfr. Alberto Arufe Varela, Jesús Martínez Girón, “La condena del Consejo de Europa a España, hecha pública en enero de 2010, por sus incumplimientos de la Carta Social Europea en materia de seguridad y salud laboral”, Anuario da Facultade de Dereito da Universidade da Coruña, Coruña, Universidade da Coruña, 2011, p. 285. For some legal scholars this requirement points to the relationship between Articles 3 and 11 of the esc –​John Darcy, David Harris, cit., p. 69. ecsr, Conclusions xiv-​2 (1999), Portugal. ecsr, Conclusions xiv-​2 (1999), Netherlands, Article 3 § 1. Klaus Lörcher, cit., p. 190.

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and Recommendations and EU Directives, which shall be decisive to determine compliance with the Charter.41 For instance, in the Marangopoulos decision, the ecsr relied on environmental standards such as the United Nations Framework Convention on Climate Change, the Kyoto Protocol and European Union Directives.42 In any case, in 1998 the Committee made it clear, in relation to Italy, that although European Union legislation does not set a maximum limit on benzene exposure values, a limit must be determined by the esc signatory States.43 Taking this into consideration, we may conclude that even though the ecsr accepts that other international legislation is decisive to clarify the esc, the Charter has its own interpretation and may be more demanding than the other referred instruments.44 Furthermore, under the number 2 of Article 3, the Committee has been focusing on whether the national legislations are being inclusive enough in the size of the companies covered.45 The xiii-​1 conclusions for Greece, issued in 1993, concerning at that point the previous version of Article 3 (1), had already 41

42 43 44

45

As stated in the ecsr Conclusions xiv-​2, Statement of interpretation on Article 3 or more recently in ecsr, Conclusions 2021, Andorra. In fact, States will have complied with this general requirement if they have transposed most EU occupational safety and health legislation into their national law. The Committee’s conclusion in the Marangopoulos case was reinforced by the case law of the ECtHR, 24 October 2014, Brincat and others v. Malta, No. 60908/​11, 62110/​11, 62129/​11, 62312/​11 e 62338/​11. As such, we can expect the Committee to conclude that risks arising from exposure to Covid should be addressed by Member States. Pointing out some national law that has referred to the esc’s standards, cfr. Carlos Hugo Preciado Domènech, “La seguridad y salud en el trabajo. La virtualidad aplicativa de la Carta Social Europea en tiempos de pandemia”, Estudios financieros. Revista de trabajo y seguridad social: Comentarios, casos prácticos: recursos humanos, No. 460, Ejemplar dedicado a: La Carta Social Europea revisada y el protocolo de reclamaciones colectivas: ¿abre su ratificación una revolución jurídico-​social?, 2021, pp. 218–​228. Thus, the obligation of result derived from the Kyoto Protocol is reinforced by an obligation of conduct derived from the esc. Mirja Trilsch, cit., p. 538. ecsr, Conclusions xiv-​2 (1999), Italy. This is clear for instance in other esc provisions related to occupational health and safety issues such as Article 2 (4) where besides demanding that the Parties undertake “to eliminate risks in inherently dangerous or unhealthy occupations” the esc also requires that “where it has not yet been possible to eliminate or reduce sufficiently these risks” Parties must “provide for either a reduction of working hours or additional paid holidays for workers engaged in such occupations”. This confirms the idea that the elimination of risks may not be feasible, and, in this case, employees exposed to particularly hazardous activities shall have the necessary additional time to recover from the stress and fatigue associated with these activities. This is a provision where we believe the esc has gone far beyond other international instruments. About the relation of occupational health and safety with the companies’ size, cfr. our Ana Cristina Ribeiro Costa, “Pequenas e médias empresas e segurança e saúde no

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determined that all companies should be covered by occupational safety and health policies, regardless of the number of employees.46 In 2017, in Germany’s report on Article 3 (3), the Committee recalled that State Parties must implement measures to focus labour inspection on small and medium-​sized companies and stated that it was still waiting for Germany’s answer to their previous question, an omission that would be considered as a non-​conformity if repeated in the following report.47 As concerns economic sectors, a broad approach is also demanded by the Committee, which stands that there must be a systematic policy that covers an entire sector.48 Moreover, the Committee has a subjective, broad approach, which means employees should be protected regardless of the nature of their relationship. For example, in conclusions xiii-​4, the Committee concluded that, in Belgium, the protection of farmers was at stake, and in conclusions xiv-​2, that of homeworkers.49 As for Portugal, the Committee stated in its conclusions xiv-​2 that the fishing industry should also be covered by occupational safety and health standards. In its 2013 conclusions, while concluding that Portuguese legislation and practices were in conformity with article 3 (2), the Committee requested more information on the practical application of the legal provisions to temporary agency workers and details on how this category of workers is represented, as well as information on the application of this issue to domestic workers. On the following Conclusions, dated 2017, the Committee recalled its request for information, particularly on whether temporary, agency and fixed-​term workers are entitled to representation at work.50 Temporary agency workers had been addressed by the Committee previously, in 2003, when the Committee concluded that France would have to take into account the protection of these precarious workers, particularly

46 47 48

49 50

trabalho –​status quo, desafios e um novo rumo”, Direito e Justiça. Revista da Faculdade de Direito da Universidade Católica Portuguesa, Estudos dedicados ao Professor Doutor Bernardo da Gama Lobo Xavier, vol. i, Lisbon, Universidade Católica Editora, 2015, particularly pp. 147–​153. ecsr, Conclusions xiii-​1 (1993), Greece. ecsr, Conclusions 2017, Germany. ecsr, Conclusions vi (1979), Ireland. Even so, this does not mean that the regulation and control proceedings shall be the same for all the sectors –​cfr. Ana Belén Muñoz Ruiz, cit., p. 74. In fact, rules may be written in rather general terms and adapted to the type of activity, considering whether it is relatively risk-​free –​Klaus Lörcher, cit., p. 195. ecsr, Conclusions xiii-​4 (1996), Belgium and ecsr, Conclusions xiv-​2 (1999), Belgium. ecsr, Conclusions xiv-​2 (1999), Portugal ; ecsr, Conclusions 2013, Portugal and ecsr, Conclusions 2017, Portugal.

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concerning their medical surveillance and the articulation between temporary-​ work agency and user undertaking. Besides, the Committee concluded the legislation on the protection of self-​employed workers was also insufficient, in violation of article 3 (2).51 In relation to Estonia, in 2005, the Committee also considered that there was non-​compliance due to the lack of protection of self-​employed workers, considering these are usually employed in high-​risk sectors.52 In the 2009 report on the conformity of Spanish legislation and practices, the Committee concluded, likewise, that the scope of the legislation and provisions on occupational safety and health for autonomous workers, of which there is a large expression in Spain, was not sufficient.53 Finally, in 2017, the Committee’s report led to the conclusion on non-​conformity of Germany’s regulations on the grounds that certain categories of self-​employed workers are not sufficiently covered.54 The same conclusion was reported in Hungary but referring to domestic workers and other categories of workers as well.55 More recently, Serbia was also found in non-​conformity due to lack of information on the standard of protection for temporary, interim and fixed-​term workers, and exclusion of domestic workers from the application of the law.56 As such, we may conclude that number 2 of this article demands legislation to encompass risks in a broad sense, protecting all employees from any employer, regardless of their status, and even encompassing other forms of labour such as self-​employed workers. This conclusion aligns with the ilo

51 52 53 54

55

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ecsr, Conclusions 2003, France. ecsr, Conclusions 2005, Estonia. ecsr, Conclusions 2009, Spain. Cfr. Alberto Arufe Varela, Jesús Martínez Girón, cit., p. 287. ecsr, Conclusions 2017, Germany. In 2021, the Committee also found Andorra and Moldova not in conformity with the Charter due to an inadequate protection of self-​ employed workers. ecsr, Conclusions 2021, Andorra and ecsr, Conclusions 2021, Moldova. Conclusions 2017 Hungary. In 2021, conclusions were reaffirmed by the ecsr regarding domestic workers and self-​employed regarding both Hungary (ecsr, Conclusions 2021, Hungary) and Slovak Republic (ecsr, Conclusions 2021, Slovak Republic). Same outcome had Albania, which was found by the Committee not in conformity with the Charter due to inadequate protection of temporary agency workers and lack of information on domestic and home workers. ecsr, Conclusions 2021, Albania. ecsr, Conclusions 2021, Serbia. Romania and the United Kingdom were also reproached due to lack of protection of domestic workers –​ecsr, Conclusions 2021, Romania, and ecsr, Conclusions xxii-​2 (2021), United Kingdom.

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conclusions, addressed for instance at ilo’s 100th anniversary,57 namely the establishment of a universal labour guarantee for all workers, regardless of their contractual regime, including the right to a wage that ensures adequate living conditions, maximum working time limits and protection of occupational health and safety conditions. Article 3 (2) also recalls that companies’ dimension and the activities performed are not relevant to limit the esc’s protection, even though those particular issues are sometimes dealt with when the Committee is appreciating article 3 (1). iii

Article 3 § 3

The previous paragraph 2 became paragraph 3 after the esc’s Revision, and this is a truly remarkable provision. Its interpretation by the Committee has been notable, demanding legislation to be adequately implemented through inspection services and through the application of effectively dissuasive civil and criminal sanctions.58 The Charter is intended to be a living instrument,59 protecting rights not only in theory, but also in practice. Thus, if the legislation is not effectively applied and rigorously supervised, the proper implementation of the Charter cannot be achieved. This demands that inspection bodies have enough competence, resources and institutional capacity, and address small and

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international labour organization, “Work for a brighter future –​Global Commission on the Future of Work”, Genebra, at https://​www.ilo.org/​wcm​sp5/​gro​ups /​pub​lic/​-​-​-d​ grepo​rts/​-​-​-​cabi​net/​docume​nts/​publ​icat​ion/​wcms​_​662​410.pdf, 2019, accessed 22-​01-​2019, p. 12. The study led by Alain Supiot (aavv, 2016, Au-​delà de l’emploi. Nouvelle édition augmentée de Les voies d’une vraie réforme du droit du travail, dir. Alain Supiot, Flammarion, Paris, p. 293) had already concluded that a certain set of social rights should apply to economically dependent workers. ecsr, Conclusions i (1969), Statement of Interpretation on Article 3 § 2, currently Article 3 § 3. Important statement from the Committee that can be read at Marangopoulos. The same expression is used with reference to the European Convention on Human Rights, “an instrument that should be interpreted in accordance with the current needs, and granting effective and not theoretical rights to all individuals, and, finally, by introducing in its case law the theory of positive obligations” –​Giorgio Malinverni, “The Court of European Human Rights, the protection of social rights, its relationship with the European Committee of Social Rights”, in aavv (dir. Marilisa d’Amico and Giovanni Guiglia): European Social Charter and the challenges of the xxi century. La Charte Sociale Européenne et les défis du xxie siècle, Naples, Edizioni Scientifiche Italiane, 2014, p. 98.

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medium-​sized companies, regardless of how they actually organise and of the resources they use.60 In this sense, the Committee has appreciated the statistical data, among which the rates of work-​related accidents,61 particularly fatal ones, pointing out that national legislations should allow inspectors to enter any workplace, including residential premises, without prior notice, authorizing them to make any checks deemed necessary, including taking samples for analysis and taking emergency measures in case of immediate danger to the health and safety of workers. Inspections should occur systematically and deal with all activities and categories of workers, and inspectors must keep up with legal and technological developments. To analyse the effectiveness of inspection, the Committee requests States to indicate in their reports the number of companies supervised and within the inspection’s supervision, the number of workers covered, the number of inspections carried out, and the number of inspectors involved.62 Thus, there will be a violation of the Charter if the number indicated is deemed insufficient.63 The sanctions shall also be deterrent, thus the Committee demands information on means of enforcement, numbers of prosecutions, administrative sanctions, and factors that influence the severity of the penalty applied.64 For example, in relation to France, in its 2007 conclusions, the Committee stated that the frequency of work-​related accidents in that country was too high to consider Article 3 was being respected,65 and in 2017 the Committee 60 61

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Klaus Lörcher, cit., p. 193. Even though resources should be adequate and sufficient –​ Karin Lukas, cit., p. 70. One of the reasons given for Greece’s conviction in the Marangopoulos case was precisely the low effectiveness of labour inspection, as evidenced by the high number of accidents occurring in Greece, above the European average. The Committee’s 2015 findings in relation to Armenia determined that a variety of information was missing, namely statistics on the activity carried out, including on violations found by the inspection authorities. Katarzyna Lasak, cit., p. 116. Recently, Montenegro was found not in conformity due to lack of information on the proportion of workers covered by inspection and percentage of companies which underwent through a health and safety inspection during the reference period, among other defaults. ecsr, Conclusions 2021, Montenegro. Ibid., pp. 117–​119. John Darcy, David Harris, op. cit., p. 71. ecsr, Conclusions 2007, France. Addressing this issue, cfr. Sara Brimo, L’État et la protection de la santé des travailleurs, Parism Lextenso Éditions, 2012, p. 171. The 2003 Conclusions on Slovenia’s report state that there is non-​compliance with the standard if over several years the frequency, in absolute or average terms, is clearly too high for it to be concluded that occupational safety and health is effectively being ensured. ecsr, Conclusions 2003, Slovenia. However, the criterion for evaluating trends in occupational diseases has not been established by the Committee yet, which recognises the difficulty in

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still concluded that measures to reduce the number of work-​related accidents should be taken.66 Also, the Committee’s conclusions in 2009 on the application of this provision regarding Portugal were that the situation did not comply with the provision, since the number of fatal accidents was clearly high and the measures to reduce this number were inadequate.67 Besides, the ecsr also appreciated the reporting systems, concluding that in certain countries they were not accurate and there was an under-​report or concealing of work-​related accidents and occupational diseases.68 It thus demands that the collection and presentation of data on these contingencies is reliable, exhaustive and in accordance with accepted statistical methods.69 However, this innovative idea of the Committee to control the effectiveness of the measures taken by monitoring the frequency of inspections and the rates of occupational contingencies is worthy of criticism, as it may be unreliable, since the numbers do not always reflect reality. In fact, there may be numerous inspections, but without any real control over safety and health conditions at work. There may be a high number of work-​related accidents that are typical of countries where dangerous activities prevail (such as construction or others). On the other hand, reduced numbers of work-​related accidents may not reveal the true extent of the problem, namely because they may hide the data not reported to the official entities.70 At the same time, as different regimes concerning compensation are applicable among European countries, some numbers may be “disguised” as common accidents and diseases when they are in fact work-​related.71 In this sense, the reporting method does not consider each country’s specific method for data processing, nor does it consider the particularities of each country on the collection of that information.

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determining it in view of the time lapse between the emergence of the risk, its identification and recognition of the disease. In this regard, cfr. Matti Mikkola, Social Human Rights of Europe, Porvoo, Bookwell Ltd., 2010, p. 203. Which yet led to a conclusion of non-​conformity of the French situation in 2017. ecsr, Conclusions 2017, France. More recently, Spain had the same fate, due to similar reasons, besides not monitoring occupational diseases effectively (ecsr, Conclusions xxii-​2, Spain), as well as Hungary (ecsr, Conclusions 2021, Hungary). ecsr, Conclusions 2009, Portugal. For instance, ecsr, Conclusions 2013, Moldova. Karin Lukas, cit., p. 69. Even so, the Committee compares figures provided by Member States with other international figures (John Darcy, David Harris, op. cit., p. 72), not only absolute numbers, but also averages among the State Parties (Klaus Lörcher, cit., p. 194). Pointing to similar reasons for the increase in Spanish numbers of work-​related accidents, cfr. Alberto Arufe Varela, Jesús Martínez Girón, cit., p. 288.

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In any case, we can indicate that, with regard to the Portuguese reports in 2013, the Committee acknowledged that there had been a decline in the number of work-​related accidents, but noted that the number of occupational diseases was low, requesting more information on the numbers of fatal occupational diseases. Still, the Committee observed that inspection activities had declined, despite an increasing number of complaints and all fatal contingencies being investigated. It also remarked that the number of inspectors hired had increased, but the number of workers covered by visits had decreased. As such, the Committee requested information on non-​fatal work accidents, on orders to suspend work and prohibit activities, on orders to impede the right to participate in public tenders, on criminal reports, on the value of the fines imposed, and on rulings in cases sent to the Public Prosecutor’s Office.72 After Portuguese authorities answered this request, the Committee still found the situation in Portugal in non-​conformity with the provision, as measures taken to reduce the number of accidents at work were deemed insufficient and the Committee concluded that the labour inspection system does not have sufficient human resources to adequately monitor compliance with occupational health and safety legislation.73 More recently, in 2018, the Committee found that enforcement of safety and health regulations in Luxembourg were not in conformity with the esc, as measures taken to reduce the number of fatal accidents at work were deemed insufficient.74 These requests from the Committee demonstrate that it is no longer satisfied with the numbers States provide and is progressing to more demanding requirements, as it may already have concluded that the number of accidents reported is not a proof of a State’s reality, nor does it attest what said State has been actively doing to lower that number. Even so, despite not being, in our view, completely rigorous, the Committee’s procedure allows the efficiency of regulation to be controlled, since it has been

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ecsr, Conclusions 2013, Portugal. The Committee concluded that the situation in Portugal was not in compliance with article 3(3) of the esc. This conclusion was reaffirmed in 2017, as the Committee understood measures taken to reduce the number of accidents at work were still insufficient and that the labour inspection system does not have sufficient human resources to adequately monitor compliance with occupational health and safety legislation. ecsr, Conclusions 2017, Portugal. ecsr, Conclusions 2017, Portugal. ecsr, Conclusions xxi-​2 (2017), Luxembourg, Article 3 § 2 of the 1961 Charter, currently Article 3 § 3. The same conclusion was reached by the ecsr concerning Malta (ecsr, Conclusions 2017, Malta) and Latvia (ecsr, Conclusions 2021, Latvia), for eg.

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concluded that, in Europe, the problem, as a rule, is not the absence of regulation75, but the effectiveness of its application.76 The provisions of Article 3 (2) and (3) are very close to each other, in such a way that the Committee used to consider that a breach of Article 3 (2), formerly (1), meant an automatic breach of Article 3 (3), formerly (2), an opinion that it would end up dismissing later.77 iv

Article 3 § 4

Paragraph 4 of Article 3 esc imposed the obligation to create occupational health services. The appendix to the Revised esc clarifies that “for the purposes of this provision the functions, organisation and conditions of operation of these services shall be determined by national laws or regulations, collective agreements or other means appropriate to national conditions”. These services shall have preventive and advisory functions, contributing to risk assessment, health supervision, training and impact assessment of working conditions on workers’ health.78 This leads us to conclude that, even though referred as “health services”, similarly to the expression used at the ilo Convention No. 161, of 1985, they shall be analogous to the “protective and preventive services” of Article 7 of Framework Directive 89/​391 and go beyond health to encompass safety at work. However, it should be noted that, although the signatory States do not deny the need to guarantee the existence of such services, financial constraints have prevented the effectiveness of this measure.79 In any case, it should be recalled 75

76 77 78 79

This is particularly relevant when the stakeholders, such as the majority (89,2%) of respondents to European Survey of Enterprises on New and Emerging Risks (esener 3 –​ 2019) from the European Agency for Safety and Health at Work still answer that the main reason to address health and safety at their establishments is to fulfil a legal obligation. Data available at https://​visual​isat​ion.osha.eur​opa.eu/​ese​ner/​en/​sur​vey/​det​ailp​age-​pie -​chart/​2019/​driv​ers-​and-​barri​ers/​en_​1/​E3Q26​2_​5/​EU27_​2​020, accessed 20-​03-​2022. Katarzyna Lasak, cit., pp. 121 e 122. John Darcy, David Harris, op. cit., p. 70. ecsr, Conclusions 2003, Bulgaria. Katarzyna Lasak, cit., p. 120. Luis Jimena Quesada recognises that this rule imposes pecuniary commitments, and that they underpin the system of “à la carte” ratification of this international convention –​“Introducción: sostenibilidad y efectividad de los derechos sociales, incluso y sobre todo en tempos de crisis”, in Carlos L. Alfonso Mellado; Luis Jimena Quesada; Carmén Salcedo Beltrán, La jurisprudencia del Comité Europeo de Derechos Sociales frente a la crisis económica, Albacete, Editorial Bomarzo, 2014, p. 32, footnote 45.

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that, in deciding the complaint under Case No. 13/​2002,80 the Committee has already clarified that, when the implementation of the provisions of the Charter entails high financial implications, the State must take measures to achieve the objectives within a reasonable time, with measurable progress, and to an extent consistent with the maximum use of the resources available.81 This seems to result in an obligation of means, requiring the State to use the available resources in good faith to achieve a given end, while proceeding at a reasonable pace. This idea had already been foreshadowed in case ecsr, International Commission of Jurists v. Portugal, complaint No. 1/​1998, decision on the merits of 9 September 1999, regarding child labour.82 Other scholars, however, consider it is an enhanced obligation of means, as it goes beyond the simple obligation of means, without reaching the constraint of the obligation of result,83 while others are of the opinion that it sets up an obligation of result.84 The Committee usually requests statistical information on the percentage of companies and establishments where there is access to external or common occupational health services, the actual content of occupational safety and health services provided by employers, the number of occupational doctors,85 the frequency of medical examinations in legislation and practice, the accreditation and supervision of external occupational safety and health services, and the rate of either in-​house or external undertakings which provide 80

ecsr, International Association Autism-​Europe (IAAE) v. France, complaint No. 13/​2002, decision on the merits of 4 November 2003. 81 Régis Brillat, “The supervisory machinery of the European Social Charter: recent developments and their impact”, in aavv. (coord. Gráinne De Búrca, Bruno De Witte, Larissa Ogertschnig), Social Rights in Europe, Oxford, Oxford Scholarship Online, 2005, p. 42. This conclusion would be developed in decisions of the ecsr, European Roma Rights Centre v. Bulgaria, complaint No. 31/​2005, decision on the merits of 18 October 2006, and ecsr, International Movement ATD Fourth World v. France, complaint No. 33/​2006, decision on the merits of 5 December 2007. 82 Gregor T. Chatton, “La armonización de las prácticas jurisprudenciales del Tribunal Europeo de Derechos Humanos y del Comité Europeo de Derechos Sociales: una evolución discreta”, Revista de Derecho Político, No. 73, 2008, p. 288. Other scholars criticise that the ecsr’s approach is “means-​oriented rather than result-​oriented” and assess that “looking for (positive or negative) ‘trends’ does not appear sufficient” –​cfr. Matti Mikkola, cit., p. 196 and Klaus Lörcher, cit., p. 182. 83 Carole Nivard, cit., pp. 321–​321. 84 Cfr. Jean-​ François Akandji-​ Kombe, “Carta Social Europea y Convenio Europeo de Derechos Humanos: perspectivas para la próxima década”, Revista de Derecho Político, No. 67, 2006, p. 392. 85 Emphasized by the Committee in ecsr, Conclusions 2009, Slovenia, but persisting more recently in ecsr, Conclusions 2021, Slovenia.

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access to medical care within undertakings.86 The Committee also demands a strategy for access to occupational safety and health conditions in small and medium-​sized enterprises and on consultation with workers’ and employers’ organizations.87 In 2013, Albania was found to be in non-​conformity with the Charter for the failure to establish a strategy to progressively institute access to occupational health services for all workers in all sectors of the economy, as the country was excluding some companies, depending on their size, and some employees, depending on the nature of their relationship.88 More recently, in 2017, the conclusion persisted, as the Government did not prove to have a strategy to develop occupational health services for all workers.89 Regarding the establishment of health services, the Committee made it clear that occupational health services can be provided jointly by several companies,90 but in 2015 concluded the absence of legislation in Ireland mandating access to such occupational health services and that small and medium-​sized companies rarely provide such services.91 A similar finding of non-​compliance was made in the Committee’s report on Ukraine, in 2015, concluding that occupational safety and health services were not available to all workers in all sectors of the economy, both public and private, a conclusion that was reaffirmed later on.92 Turkey was also found to be non-​compliant in 2015, as its report did not provide details on the actual existence of occupational health services, their organization, content, and coverage, despite their legal provision. In 2017, the Committee deferred its conclusion, asking for more information on the proportion of undertakings equipped with occupational health services and the number of workers monitored by such as compared to the previous reference period, on duties and responsibilities of a workplace physician and of the occupational safety expert, on how the functions performed by them are adapted in practice to all undertakings, especially in small and medium-​sized enterprises, 86 87 88 89 90 91 92

ecsr, Conclusions 2021, Russia. ecsr, Conclusions 2013, Portugal. ecsr, Conclusions 2013, Albania. ecsr, Conclusions 2017, Albania. ecsr, Conclusions 2003, Bulgaria. In the 2015 findings concerning Malta, the Committee clarified that services can be public, but accessed by both the public and private sectors, even if depending on the payment of a fee. ecsr, Conclusions 2015, Malta. ecsr, Conclusions 2015, Ireland. Thus, the Committee issued a statement of non-​ compliance with article 3 § 4 of the esc because it considered that there is not even a strategy in Ireland to develop these services for the benefit of all workers. ecsr, Conclusions 2015, Ukraine and ecsr, Conclusions 2017, Ukraine.

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and on how access to occupational health services takes place in practice for temporary workers or workers on fixed-​term contracts, self-​employed workers and domestic workers, but the conclusion on non-​conformity with the provision prevailed in the 2021 Conclusions.93 In the case of the Netherlands, although concluding for the compliance with the provision, the Committee requested information on the certification of occupational safety and health companies and the elimination of certain companies.94 We may conclude that even though the Committee is sensitive to the clear difficulties that most countries encounter to ensure the execution of this provision, it still requires a minimum of predictability in what concerns a plan to implement these services for all companies, regardless of their size and activities performed.

Concluding Remarks

As some scholars stress, signatory States’ conducts are appreciated in general terms, as happens when the Committee condemns a high number of work-​ related accidents or a low number of inspections, with some exceptions to individualisation that may be appreciated when the physical integrity of the person is affected, for instance in a particular work-​related accident.95 At the same time, the ecsr proves to be aligned with the EU and the cj when it demands a wide approach of the obligations enshrined in Article 3, adaptable to new circumstances and to the advance of technological aspects, increased mechanisation96 and evolution of working methods and organisation. EU

93 94 95

96

ecsr, Conclusions 2015, Turkey, ecsr, Conclusions 2017, Turkey and ecsr, Conclusions 2021, Turkey. ecsr, Conclusions 2015, Netherlands. Carole Nivard, cit., p. 428. In a similar way, Jean-​François Akandji-​Kombe states that the collective complaints’ system achieves the purpose of addressing potential gaps of the report’s mechanism, as the former appreciates in a more precise way a particular economic sector or particular situations addressed in a more general way by the ecsr’s conclusions. Jean-​François Akandji-​Kombe, “La Charte Sociale Européenne et la promotion des droits sociaux”, in aavv, Les droits sociaux fondamentaux. Entre droits nationaux et droit européen, dir. Laurence Gay, Emmanuelle Mazuyer, Dominique Nazet-​Allouche, Brussels, Bruylant, 2006, p. 195. Donna Gomien, David Harris, Leo Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter, Strasbourg, Council of Europe Publishing, 1996, p. 386.

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standards are actually a measure to ascertain conformity to the esc, even though the ecsr sometimes goes further and is more demanding. Although this Article has addressed the issue of occupational health and safety in a very unique and significant way, the truth is that it is not a “hard-​ core” or essential right for the purposes of Article A (1) b).97 In fact, some State Parties have either not accepted the Article yet,98 or have not accepted all its provisions.

97 98

Which is criticised by Ana Belén Muñoz Ruiz, cit., p. 72. Klaus Lörcher points his surprise in what concerns Croatia, at least since the country joined the EU. Other States are Azerbeijan, Bosnia and Herzegovina and Georgia –​Klaus Lörcher, cit., p. 182.

article 4

Right to a Fair Remuneration Michel Miné



With a view to ensuring the effective exercise of the right to a fair remuneration, the Parties undertake: 1 to recognise the right of workers to a remuneration such as will give them and their families a decent standard of living; 2 to recognise the right of workers to an increased rate of remuneration for overtime work, subject to exceptions in particular cases; 3 to recognise the right of men and women workers to equal pay for work of equal value; 4 to recognise the right of all workers to a reasonable period of notice for termination of employment; 5 to permit deductions from wages only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreements or arbitration awards. The exercise of these rights shall be achieved by freely concluded collective agreements, by statutory wage-​fixing machinery, or by other means appropriate to national conditions.

Article 4 esc (rev) echoes comparable provisions in other international sources, notably the International Labour Organisation1 and some of the European Union law.2 Within the European Social Charter’s system, Article 4 is linked to other provisions of the Charter, i.e. Articles 2 (Right to just conditions of work), 20 (Right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex) and 30 (Right to protection against poverty and social exclusion) of the

1 Protection of Wages Convention, 1949 (No. 95); Minimum Wage Fixing (Agriculture) Convention, 1951 (No. 99); Equal Remuneration Convention, 1951 (No. 100); Minimum Wage Fixing Convention, 1970 (No. 131); Discrimination (Employment and Occupation) Convention, 1958 (No. 111); infra. 2 The EU Charter of Fundamental Rights, the Treaty (in particular the tfeu), directives, in particular Directive No. 2006/​54 of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), and the case law of the cjeu, infra.

© Koninklijke Brill NV,

142 Miné Revised Charter. More than a simple workers’ right, the right to a fair remuneration aims at a more global societal ideal of social justice. This has been confirmed by the ecsr in its decisions following the complaints, symbolically lodged by University Women of Europe (uwe) in 2016 against the 15 States that had accepted the collective complaints system. It considered that “The right of workers to a fair remuneration is at the heart of the Charter’s guarantee of conditions of work that are reasonable and ensure a fair reward for labour performed. Inadequate pay creates poverty traps, which may affect not just individuals and their families, but whole communities. Inadequate pay is also an obstacle to full participation in society and thus a marker for social exclusion. More broadly, pay which lags significantly behind average earnings in the labour market are incompatible with social justice”.3 i

Article 4 § 1: Right to a Fair Remuneration

Scope of Application A 1 Persons Article 4 § 1 applies to:

–​ all workers, in particular employees4 –​ workers in sectors and jobs not covered by a collective agreement.5 –​ civil servants and contractual agents in the national, regional and local civil service6 –​ workers in atypical jobs (subsidised jobs)7 and under special schemes or statutes (minimum wage for migrant workers).8

2 Remuneration For the purposes of the assessment under Article 4(1), pay is defined as the net amount, less social security contributions and taxes, of all remuneration, both 3 ecsr, University Women of Europe (UWE) v. Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Greece, Ireland, Italy, the Netherlands, Norway, Portugal, Slovenia and Sweden, complaints Nos. 124-​138/​2016, decisions on the merits of 5/​6 December 2019. 4 ecsr, Conclusions xx-​3 (2014), Greece (« the minimum wage for single workers in the private sector is below the minimum threshold »). 5 ecsr, Conclusions 2014, France. 6 ecsr, Conclusions xx-​3 (2014), Greece, « (…) the minimum wage for contractual civil servants is below the minimum threshold and therefore does not provide a decent standard of living. » 7 ecsr, Conclusions 2014, France. 8 ecsr, Conclusions 2014, Andorra.

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in cash and in kind, regularly paid by the employer to an employee for work done. Where appropriate, bonuses and premiums that are not paid regularly are taken into account.9 Social transfers or benefits not directly linked to pay shall not be taken into account, as Article 4(1) concerns remuneration for work as such.10 Thus, “remuneration” refers to the consideration –​in cash or in kind –​that an employer pays to a worker for the number of hours or work performed. It includes, where appropriate, bonuses and special gratuities.11 In contrast, social transfers, e.g. social security allowances or benefits, are only taken into account if they are directly related to wages. (See Section/​Chapter iii A.1. below for the definition of pay used for the application of Article 4 § 3 and Section B.2.c. for the new approach). Governments are asked to provide information on any social transfers or benefits available to full-​time employees, regardless of their family situation, who are on the minimum wage (not average wage earners). This information may be useful in assessing the situation. The Committee stresses that by looking at net wages, it takes into account the redistributive effects of contributions and taxes. B Decent Living Standards 1 General Concept The concept of a decent standard of living “goes beyond merely material basic necessities such as food, clothing and housing, and includes resources necessary to participate in cultural, educational and social activities. It follows that guaranteeing a decent standard of living means ensuring a minimum wage (and supplemented by any additional benefits where applicable) the level of which should be sufficient to meet these needs”12 In its first conclusions, the Committee interpreted the obligation of the Contracting States “requires those States to make a continuous effort to achieve the objectives set by this provision of the Charter”. The Committee considered that “(…) account must be taken of the fact that the socio-​economic status of the worker and his family changes and that his basic needs, which at first are centred on the provision of purely material basic necessities such as food and 9 10 11 12

ecsr, Conclusions xvi-​2 (2004), Danemark. ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 4 § 1, which serves as the main reference for the new approach (v. infra, B. 2.c.). ecsr, Conseil Européen des Syndicats de Police (cesp) c. Portugal, complaint n° 37/​ 2006, decision on the merits of 6 December 2007, § 21. ecsr, Conclusions xix-​3 (2010), Statement of Interpretation on Article 4 § 1.

144 Miné housing, subsequently move towards concerns of a more advanced and complex nature, such as educational facilities and cultural and social benefits”.13 Thus, the concept of ‘decent life’ is defined in an evolving way. 2 Evaluation Method a Difficulties of Assessment At the origin of the Charter monitoring system, it proved difficult to assess the application of Article 4 § 1. Several factors have contributed to these difficulties, including wage formation mechanisms that differ widely from one country to another, given differences in labour market, socio-​economic and institutional conditions and the lack of usable data to determine the necessary wage levels.14 Previous Approaches b Initially, the Committee adopted an assessment method based on statistical studies by the oecd and the Council of Europe. From these studies, it established a “decency threshold”. The basic rule of this method was that wages that are clearly lower than wages in society at large are not decent or fair. Thus, for a wage to be decent, it had to be at least 68% of the national average wage. Where the lowest wage did not reach this level, the Committee took into account a number of balancing factors, such as taxes, substantial social benefits, including family and housing benefits.15 Secondly, with a few exceptions, the Committee no longer drew conclusions under this article because, on the one hand, the validity of the method applied was increasingly questioned as a result of social and economic developments since the entry into force of the Charter and, on the other hand, in many cases the data provided by the governments did not enable it to assess the situation properly.16 c New Approach The Committee has revised its evaluation method in order to assess the situation of the Contracting States.

13 14 15 16

ecsr, Conclusions i (1969), Statement of Interpretation on Article 4 § 1. ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 4 § 1. ecsr, Conclusions v (1977), Statement of Interpretation on Article 4 § 1. This paradigm shift occurred after the new ratifications of the Charter by the Eastern European States (the former communist States), leading in particular to less economic homogeneity (ecsr, Conclusions xiv-​2 (1999), Statement of Interpretation on Article 4§1).

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The Committee always starts from the basic idea that, in order for the situation to be in conformity with the Charter, i.e. for a wage to be fair, the lowest wage cannot be too much lower than the national average wage. The Committee refers to the 1989 Community Charter of Fundamental Social Rights of Workers (eec/​e u) which also states the principle of fair remuneration but describes it as “a wage sufficient to enable them (i.e. the workers) to enjoy a decent standard of living”. The Charter of Fundamental Rights of the European Union makes no provision in this area and the Treaty on the Functioning of the EU excludes the Union’s competence in the area of pay.17 However, there are exceptions18 and there is an ongoing debate about setting a minimum wage at European level.19 The Committee considered it useful to set the threshold percentage (lowest net pay as a percentage of average net pay), below which the lowest pay should not fall, at 60%. Thus, for the Committee, a wage of at least 60% of the average net wage ensures a decent standard of living for the employee concerned (for the employee, not for the family).20 The reference wage taken into consideration by the Committee is the national average net wage of a full-​time employee, calculated, as far as possible,

17 18

19

20

Article 153 § 5 tfeu. The absence of Union competence in relation to remuneration is interpreted strictly and is not extended to all matters relating to remuneration; it should be avoided that certain areas of Union competence are rendered largely meaningless (cjeu, 13 September 2007, Yolanda Del Cerro Alonso, C-​307/​05, §§ 37–​48). Thus, the Luxembourg court has jurisdiction over questions of pay relating to equal treatment or discrimination. In addition, there is a text on the insolvency of the employer (Directive No. 2008/​94 of 22 Oct. 2008). The setting of a minimum wage by the Union, which varies from one Member State to another, is on the agenda of the European Union bodies: Commission, Proposal for a Directive on adequate minimum wages in the European Union com/​2020/​682 28.10.2020, final Staff working document impact assessment Accompanying the document Proposal for a Directive of the European Parliament and of the Council on adequate minimum wages in the European Union swd/​2020/​245 final, 28.10.2020; European Parliament draft legislative resolution on the proposal for a directive of the European Parliament and of the Council on adequate minimum wages in the European Union (com(2020)0682 –​C9-​ 0337/​2020 –​ 2020/​0310(cod) 18.11.2021; cf.. cjeu, 14 May 2019, Federación de Servicios de Comisiones Obreras v Deutsche Bank, C-​55/​18; cjeu, gc, 15 April 2008, Impact, C-​268/​06, § 124–​125; cjeu, 6 May 2014, Commission v Parliament and Council, C-​43/​12. ecsr, Conclusions xvi-​2 (2004), Danemark; ecsr, Conclusions 2014, Andorra: « the smi net of social security contributions for workers over 18 years of age was 47.52% of average net earnings in 2012, which is below the minimum threshold of 50% of average net earnings and does not constitute decent pay within the meaning of Article 4(1) of the Charter».

146 Miné in all sectors of the economy or in a representative sector, such as industry or in several sectors.21 If the lowest wage in a state does not reach the 60% threshold but is close to it (between 50% and 60%),22 the Committee requests the government concerned to provide precise evidence that the lowest wage is sufficient to provide workers with a decent standard of living even if it is less than 60% of the national net average wage. This will include the costs of health care, education, transport, etc. In this situation (50%-​60% wage), compensatory measures (bonuses, social transfers, allowances, etc.) are very useful in order to bridge the gap up to the 60% threshold (this is the case for example in France).23 However, regardless of this percentage, a wage that does not provide the worker with a decent standard of living in real terms, i.e. a wage that is not significantly above the poverty line in a given country, does not comply with the requirements of the Charter (infra Section i.c. Decisions concerning Greece).24 Thus, in extreme cases, for example if the lowest wage is less than half the average wage, the Committee considers that the situation is not in conformity with the Charter. The Committee considers the net statutory minimum wage in countries where such a wage exists, as the lowest wage.25 Its net amount for a full-​time employee is used as a basis for comparison with the average net wage. For countries where no such wage exists, the Committee takes into account information on the net minimum wage set in collective agreements26 and/​or the actual wage in the labour market.27 The Committee seeks to determine the practical relevance of this minimum in relation to the number of workers who receive it.28 21 22 23

24 25

26 27 28

ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 4 § 1. In the European Union, the minimum wage reaches or exceeds 60% of the median wage (poverty line) in only six countries, Liaisons sociales Europe, n° 489 –​23 January 2020, p. 2. ecsr, Conclusions 2007 (although the annual minimum wage for a single worker without dependents in 2005 was 57% of the average net wage, the fact that these workers also received a refund of the employment bonus and monthly housing benefit had the effect of increasing the amount to 66% of the average wage, a situation in line with the Charter). ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 4 § 1. Twenty-​two EU Member States have a statutory minimum wage at national level and six others (Austria, Cyprus, Denmark, Finland, Italy, Sweden) have wages determined by collective bargaining (including, in some cases, minimum wages), Liaisons sociales Europe, n° 489 –​23 January 2020, p. 2. ecsr, Conclusions xvi-​2 (2003), Denmark, « (…) the lowest wage in a collective agreement is for supermarket cashiers (…). » ecsr, Conclusions xvi-​2 (2003), Denmark. The share of workers earning between 80% and 105% of the minimum wage in the EU is now estimated to be between 5% (e.g. Belgium and Malta) and 20% (Portugal and

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Thus, in several Contracting States, “the minimum wage, provided for by legislation (Greece, Spain, United Kingdom) or by collective agreements (Austria), is significantly lower than the threshold set by the Committee and cannot therefore be considered fair within the meaning of Article 4 § 1. The ecsr recalls that, according to its case law, this statutory minimum wage must represent at least 60% of the national average wage. Moreover, it is not demonstrated by the national reports of these States that the wages actually paid to the workers concerned allow them to have a decent standard of living”.29 In several Contracting Parties, a minimum income guarantee is provided for people whose income is below the poverty line. This minimum income is subject to specific conditions, which vary from country to country, to be fulfilled by those concerned, whether or not they are employed. In general, the minimum income guarantee is much lower than the lowest wages paid to full-​time workers, both in countries where there is a statutory minimum and in countries where the minimum wage is negotiated. The Committee stresses that, as the guaranteed minimum income is not linked to the wage received by a full-​time worker and does not increase the level of the minimum wage, it is not taken into account when assessing the situation under Article 4 § 1. Regarding the available data, provided by the States in the reports, the Committee insists that, in order to be able to assess the situation correctly, each report must report on the lowest wages actually practised on the market, whether they are fixed by collective agreement or otherwise, as well as the national average wage. All wages should be expressed net of tax and social security contributions. And in the event that such information is difficult to obtain, the Committee invites the Government to arrange for the necessary investigations to be carried out in order to establish the appropriate estimates.30 C Decisions One of the Committee’s most significant Decisions on Article 4 § 1 concerns the situation of young workers under 25, particularly in Greece.31

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Romania). As a percentage of median gross earnings, rates range from around 40% in Spain and the Czech Republic to almost 80% in Denmark and Italy, Liaisons sociales Europe, n° 489 –​23 January 2020, p. 2. S. Verrier, Conclusions xvi-​2, Article 4 –​en ligne http://​leu​rope​desl​iber​tes.u-​stra​sbg.fr /​arti​cle.php?id_​arti​cle=​113&id_​r​ubri​que=​5. ecsr, Conclusions xvi-​2 (2004), Denmark. M. Yannakourou and C. Tsimpoukis, « Flexibility without security and deconstruction of collective bargaining: the new paradigm of labour law in Greece », Labor Law & Pol’Y Journal, 2014. C. Papadimitriou, “Le droit du travail grec face à la crise: un passage

148 Miné The Committee considers that paying a lower minimum wage to young workers under the age of 25 is not contrary to the Charter if it pursues a legitimate aim (relevance) and achieves it in a proportionate manner (proportionality). Thus, it is possible to pay a lower minimum wage to young people in certain circumstances (e.g. when they are doing an apprenticeship or vocational training course) and to promote access to the labour market for young workers. However, for the Committee: the setting of a minimum wage below the poverty line for young workers constitutes a violation of Article 4 § 1 of the Charter.32 Admittedly, the reduction of wages, and in particular the minimum wage, is not in itself contrary to Article 4 § 1 of the Charter. However, the reduction below a certain level constitutes a violation of this essential provision of the Charter:33 « such reduction in the minimum wage should not fall below the poverty level of the country concerned ».34 Moreover, this difference in treatment on the basis of age constitutes discrimination, considering the extent of the reduction in the minimum wage and its application to all workers under the age of 25, by its disproportionate nature.35 This situation is an emblematic illustration of the contradictions between international human rights law and European Union law. Indeed, the reduction of the minimum wage had been imposed by the EU Council of Finance Ministers (“Eurogroup”) on the Greek governments. Thus, a decision of the European Union requires a State to no longer respect its international commitments36 (the Committee considers that neither the position of social rights in the European Union’s legal order nor the procedures

32 33

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dangereux vers une nouvelle physionomie juridique”, Revue de droit comparé du travail et de la sécurité sociale, 2012/​2, p. 6 et 2013/​1, p. 116. ecsr, General Federation of Employees of the National Electric Power Corporation (genop-​ dei) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v. Greece, complaint No. 66/​2011, decision on the merits of 23 May 2012, § 60. J.-​P. Marguénaud et J. Mouly, “Le Comité européen des droits sociaux face au principe de non-​régression en temps de crise économique”, Droit social, avril 2013, p. 339. C. Deliyanni-​ Dimitrakou, “La Charte sociale européenne et les mesures d’austérité grecques: à propos des décisions n° 65 et 66/​2012 du Comité européen des droits sociaux fondamentaux”, Revue de Droit du Travail 2013, p. 457. ecsr, General Federation of Employees of the National Electric Power Corporation (genop-​ dei) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v. Greece, op. cit., § 60. Ibid., §§ 68–​70. M. Miné, « Le droit du travail en Grèce à l’épreuve du droit international et du droit européen », Revue des droits et libertés fondamentaux, 2015, chron. n° 21, http://​www.revue​ dlf.com/​droit-​soc​ial/​le-​droit-​du-​trav​ail-​en-​grece-​a-​lepre​uve-​du-​droit-​intern​atio​nal-​et -​europ​een/​; « Interventions d’instances non juridictionnelles internationales –​Brefs propos concernant la situation de la République hellénique », Revue de droit comparé du travail et de la Sécurité sociale, 2014/​1 (June 2014), p. 28; Επίκαιρες εξελίξεις στο ευρωπαϊκό

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for drafting secondary legislation on them give rise to a presumption of conformity of European Union law with the European Social Charter).37 In addition to the violation of the Charter, this includes the failure to respect ilo law, on which the international experts have taken a position:



–​ In its 2013 report on the application of ilo Convention No. 95 on wage protection, the ilo Committee of Experts on the Application of Conventions and Recommendations (ceacr) expresses “serious concern about the cumulative effect” that measures (minimum wage cuts, budget cuts, etc.) “have on workers' incomes and living standards as well as on compliance with labour standards relating to wage protection”;38 “the committee wants to remind the responsibility of the government to strengthen –​not weaken –​labour standards related to wage protection, especially in times of crisis, when the need for social justice and income security is at its highest level”.39 –​ In its 2015 report, the Committee notes the continued application of reduced rates for the minimum wage: “the Committee asks the government to examine the possibility of adopting new measures to avoid any further negative impact on workers' rights relating to wage protection”.40

The Committee invokes Article 4(1) to conclude that the austerity measures implemented by the agreements concluded by certain countries with the Troika are in violation of the provisions of the Charter.41 Thus, the Committee did not accept that the economic crisis should be used to justify excessive precariousness in the protection of the rights recognised by the Charter.42

37 38 39 40 41 42

δίκαιο για τον χρόνο εργασίας, Revue de droit du travail EργατικουΔικαιου(Athènes), 15 May 2011. ecsr, Confédération Générale du Travail (CGT) v. France, complaint No. 55/​2009, decision on the merits of 23 June 2010, §§ 34–​35. Rapport 2013, Greece, p. 748 (International Labour Conference, 102ème session, June 2013). Rapport 2013, Greece, p. 750. Rapport 2015, Greece, p. 461–​462 (International Labour Conference, 104ème session, June 2015). ecsr, Conclusions 2014, Ireland. ecsr, General Federation of employees of the national electric power corporation (genop-​ dei) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v. Greece, complaint No. 65/​2011, decision on the merits of 23 May 2012, §§ 16,17. This position contrasts with the one adopted by the echr (decisions ECtHR, 7 May 2013 [dec], Koufaki v. Greece and ADEDY v. Greece, Nos. 57665/​12 and 57657/​12; ECtHR, 8 Octuber 2013[dec], De Conceiçao Mateus v. Portugal, Nos 57725/​12 and 62235/​12).

150 Miné ii

Article 4 § 2: The Right of Workers to an Increased Rate of Remuneration for Overtime Work

Definitions, Function and Implementation A 1 Definitions Overtime is time worked in excess of normal working hours (beyond normal working hours).43 This surcharge must be applied in all cases44 (with rare exceptions, infra Section/​Chapter ii.B.). Normal working hours correspond to the daily and weekly working hours as laid down in national legislation and collective agreements (these hours must comply with the provisions of Article 2(1) of the Charter which guarantees reasonable working hours).45 Overtime is time worked in addition to these normal working hours.46 This overtime corresponds to work effectively carried out.47 The exact definition of what is meant by overtime differs slightly from country to country.48 Thus, this provision of the Charter (Article 4 § 2) is linked to the provision of Article 2 § 1 which guarantees the right to reasonable daily and weekly working hours. For the Committee, overtime “should therefore also be regulated in the sense that it should not be left to the discretion of the employer or the worker; the utilisation and/​or the length of overtime should be limited in order to avoid exposing the worker to the risks of accidents at the end of a working day”.49 2 Function According to this provision, “overtime work performed in addition to normal working hours requires an increased effort on the part of the worker”.50 Therefore, it is necessary, of course, that the worker be paid for this overtime,

43 44

ecsr, Conclusions i (1969), Statement of Interpretation on Article 4 § 2. ecsr, European Council of Police Trade Unions (CESP) v. France, complaint No. 68/​2011, decision on the merits of 5 November 2012, §§ 76, 77, 86 à 88. ecsr, Conclusions ix-​2 (1986), Ireland. 45 Conclusions i (1969), Statement of Interpretation on Article 2 § 1. 46 ecsr, Conclusions i (1969), Statement of Interpretation on Article 4§2, p.29. 47 ecsr, European Council of Police Trade Unions (CESP) v. Portugal, complaint No. 37/​2006, decision on the merits of 3 December 2007, § 31. 48 ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 4 § 2. 49 ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 2 § 1. 50 ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 4 § 2.

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but it is also necessary that this overtime is paid at a higher rate than the normal rate of pay for regular hours.51 3 Implementation a Implementation Standard The provision of Article 4 § 2 may be implemented through collective agreements, statutory regulations or other means appropriate to national conditions, provided that it applies to all employees.52 b How to Implement the Increased Rate of Pay In the case of flat-​rate financial compensation, the Committee verifies, firstly, whether there is remuneration for overtime and, above all, secondly, whether the resulting overtime pay is actually higher than the worker’s normal rate of pay (thus, neither the amount of the flat-​rate allowance nor its effects on the purchasing power of the workers concerned are assessed by the Committee).53 In cases where overtime pay is fully compensated by a rest period (in lieu of additional pay), Article 4 § 2 requires that the “compensatory” rest period granted be longer than the overtime hours worked54 (this rest must be longer than the duration of the overtime worked). And, with this provision, mixed systems are possible;55 it is thus possible to provide for: remuneration of overtime at the normal rate, supplementing this remuneration by compensatory

51 52

53

54

55

ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 4§2, préc., spéc. p.36–​37; cf. before ecsr, Conclusions i, Statement of Interpretation on Article 4 § 2, p. 29. ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 2 § 1 and on Article 4 § 2. ecsr, Conclusions xvi-​2 (2004), UK, « the Committee found the situation not to be in conformity with the Charter on the grounds that the rates of pay for overtime were set by negotiation between employers and their staff ». ecsr, Conseil européen des Syndicats de Police (CESP) c. France, Complaint n° 57/​2009, decision on the merits of 1 December 2010, § 35; The Committee unanimously concludes that « there has been a violation of Article 4§2 of the Revised Charter on the grounds that the provisions applying to members of the “management and enforcement corps” of the national police (…) make the financial compensation for overtime granted to them a lump sum, which prevents the persons concerned from benefiting from the real increase required in relation to the normal rate of their pay. » ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 4 § 2, Conclusions xiv-​2, Belgium, p. 147, et Poland (« workers covered by the Labour Code may receive hourly compensation for overtime worked, which is simply equivalent to the overtime hours worked and therefore does not correspond to an increased rate of pay »). ecsr, Conseil Européen des Syndicats de Police (CESP) c. Portugal, Complaint n° 60/​2010, decision on the merits of 17 October 2011, § 21; ecsr, Conclusions xx-​3 (2014), Slovenia.

152 Miné leave (corresponding to the applicable rate of increase)56 or the capitalisation of overtime in a “time-​saving account”. Compensation for overtime may take the form of additional leave, particularly for domestic staff.57 In response to collective complaints, the Committee has decided that some Contracting States are not in conformity with the Charter concerning overtime pay at a higher rate. For example, the Committee decided that the situation in Spain does not comply with Article 4 § 2 of the Charter on the ground that the right of workers to increased remuneration for overtime is not guaranteed by law. Indeed, national law provides that “compensation for overtime work shall not be less than that for ordinary work. It states that equal compensation is the rule and that increased rates of remuneration might eventually be adopted through collective or individual agreements”.58 Some Contracting States, having accepted this provision (Article 4 § 2), have adopted “flexible working time schemes” in which working time is averaged over given reference periods (usually several months); during these periods, weekly working time may fluctuate between a minimum and maximum threshold. Under such schemes, hours worked above the average in some weeks are in practice compensated by a reduction in hours worked in other weeks during the reference period (in some cases, there is still overtime paid at a premium rate for hours worked above the maximum daily or weekly hours provided by the flexibility scheme). The Committee considered that such arrangements were not, as such, contrary to Article 4 § 2. However, the Committee reserves the right to assess in each individual case whether the flexibility arrangements ensure effective compliance with Article 4 § 2.59 And the Committee shall verify that the conditions listed in Article 2 § 1 are met.60 B Exceptions This right of workers to a higher rate of pay for overtime work may be subject to exceptions in certain specific cases.61 56 57

58 59 60 61

ecsr, Conseil Européen des Syndicats de Police (CESP) c. France, Complaint n°57/​2009, decision on the merit of 1 december 2010. ecsr, Conclusions i (1969), Statement of Interpretation on Article 4 § 2, préc. ilo Convention on Domestic Workers n° 189, 2011 (ilo) spec. Article 10: “1. each Member shall take measures to ensure equality of treatment between domestic workers and all workers in respect of normal hours of work, compensation for overtime, daily and weekly rest periods and paid annual holidays, in accordance with national laws or regulations or collective agreements, taking into account the particular characteristics of domestic work.” ecsr, Conclusions xvi-​2 (2003), Spain. ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 4 § 2. ecsr, Conclusions xx-​3 (2014), Portugal. ecsr, Conclusions x-​2 (1990), Ireland.

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1 Categories of Workers a Top Civil Servants in the Public Service In the civil service, the only exception allowed is the category of senior officials. This exception concerns in particular police officers in the design and management corps62 or administrative judges.63 Therefore, derogations from a higher rate of pay for overtime for an entire category of civil servants, such as police officers irrespective of their rank and responsibilities64 or all civil servants regardless of their level of responsibility65 are not in conformity with the provisions of Article 4§2. b Senior Managers in the Private Sector Exceptions are allowed for senior managers or executives.66 Therefore, for other professional and managerial staff, who are not senior managers or executives, limits must be set on the amount of unpaid time at a premium rate.67

62 63

64 65

66

67

ecsr, European Council of Police Trade Unions (CESP), v. France, complaint No. 57/​2009, decision on the merits of 1 December 2010, §§ 42–​44. ecsr, Union Syndicale des Magistrats Administratifs (USMA) v. France, complaint No. 84/​ 2012, decision on admissibility and the merits of 2 April 2014, §§ 67 et 69, « the number of administrative court judges and the nature of their duties include them among the particular cases referred to in article 4§2 ». ecsr, Conseil Européen des Syndicats de Police (CESP) c. France, complaint No. 38/​2006, decision on the merits of 3 december 2007, §22. ecsr, Conclusions xv-​2 (2001), Poland (« the rules which applied during the reference period governing overtime work by civil servants were not in conformity with this provision of the Charter, since they did not provide for a higher rate of pay or a corresponding period of rest. The situation is the same in the new legislation »). EU law provides for derogations from maximum working hours and minimum rest periods (Directive 2003/​88 of 4 November 2003 concerning certain aspects of the organisation of working time, Article 17 a “senior managers” or “other persons with autonomous decision-​making powers”). ecsr, Confédération Générale du Travail (CGT) c. France, Complaint n° 55/​2009, decision on the merits of 23 June 2010, §§ 73–​75, « the hours worked by managers subject to the fixed day system, which are not subject to any increase in remuneration in the context of flexible working hours, are abnormally high“ and ”a reference period of one year is excessive. ». M. Miné, « Le droit du temps de travail à la lumière de la Charte sociale européenne », Sem. Soc. Lamy, 17 janv. 2011. ecsr, Confédération française de l’Encadrement CFE-​CGC c. France, complaint n° 9/​2000, decision on the merits of 16 November 2001, § 45.

154 Miné 2 Implementation Derogations from overtime pay may only be implemented if they are provided for by law, pursue a legitimate aim and are proportionate to that aim.68 iii

Right of Women and Men Workers to Equal Pay for Work of Equal Value

Article 4(3) guarantees the right to equal pay without discrimination on grounds of sex.69 This is an essential dimension of the right to professional equality between women and men guaranteed by Article 20 of the Charter. This right to equal pay was first laid down in the Treaty of Versailles establishing the International Labour Organisation. The Treaty states among the principles of “special and urgent importance”: “The principle that men and women should receive equal remuneration for work of equal value”.70 With this groundbreaking text, international law affirmed for the first time equal pay for women and men. This right was later clarified by ilo Convention No. 100.71 This right to equal pay for women and men for work of equal value is provided for in several international instruments, including the International Covenant on Economic, Social and Cultural Rights (icescr, 1966)72 and the International Convention on the Elimination of All Forms of Discrimination against Women (1979).73 This right is also provided for by European Union law: by primary law, at the level of the Treaties74 and the Charter of Fundamental Rights,75 and by secondary law, at the level of legislation;76 this right

68 69 70 71 72 73 74 75 76

ecsr, Confédération Générale du Travail (CGT) c. France, complaint No. 55/​2009, op. cit., spec. §§ 87–​89. M. Miné, « Le droit du temps de travail à la lumière de la Charte sociale européenne », Sem. Soc. Lamy, 17 janv. 2011, prec. ecsr, Conclusions xiii-​5 (1997), Statement of Interpretation on Article 1st of the Additional Protocol; ecsr, Conclusions xx-​3 (2014), Georgia. Treaty of Versailles, Part xiii Labour, Section ii General Principles, Article 427. ilo Convention No. 100 on Equal Remuneration for Men and Women of 1951 (Entry into force: 23 May 1953). Article 7, a, i. Article 1 d. See in particular in the “Lisbon Treaty”: Article 157 of the Treaty on the Functioning of the European Union (tfeu). Article 23 of the cfreu. Directive No. 2006/​54 of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and

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is mobilised in the context of the case law of the Court of Justice in Luxembourg.77 Definitions A The content and scope of this provision needs to be clarified with regard to several concepts. 1 Remuneration Remuneration is defined in international law78 and in EU law79 as “all elements of pay, that is basic pay and all other benefits paid directly or indirectly in cash or kind by the employer to the worker by reason of the latter’s employment”.80 Thus, remuneration is not limited to salary. Remuneration includes, in addition to wages, all the accessories to wages: bonuses, allowances and benefits in kind. Remuneration is the counterpart of employment, over and above the sole counterpart of work. Furthermore, equal pay must be respected for full-​time and part-​time workers. Indeed, the Committee considers that “the principle that there should be no discrimination between the sexes implies that the rule of equal pay for full-​ time and part-​time workers should be observed, since most of the latter are women and this can gives rise to indirect discrimination”.81

occupation (recast), spec. recitals 4, 8, 9, 10 and 11, and Article 4. (see already: Council Directive No. 75/​117/​e ec of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for male and female workers). 77 Since cjeu 8 April 1976, Gabrielle Defrenne ii, C-​43/​75 (“the principle of equal pay for male and female workers is one of the foundations of the Community”) and cjeu 15 June 1978, Gabrielle Defrenne iii, C-​149/​77 (“respect for fundamental human rights is one of the general principles of Community law, the observance of which it is the task of the Commission to ensure; the elimination of discrimination based on sex is one of those fundamental rights”). It is a “fundamental human right”, cjeu, 10 February 2000, Deutsche Telekom & Deutsche Post, C-​270/​97 and C-​271/​97, spec. §57. See in particular. cjeu 26 June 2001, Susan Brunnhofer, C-​381/​99. See most recently: cjeu 3 June 2021, K and others v Tesco Stores Ltd, C-​624/​19. 78 Article 1 of ilo Convention No. 100 on Equal Remuneration for Men and Women of 1951, supra. 79 Article 157 tfeu. 80 Explanatory report to Article 1 of the Additional Protocol. ecsr, University Women of Europe (UWE) v. Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Greece, Ireland, Italy, the Netherlands, Norway, Portugal, Slovenia and Sweden, complaints Nos. 124–​138/​2016, decisions on the merits of 5/​6 December 2019. 81 ecsr, Conclusions xvi-​2 (2003), Portugal.

156 Miné The Committee adopts here the concept and method of indirect discrimination implemented by the Court of Justice of Luxembourg for a long time, in particular in cases of indirect discrimination against women with regard to part-​time work in terms of pay.82 2 Work of Equal Value Equal pay for women and men concerns the same work. However, the rule goes far beyond this: equal pay for women and men must also apply to « work of equal value », for work that is different but to which the same value is attributed. This is important because work is still largely gendered: women and men are only partly in the same jobs (women only have access to a limited number of occupational groups) and when they are in the same jobs they often do not perform the same tasks. To ensure equal pay for women and men, the notion of work of equal value is crucial. This notion of work of “equal value” is defined in EU law,83 in particular in the jurisprudence of the Court of Justice. Thus, according to European case law, equal pay for work of equal value can apply to different kinds of jobs.84 The equal value of work in different jobs must be assessed in a concrete way according to the nature of the work actually performed and the requirements of the job. The Luxembourg Court of Justice uses a method of global comparison based on a “bundle of indicators” to assess the value of the work with regard to various criteria, in particular the nature of the work (the requirements needed to perform the task, the skills and constraints), the training conditions and the working conditions.85

82 Since cjeu 31 March 1981, Paula Jenkins v. Kingsgate [Clothing Productions] Ltd, C-​96 /​80. cjeu 6 December 2007, Ursula Voß v. Land Berlin, C-​300/​06. 83 Directive n° 2006/​54, op.cit., spec. recital 9. 84 For example, jobs for speech therapists have been compared to jobs for pharmacists and physiotherapists in the UK National Health Service (nhs), cjeu 27 October 1993, C-​127/​ 92, Pamela Mary Enderby. 85 cjeu, 31 May 1995, Royal Copenhagen, C-​400/​93; cjeu, 26 June 2001, Susanna Brunnhofer, C-​381/​99.

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Decisions and Conclusions B 1 Obligations of the States a General Obligation Article 4 § 3 obliges “the Contracting States who have accepted it to recognise the principle of equal pay for work of equal value, not only in law but also in fact”.86 b Special Duty of Appreciation in Law The right of men and women to equal pay for work of equal value “must be expressly provided for in legislation”.87 Particular Duty of Recognition in Fact c Article 4(3) imposes the following obligations on Contracting States:

–​ the obligation to take legal measures to ensure the effectiveness of the rights in question; –​ the obligation to formulate active policies and take steps to implement them, thereby ensuring the practical enjoyment of the rights in question.88

In this framework, for the principle of equal pay to be applied in practice, each State must take measures on “placing the burden of proof on the employer in certain cases, on state intervention in the fixing of wages, on objective evaluation of jobs and on the raising of wages in sectors characterised by relatively low remuneration and traditionally employing large numbers of women”.89 States must also assess the situation regarding the gender pay gap.90 2 Evaluation of the Situation In order to assess the situation regarding pay differentials between women and men doing work of equal value, States must in their reports to the European Committee of Social Rights indicate:

–​ if and to what extent collective agreements deal directly or indirectly with equal pay;

86 87 88

ecsr, Conclusions i (1969), Statement of Interpretation on Article 4 § 3. ecsr, Conclusions xv-​2 (2001), Slovak Republic; ecsr, Conclusions 2014, Georgia. ecsr, Conclusions xiii-​5 (1997), Statement of Interpretation on Article 1 of the Additional Protocol. ecsr, Conclusions xiii-​5 (1997), Statement of Interpretation on Article 1 of the Additional Protocol. ecsr, Conclusions xvii-​2 (2005), Czech Republic.

89 90

158 Miné

–​ what measures have been taken to improve job classifications and the role of job evaluation as a means of reducing inequalities in pay; –​ what measures have been taken to improve the quality and coverage of wage statistics, as provided for in the action plan on “Priorities and procedures in the enforcement of equality of men and women”; –​ how much attention is paid to the issue of equal pay for women and men in the National Action Plan (nap) for Employment.91

In particular, “States must provide information on the unadjusted pay gap (the difference between the average earnings of female and male employees in all occupations) and the adjusted pay gap (the adjusted pay differential for work of equal value)”.92 On the occasion of the claims lodged by the University Women of Europe (uwe), the Committee refined its assessment by considering that “gender pay gap indicators do not measure discrimination as such, rather they reflect a combination of differences in the average pay of women and men. The unadjusted gender pay gap, for example, covers both possible discrimination between men and women (one component of the “unexplained” pay gap) and the differences in the average characteristics of male and female workers (the “explained” pay gap). Differences in the average characteristics result from many factors, such as the concentration of one sex in certain economic activities (sectoral gender segregation) or the concentration of one sex in certain occupations (occupational gender segregation), including the fact that too few women occupy the better paid decision-​making positions (vertical segregation)”.93 It concluded that its traditional evaluation under article 4 § 3 must be complemented by specific evaluation of the representation of women in decision-​making positions within private companies under Article 20 d esc (rev). 3 Application of the Equality Principle in Practice Effectiveness of the right to equal pay is a notablous challenge. The general persistence of gender pay is obvious despite the multiplication of international and national legal sources. That is what the University Women of Europe (uwe) wished to denounce by lodging a complaint against every States Party to the Charter that has accepted the monitoring procedure. 91 92 93

ecsr, Conclusions xvii-​2 (2005), Czech Republic. ecsr, Conclusions xvii-​2 (2005), Czech Republic. ecsr, University Women of Europe (UWE) v. Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Greece, Ireland, Italy, the Netherlands, Norway, Portugal, Slovenia and Sweden, complaints Nos. 124–​138/​2016, decisions on the merits of 5/​6 December 2019.

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The effective implementation of equal pay for female and male workers and for work of equal value requires the intervention of the State or social actors in several areas. Objective Job Evaluation a Compliance with the obligation of equal remuneration for women and men workers for work of equal value “presupposes the establishment by the Governments of the States concerned with the criteria for the objective evaluation of such work, based on appropriate methods (study commissions, surveys, etc.)”. This objective evaluation of jobs is provided for and spelled out in ilo Convention No. 100.94 For the practical implementation of this assessment, «the Committee considered that the Charter leaves governments with the choice of means to achieve equal pay for male and female workers and that equality can be established through legislation as well as through regulations and collective agreements, on the sole condition that equality is achieved in practice.»95 This possibility for States to entrust the social actors (employers and workers), who negotiate and conclude collective agreements, with the effective implementation of the obligation, is in line with ilo Convention No. 10096 and with European Union law, with regard to the texts97 and case law.98 This objective evaluation of jobs must be carried out within the framework of the development of classification grids, provided for within collective agreements. Thus, classification systems are a vehicle for equal or unequal pay for women and men.

94

95 96 97 98

Article 3 /​1. Where such action will assist in giving effect to the provisions of this Convention measures shall be taken to promote objective appraisal of jobs on the basis of the work to be performed./​2. The methods to be followed in this appraisal may be decided upon by the authorities responsible for the determination of rates of remuneration, or, where such rates are determined by collective agreements, by the parties thereto./​3. Differential rates between workers which correspond, without regard to sex, to differences, as determined by such objective appraisal, in the work to be performed shall not be considered as being contrary to the principle of equal remuneration for men and women workers for work of equal value. Ibidem. Article 2. Dir. 2006/​54, spec. Article 4 al. 2 and Article 21 § 4. cjeu, 1 July 1986, Rummler, C-​237/​85 (job classification system).

160 Miné b Wage Setting States « have the choice of means and may decide that the issue is to be dealt with in collective agreements. However, domestic law must provide a sanction for the violation of the principle of equal pay and set out general rules to be followed by the social partners in wage negotiations (e.g. abolition of differential scales, nullity of discriminatory clauses, etc.). If it is not possible to achieve full equality of pay in practice through collective bargaining, the state must intervene by means of legal methods of wage determination or in any other appropriate manner. »99 c

Increasing Wages in Sectors Characterised by Relatively Low Pay and Traditionally Employing a Large Number of Women This obligation of States was established by the Committee100 but did not produce a decision explaining it.

4 Scope of Application For the Committee, « In order to compare wages and jobs, domestic law must allow for comparisons to be made outside the company, where necessary, for a comparison to be meaningful. This possibility is fundamental to ensure the effectiveness of an objective job evaluation system in certain circumstances, particularly in companies where the workforce is largely or even exclusively female. »101 Therefore, « National law should not unduly restrict the scope of job comparisons, for example by confining them to a single company. »102 Thus, « pay comparisons are possible outside the company when the observed differences in the pay conditions of women and men carrying out work of equal value are attributable to a single source. »103 This comparison « could concern employees working for the same legal person or group of legal persons, as well as employees of several undertakings or establishments covered by the same collective agreement or regulation. In such cases, the actual regime applied to working conditions has a single

99 100 101 1 02 103

ecsr, Conclusions xiii-​5 (1997), Statement of Interpretation on Article 1st of the Additional Protocol; ecsr, Conclusions 2014, Georgia, op. cit. ecsr, Conclusions xiii-​5 (1997), Statement of Interpretation on Article 1st of the Additional Protocol. ecsr, Conclusions xvi-​2 (2004), Iceland, Portugal, Czech Republic; ecsr, Conclusions xiii-​1, p. 130. ecsr, Conclusions xv-​2 (2001), Slovak Republic. ecsr, Conclusions xx-​3 (2014), Romania.

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source, which may be the legislator, the parties to a collective agreement or the management of a group of undertakings. »104 For the Committee, State legislation only allows for comparisons of pay with other companies if the pay differences can be attributed to a single source. The Committee found that one State’s situation “satisfied this principle, since in equal pay disputes comparisons could be made with a typical worker (in a comparable job) in another enterprise, provided that the pay differences could be attributed to a single source”.105 This recommendation of the Committee is in line with EU law.106 The Committee adopts a pragmatic position to ensure the effectiveness of the provisions of Article 4 § 3 of the Charter: it is a question of highlighting the pay gap between women and men in a company and the low levels of women’s pay in a company when no men occupy the jobs concerned. This issue is linked to raising the pay of jobs held mainly or exclusively by women in companies (see above the question of classification grids). 5 Judicial Guarantees a Contrary Legal Norms Any clause in an employment contract (contract of employment) or collective agreement (in the broad sense including the collective agreement) that does not respect the principle of equal pay « must be declared null and void ».107 And the courts must be empowered to overrule them.108 b Right to a Judge Domestic law should provide adequate and effective assistance for alleged wage discrimination. Any employee who believes that he or she has been discriminated against should be able to take his or her case to court.109 c Burden of Proof Domestic law should provide for a shift in the burden of proof in favour of the complainant in discrimination cases, in particular in cases of gender

104 The Committee relies here on the Opinion of Advocate General Geelhoed of 14 March 2002 on the judgment of the European Court of Justice C-​320/​00. 105 ecsr, Conclusions 2012, Netherlands. 106 Directive n° 2006/​54, spec. recital 10. 107 ecsr, Conclusions xv-​2 (2001), Slovak Republic. 108 Ibidem. 109 ecsr, Conclusions i (1969), Statement of Interpretation on Article 4 § 3.

162 Miné discrimination related to pay. This provision is in line with EU law (before the civil courts).110 Redress Regarding Remuneration d Any victim of wage discrimination on the grounds of sex should receive adequate redress, i.e. redress that is sufficiently restorative for the victim and dissuasive for the perpetrator.111 This rule is in line with EU law.112 Thus, in the event of a violation of equal pay between women and men for work of equal value, compensation must cover at least the difference in pay.113 This solution is also adopted by the European Court of Justice (cjeu) in its case law.114 e Protection against Victimisation « Workers who claim their right to equal pay must be protected by law against any form of retaliation. » And « When an employee is the victim of retaliation, appropriate remedies shall be provided. ».115 This provision is in line with EU law. f Compensation in Kind for Retaliatory Dismissal Reparation in kind is the priority reparation. Thus, « in the case of dismissal in retaliation, the remedy should in principle be reinstatement in the same or similar functions. »116 g Compensation for Retaliatory Dismissal In the absence of reparation in kind, the reparation is compensatory. Thus, « It is only if reinstatement is impossible or not desired by the person concerned that damages may be awarded instead, provided that the amount is sufficiently dissuasive and restorative. »117 This compensation must be sufficient to compensate the employee for the damage caused by the retaliatory dismissal and to deter the employer and any

1 10 cjeu 1993, Pamela Enderby, prec.; cjeu 1981, Paula Jenkins, prec. 111 Conclusions xiii-​5 (1997), Statement of Interpretation on Article 1st of the Additional Protocol. 112 Directive n° 2006/​54, spec. Article 18. 113 ecsr, Conclusions xvi-​2 (2003), Malta. 114 cjeu, 21 June 2007, E. Jonkman, C-​231/​06. 115 Conclusions xv-​2 (2001), Slovak Republic. ecsr, Conclusions xiii-​5 (1997), Statement of Interpretation on Article 1 of the Additional Protocol. 116 ecsr, Conclusions xix-​3 (2010), Iceland. 117 ecsr, Conclusions xix-​3 (2010), Iceland.

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other employer from committing comparable acts of retaliation.118 To this end, “the courts must be free to decide the amount of compensation for the termination of the employment relationship”119 (the determination of the amount of compensation is a matter for the courts, not the legislator). « Compensation payments, such as redundancy payments, should not be capped, as they may be neither sufficiently dissuasive for employers nor sufficiently restorative for employees ».120 Here again, the same solutions have been adopted by the Court of Justice in Luxembourg.121 iv

Right of All Workers to a Reasonable Period of Notice for Termination of Employment

Principle A 1 Function The right of all workers to reasonable notice of termination of employment is regarded as one of the elements of fair remuneration, a right which has an essential social function. The issue of notice is also addressed in international law.122 2 Object The main purpose of a reasonable notice period in the event of termination of employment is to give the worker concerned time to look for a new job before his or her current job ends, i.e. while he or she is still receiving a salary. “A reasonable notice period is one which takes account of the employees’ length of service, the need not to deprive them abruptly of their means of subsistence and the need to inform them of the termination in good time to enable them to seek a new job, and during which employees are entitled to their regular remuneration. t is for governments to prove that these elements

1 18 119 120 121 122

ecsr, Conclusions xiii-​2 (1994), Malta. ecsr, Conclusions xix-​3 (2010), Germany. ecsr, Conclusions xx-​3 (2014), Germany. cjeu, 2 August 1993, Marshall ii, C-​271/​91; cjeu, 25 April 2013, C-​81/​12. Termination of Employment Convention, 1982 (ilo) No. 158, esp. article 11: “A worker whose employment is to be terminated shall be entitled to a reasonable period of notice or compensation in lieu thereof, unless he is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the employer to continue his employment during the notice period”.

164 Miné have been taken into account when devising and applying the basic rules on notice periods”.123 Article 4 § 4 of the Charter aims to enable a dismissed worker to find a job.124 3 Scope of Application a Beneficiaries The right to reasonable notice of termination of employment applies to all categories of workers in all sectors,125 regardless of their status, including:





–​ precarious workers in atypical employment relationships: fixed-​ term,126 temporary, part-​time,127 intermittent, seasonal, supplementary128 and other employment129 (the Committee is particularly concerned about the situation of workers in precarious employment relationships) ; –​ manual workers;130 –​ civil servants and contractual civil servants.131

The scope of domestic law must be such that no worker is left without protection. b Situations Article 4 § 4 applies in the case of dismissal (only serious misconduct can justify immediate dismissal).132 This article applies more broadly to all cases of termination of employment, such as bankruptcy, disability or death of the employer (natural person), early termination of the fixed-​term contract. It also applies in the event of termination of the trial period133 (the period of notice during the trial period may be reduced to the extent that it 1 23 124 125 126 127 128 129 1 30 131 132 133

ecsr, Conclusions (2018), Statement of Interpretation on Article 4 § 4. ecsr, Conclusions xiii-​3 (1995), Portugal. ecsr, Conclusions i (1969), Italy. ecsr, Conclusions xiv-​2 (1998), Spain. ecsr, Conclusions xviii-​2 (2007), Slovak Republic. ecsr, Conclusions 2010, Bulgaria. Probationary period, under certain conditions, ecsr, General Federation of Employees of Electricity Companies (genopi-​d ei), Confederation of Public Servants’ Unions (ADEDY) v. Greece, op.cit., §§ 26–​27. ecsr, Conclusions xvi-​2 (2003), Greece. ecsr, Conclusions 2010, Georgia. ecsr, Conclusions 2014, Malta. ecsr, Fédération générale des employés des compagnies publiques d’électricité (genop-​ dei) et Confédération des syndicats des fonctionnaires publics (ADEDY) c. Greece, Collective complaint No. 65/​2011, Decision 23 May 2012, esp §§26 et 28.

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remains reasonable in view of the maximum permitted duration of the trial period).134 c Exclusions The only exception to the right of workers to a reasonable period of notice concerns immediate dismissal for gross misconduct. By way of example, in given circumstances, the Committee considered the following facts to be equivalent to serious misconduct:135 dissemination of state, professional, commercial or technological secrets; violation of equal opportunities and sexual harassment; refusal to provide information which the law, regulations and service rules prescribe to be provided; working under the influence of alcoholic, narcotic or toxic substances; abandonment of position; refusal to undergo the compulsory medical examination; unjustified absence of more than five consecutive days or ten days per year; unusual drop in productivity; repeated or serious failure to fulfill professional obligations; immoral acts making it impossible for the employee to remain in teaching duties.136 Serious misconduct may result from a combination of several minor offences if there has been a prior written warning from the employer.137 Any other grounds for dismissal without notice or compensation were rejected,138 in particular: lack of performance of the worker; insufficient qualification for the job;139 duly established unfitness for work;140 the breaking of the bond of trust with the worker; the worker’s conscription into the armed forces; the arrest and detention;141 the withdrawal of the administrative authorisation necessary for the performance of the work;142 the request of bodies or officials authorised by law;143 economic, technical or organisational reasons requiring staff changes;144 the transfer of the employment contract to the successor employer;145

1 34 135 136 137 138 139 140 141 142 143 144 145

ecsr, Conclusions 2014, Estonia. ecsr, Conclusions 2014, Portugal; Conclusions 2014, Lithuania. ecsr, Conclusions 2014, Russian Federation. ecsr, Conclusions 2010, Albania. ecsr, Conclusions 2010, Armenia. ecsr, Conclusions 2014, Russian Federation. ecsr, Conclusions 2014, Lithuania. ecsr, Conclusions 2014, Turkey. ecsr, Conclusions 2014, Lithuania. Ibid. ecsr, Conclusions 2014, Malta. ecsr, Conclusions 2014, Slovenia.

166 Miné the death of the individual employer or the dissolution of the company;146 the force majeure.147 Appreciation B The Committee assesses the national situation on the basis of the following aspects:



1. according to the source, namely the law, collective agreements, individual contracts and court judgments; during any probationary periods, including those in the public service; the Committee wishes to see an explicit minimum period of notice even if the length of the probationary employment period is short or has recently been reduced by law; with regard to the treatment of employees in insecure jobs; in the event of termination of employment for reasons outside the parties’ control (including insolvency, death of the employer if he/​she is a natural person); in principle such circumstances may not warrant failure to give notice; and any circumstances in which employees can be dismissed without notice or compensation. 2. Acknowledgment, by law, collective agreement or individual contract, of length of service, whether with the same employer or in circumstances of successive precarious forms of employment relations; 3. The components of the employee’s remuneration during the notice period.148

Modalities C 1 Standards The period of notice and/​or compensation should be governed by legal instruments such as legislation, case law, regulations or collective agreement; the length of notice and the amount of compensation in lieu of notice should not be left to the sole discretion of the parties to the employment contract.149 A reduction of the statutory period of notice by collective agreement is only permissible if a reasonable period of notice is maintained.150

1 46 147 148 149 150

ecsr, Conclusions 2014, Georgia. ecsr, Conclusions 2014, Turkey. ecsr, Conclusions (2018), Statement of Interpretation on Article 4 § 4, prec. ecsr, Conclusions 2014, Russian Federation. ecsr, Conclusions xviii-​2 (2007), Netherlands.

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2 Starting Point of the Notice Period Where a decision to terminate employment for reasons other than disciplinary is subject to the completion of certain procedures, the period of notice does not begin until the decision is taken. 3 Notice Period The notice period:

–​ of part-​time workers is calculated on the basis of seniority, not actual weekly working time;151 –​ of workers with successive fixed-​term contracts is calculated on the cumulative seniority of all successive contracts.

4 Exemption of the Worker from the Notice Period It is permissible for an employee to receive wages in lieu of notice, provided that the amount paid is equivalent to what the employee would have earned during the applicable notice period.152 D Conclusions and Decisions The notion of “reasonable” notice has not been defined in abstracto. The Committee assesses situations on a case-​by-​case basis,153 it examines whether the length of certain notice periods is not manifestly « unreasonable ».154 The main criterion is seniority.155 The Committee has often had to rule on the concept of a reasonable notice period in the event of termination of employment. For example,156 where they are considered manifestly contrary to the Charter because the notice periods are too short: 1 51 152 153 154 155 156

–​ two weeks for workers with more than six months of service with the same employer (Poland), –​ two weeks for workers with two years' seniority (Malta), –​ eight weeks for those with five years' service (Malta), –​ or two months for workers with more than 15 years' seniority (Czech Republic). ecsr, Conclusions xviii-​2 (2007), Slovak Republic. ecsr, Conclusions 2010, Turkey. ecsr, Conclusions xvi-​2, Statement of Interpretation on Article 4 § 4, prec. ecsr, Conclusions xiii-​3 (1995), Portugal. ecsr, Conclusions 2007, Armenia. ecsr, Conclusions xvi-​2, Poland, Malta, Czech Republic.

168 Miné In an important case, concerning Article 4 § 4, the Committee “de-​legitimises” austerity measures affecting the substance of Charter rights and explicitly states the principle of non-​regression in times of economic crisis.157 v

Salary Deductions

Object A Article 4(5) provides for the right of workers to a framework for salary deductions. Such deductions must be subject to reasonable limits and must not have the effect of depriving the worker and his dependants of “their basic means of subsistence”.158 Thus, situations where the unattachable portion of the wage leaves workers with only 50% of the minimum wage, an amount that is not sufficient to ensure their subsistence and that of their dependants, are not in conformity with the Charter.159 An unattachable portion of the wage in the range 50–​75% may also not be in conformity with the Charter.160 Scope of Application B 1 Persons Article 4(5) applies to all workers, including civil servants and contractual civil servants.161 2 Retentions All deductions are concerned, whatever their nature, to include reimbursements of advances or advances on salary, compensation for benefits in kind, assignments or pledges of salary, alimony, union dues, tax debts,162 157 ecsr, Fédération générale des employés des compagnies d’électricité (genopi-​d ei) et Confédération des syndicats des fonctionnaires publics (ADEDY) contre Grèce, complaint No. 65/​2011, op. cit.. §§ 16–​17. 158 ecsr, Conclusions xvi-​2 (2004), Poland; Conclusions xi-​1 (1991), Greece. 159 ecsr, Conclusions 2014, Estonia; Conclusions xvi-​2, Czech Republic (resources below subsistence level). 160 ecsr, Conclusions xx-​3, Iceland (2014), the Committee « considers in the present case that the ceilings provided for by Regulations Nos. 124/​2001 and 491/​1996 still allow for situations in which workers with the lowest pay are left with only 75% or even 50% of their wage –​an amount which does not enable them to provide for themselves or their dependants ». 161 ecsr, Conclusions 2014, Portugal. 162 ecsr, Conclusions 2014, Estonia.

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deductions from the wages of workers guilty of fraud against their employer,163 etc. Modalities C 1 Accepted Standards and Circumstances Deductions can only be allowed in certain circumstances specified in a legal instrument (law, regulation, collective agreement or arbitration award). 2 Non-​admitted Standards and Circumstances The determination of deductions should not be left solely to the parties to the employment contract.164 Workers should not be allowed to waive their right to limited wage deductions.165

Concluding Remarks

When faced with a majority of States that do not meet the 60% threshold, instead of loosening its standards (or, on the opposite side, rigidly and hopelessly expecting the States to reach an ‘unattainable ideal’), the Committee opts for a flexible yet pragmatic and nuanced approach, by considering other relevant factors (see the compensatory effect of allocations, social benefits, tax credits etc. –​Article 4 §1.), thus stimulating the States to find solutions and to not ‘give up’. In the same vein, the Committee ‘holds its ground’ when it comes to the ‘hiding behind’ EU/​Troika agreements or `exceptional financial problems` attitude of the States that implemented austerity programs –​which comes in stark contrast to ECtHR’s disappointing approach. In light of such “pioneering case-​law”,166 the ecsr increasingly stand out as the true “guardian of the social state in Europe”167–​which is indeed remarkable and richly deserved recognition.

163 ecsr, Conclusions xvi-​2 (2004), Greece, « these deductions may only concern that part of the remuneration which is not used to meet the essential needs of the worker and his/​ her family ». 164 ecsr, Conclusions xvi-​2 (2003), Norway and UK; ecsr, Conclusions 2005, Norway. 165 ecsr, Conclusions 2005, Norway; ecsr Conclusions xviii-​2 (2007), Poland; ecsr, Conclusions 2014, Portugal. 166 Despina Sinou, “Les organes du Conseil de l’Europe (Cour européenne des droits de l’homme et Comité européen des droits sociaux)”, in Carole Nivard (dir.), Justice sociale et juges, Institut Francophone pour la Justice et la Démocratie, 2021, p. 161. 167 Carole Nivard, « Le Comité européen des droits sociaux, gardien de l’Etat social en Europe? », Civitas Europa, n° 33, déc. 2014, pp. 95–​109.

article 5

The Right to Organise Cristina Sâmboan With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations. i

General Presentation

The Right to Organise –​Particular Expression of the General Freedom of Association and One of the Two Facets of the Trade Union Freedom Articles 5 and 6 illustrate the protection that the European Social Charter of 1961 understood to grant to the two sides of trade union freedom (liberté syndicale, as the concept is enshrined in the French doctrine), namely: the right to form and to join a trade union (or the right to organise –​Article 5),1 and the rights to negotiate and to take collective actions, exercised through a trade union (Article 6).2 These articles were taken as such, without change, by the A

1 Article 5 uses the general notion of “organisation” instead of “union”. In this respect, the Committee repeatedly made clear that, when determining whether the requirements of Article 5 have been fulfilled by a collective entity, neither the domestic qualification nor the status are relevant (ecsr, Conclusions 2006, France; ecsr, EuroCOP v. Ireland, complaint No. 83/​2012, decision on the admissibility and merits of 2 December 2013, §§ 76–​77; ecsr, CESP v. France, complaint No. 101/​2013, decision on the merits/​27 January 2016, § 39), but its real capacity to defend its members’ interests, which is assessed by the Committee from case to case, based on a set of criteria to be analysed below in this chapter. 2 “(…) la liberté syndicale qui se décline en deux droits au sein de la Charte, le droit syndical (Article 5, cse) et le droit de négociation collective (Article 6 cse)”. (Carole Nivard, La justiciabilité des droits sociaux, Bruylant, Paris, 2012, p. 368).

© Koninklijke Brill NV,

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revised European Social Charter and, in addition, they are both part of the so-​ called “hard-​core” of the Charter3 –​which shows the importance the Charter’s authors granted to this freedom.4 Indeed, trade union freedom is not only one of the fundamental conquests of modern democracy, the fruit of the efforts and sacrifices of generations of workers, but also a true foundation stone for labour law.5 One of the singularities of labour law is that the possibility of one of the contracting parties to negotiate and act not only individually, but also collectively in order to establish and influence the conditions of the contractual relationship. Such particularity is explained by the need to ameliorate the intrinsic asymmetry of the employment relationship –​an atypical one for the classical standards of a democratic society, since one party makes itself available to the other under conditions of economic dependence and legal subordination. Hence, the alternative of compensating the individual power deficit through the force of collective action,6 can be exercised through the workers’ right to organise. Therefore, on the one hand, trade union freedom is an expression of the freedom of association that workers, like all citizens, enjoy. This reality reflects the first facet of trade union freedom and is illustrated in the esc (rev)by the right to organise laid down by Article 5. On the other hand, insofar as the right to organise serves as a basis for two other rights –​the right to voluntary negotiation and the right to collective action –​it could be argued that the right to organise is a particular form of manifestation of the freedom of association. Such prerogatives are the exclusive privilege of workers’ organisations and 3 Indeed, Articles 5 and 6 form part of the nine dispositions of the esc’s Part 2 of which States Parties have to accept at least six (under Article A, b of esc Part 3). 4 The text also includes employers’ organisations under its protection. But the fact that the overwhelming proportion of the Article 5 case law refers to trade unions (compared to the small number of specific Charter issues generated by the activity of the employers’ organisations) clearly shows its main practical utility. This conclusion is further reinforced by the initial vision of the Charter’s authors, as it appears from “les travaux préparatoires”: thus, in the first drafts of the Social Committee, the proposed text of the article intended to lay down the right to organise made explicit and exclusive reference to “the right of workers to form or join trade unions”, but it didn’t mention similar protection for the benefit of employers. The change came later and was inspired by the ilo’s Convention No. 87 on Freedom of Association and Protection of the Right to Organise, whose ambit also includes employers’ organisations. 5 « de la révolution industrielle jusqu’à 1945 (…) les étapes de la liberté syndicale ont respecté l’idéale-​type weberien: la répression, la tolérance puis la reconnaissance » (Bruno Veneziani, La liberté syndicale en droit comparé in Annuaire international de justice constitutionnelle, 1998, p. 380). 6 Raluca Dimitriu, Dreptul muncii. Anxietăți ale prezentului (Labour Law. Anxieties of the present), Rentrop & Straton Publishing, Bucharest, 2016, p. 210–​211.

172 Sâmboan cannot be undertaken by another type of association, as they are collective pressure levers specific to labour law. From this perspective, it can be said that the right to organise represents ‘more’ than the freedom of association, while at the same time obviously remains an expression of the latter. These specific effects mark the second facet of trade union freedom, a hypostasis illustrated in the esc (rev) by Article 6 and gradually developed by the ECtHR through its case-​law, using Article 11 of the Convention as a starting point.7 Articles 5 and 6 of the Charter are therefore ‘two sides of the same coin’: the right to organise. As the tripartite Committee on the Freedom of Association of the ILO underlined ever since 1952 in one of its landmark decisions, the right to collective action is a “corollaire indissociable” of the right to organise.8 The European Committee of Social Rights, in its turn, pointed out that “the right to organise, as defined in Article 5, implied that the main object of worker’s and employers’ right to form organisations was to engage in collective bargaining for the defence of their interests”.9 B

Relationship to other International Instruments and to Other Provisions of the Charter The importance of trade union freedom as a “cornerstone of labour law”10 had already been legally established at the international level more than four decades before the Charter was adopted, by asserting the general principle of workers’ freedom of association in the Treaty of Versailles and in the preamble to the ilo Constitution of 1919. The principle had been reaffirmed by Article i b) of the Philadelphia Declaration of 1944 (which also introduced in international law, through Article iii e, “the effective recognition of the right of collective bargaining”) and further ‘given shape’, for the first time in the international instruments for the protection of human rights, by the first two of the 8 “fundamental conventions” (among the 189 adopted within ilo): Conventions No. 87 on Freedom of Association and Protection of the Right to Organise (1948) and No. 98 on the Right to Organise and Collective Bargaining (1949).11 Both of them enshrine a set of rights that articulate each of the two hypostasis of the

7 See infra the commentary of Article 6. 8 Filip Dorssemont and Marco Rocca, in The Charter of Fundamental Rights of the European Union and the Employment Relation, edited by Filip Dorssemont & oth., Hart Publishing, Oxford, 2019, p. 466 (Case No. 28, UK-​Jamaica). 9 ecsr, Conclusions iv (1975), Statement of interpretation on Article 5. 10 Claire La Hovary, Les droits fondamentaux au travail, Graduate Institute Publications, Genève, 2009, p. 59. 11 https://​www.ilo.org/​glo​bal/​standa​rds/​intro​duct​ion-​to-​intern​atio​nal-​lab​our-​standa​rds /​conv​enti​ons-​and-​reco​mmen​dati​ons/​lang-​-​en/​index.htm.

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trade union freedom. Convention No. 87 deals with the first aspect of trade union freedom. In essence, it concerns the individual right of workers/​employers to join and to establish organisations of their own choosing to further and defend their interests, without previous authorization, and the collective right of these organisations to organise their activity autonomously, protected from the interference of public authorities. For its part, Convention No. 98 provides an embryonic configuration of the content of the second component of trade union freedom, related to the actual exercise of this freedom in order to achieve its main goal: protection of workers’ interests. In this respect, the Convention only recognises the right to voluntary negotiation.12 The right to collective action and the right to strike were to be expressly affirmed as fundamental rights 12 years later, but in a different institutional framework, that of the Council of Europe, by Article 6 of the European Social Charter.13 Within the UN institutional framework, the Universal Declaration of Human Rights of 1948 recognised in its Article 23 § 4 “the right to form and to join trade unions” as a distinct right from the general freedom of association enshrined by Article 20 of the Declaration. 18 years later the 1966 International Covenant on Economic, Social and Cultural Rights (icescr) recognised the right to strike (Article 8 d) together with the right to form and join trade unions (Article 8 a) and “the right of trade unions to function freely” (Article 8 c). Within the EU, a first reference to the trade union freedom –​in both its dimensions –​may be found in the Community Charter of Fundamental Social Rights of Workers of 1989 which, in the chapter entitled “Freedom of association and collective bargaining” recognises the freedom of association of “workers and employers of the European Community” (Article 11), the right to voluntary negotiation (Article 12) and the right to take collective action, including the right to strike (Article 13). The fundamental social rights declared in the Community Charter were further developed in the Charter of Fundamental Rights of the European Union (cfreu) that became legally binding with the ratification of the Treaty of Lisbon on 1 December 2009. In Title ii entitled “Freedoms”, Article 12 of the cfreu sets out that “Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests”., thus recognising the first component of the trade union freedom. Further, in Title iv (“Solidarity”), under the “Right of collective bargaining and action”, Article 28 12

Interestingly enough, despite its title, the Convention nowhere mentions the phrase “collective bargaining”. 13 See infra the Commentary related to Article 6.

174 Sâmboan of the Charter established “the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action” to the benefit of workers, employers or organisations of any of them. The second component of trade union freedom is thereby enshrined in the EU legal order.14 With regard to the main international instruments for the protection of civil and political rights, that is the European Convention on Human Rights (1950) and the International Covenant on Civil and Political Rights (1966), both of these explicitly mention the first dimension of trade union freedom, not distinct from the freedom of association, but as a possible form thereof. Both treaties use a similar statement (the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests –​Article 11 echr and Article 22 iccpr, respectively). As can be seen, the first dimension of trade union freedom, as an expression of the general freedom of association, is recognised by all the main instruments of protection of human rights –​even if in a different manner, depending on the nature of the treaty in question. Thus, the instruments of protection of civil and political rights (the echr, within the Council of Europe, and the iccpr within the UN) include explicitly such first dimension in the general right on free association; which highlights the importance and the special status it enjoys. As regards to the instruments of protection of economic and social rights (the European Social Charter, the icescr and the ilo’s conventions), it appears everywhere as a self-​contained right, in a context in which the general freedom of association is not mentioned (which is explicable if we consider that the freedom of association is essentially a civil right, even if, contextually, it can materialise in the form of associations with economic or social purpose). The rights attached to the second aspect of trade union freedom are stipulated only by the instruments of protection of economic and social rights and by the Universal Declaration on Human Rights, and are even there variably,15 while the instruments of protection of civil and political rights (the echr and the iccpr) do not provide any of them. Despite these legal regime differences, the unanimous recognition of the first dimension of trade union freedom (i.e. the workers’ freedom of association, or the right to organise) by all the instruments of protection of human 14 15

Unlike the wording of Article 12 of the cfreu, the text of Article 28 brings an unexpected flat to the right it enshrines, by adding the phrase “in accordance with Community law and national laws and practices”. As it has been seen, the most comprehensive protection is granted by the European Social Charter.

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rights –​both those concerning civil and political rights, as well as those that protect economic and social rights –​had a twofold effect. On the one hand, it makes trade union freedom a “hybrid” right,16 both civil and social, attracting it, as a whole, under the control of all supervisory bodies that monitor the compliance with these treaties, therefore also those bodies called upon to apply treaties that do not explicitly recognise the rights enclosed to its second dimension. The most notable example being that of the ECtHR, a body that enjoys high jurisdictional authority at European level. Indeed, even when the rights to voluntary negotiation and collective action are not explicitly recognised by the instruments of protection of civil and political rights, given the complementary nature of the second side of the trade union freedom, they are the main form of expression at national level of workers’ freedom of association and, therefore, an inevitable corollary right. This context has put a strain on the Strasbourg Court to assess the fundamental nature of these rights, otherwise not mentioned in the echr.17 On the other hand, the same differences in the legal regime made the full recognition of the trade union freedom as a fundamental right by the ECtHR to follow a rather arduous, hesitant path, often marked by inconsistencies, judicial confrontation and mutual influence between the two bodies called to monitor the enforcement of the main treaties concluded within the Council of Europe, namely the Strasbourg Court and the European Committee of Social Rights. The way they have managed to alleviate such disparities with respect to the right to organise will be described hereinafter. The complexity of the European litigation on the second aspect of trade union freedom was escalated by the intervention, in the equation, of the Court of Justice of the European Union, and the disturbing way in which it understood to manage the turbulent marriage between the freedoms of the internal market and the rights attached to trade union freedom further complicated the picture. All these aspects will be analysed in the commentary on Article 6, I only mention them here for the purpose of contextualization, given the organic link between Articles 5 and 6. As to the right to organise, as will be seen, one of its components –​the freedom not to join a trade union –​is one of the most eloquent examples in terms of the decisive influence that the Committee’s interpretations can have on the ECtHR’s case-​law.18 Last but not least, it should be noted that, in the Charter’s economy, besides the obvious and ‘organic’ connection between Articles 5 and 6 esc (rev), these 16 17 18

Carole Nivard op. cit., pp. 367–​368 (such as, for example, the right to work). See the commentary to Article 6. infra, ii.C.

176 Sâmboan two articles along with Article 21 esc (rev) (The Right to Information and Consultation), Article 22 esc (rev) (The Right to Take Part in the Determination and Improvement of the Working Conditions and Working Environment), Article 28 esc (rev) (The Right of Workers’ Representatives to Protection) and Article 29 esc (rev) (The Right of Workers to Information and Consultation in Collective Redundancy Procedures) are those that govern collective employment relationships. ii

The Content of the Right to Organise and Corollary Obligations

The right guaranteed by the Article 5 of the Charter was interpreted by the ecsr in an extensive manner, which is reminiscent of the content of the freedom of association as it is covered by the ilo Convention No. 87. While the provisions of the Article 5 refer explicitly to the individual “freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations” (see Article 2 of the ilo Convention No. 87),19 the Committee has emphasised other components of the right to organise, namely the collective rights of the legal entities that it allows to be created (trade unions and employers’ organisations), which are: their right to be free to form federations and join similar national and international organisations20 (see Article 5 of the ilo Convention No. 87) and their right to be independent in respect of their organisation or functioning21 (see Article 3 of the ilo Convention No. 87). In addition, the Committee examines the compliance with Article 5’s provisions from the perspective of the criteria that trade unions and employers’ organisations need to fulfill under the conditions of the domestic law in order to be deemed representative, so that they are allowed to participate in various consultation and collective bargaining procedures. There must also be provision in domestic law for a right of appeal to the courts, to ensure that all these inherent rights are upheld.22 All the rights mentioned above falling within the material scope of Article 5 must be effectively exercised, because, as the Committee has repeatedly stated, the aim and purpose of the Charter as a human rights protection instrument is to protect rights not merely theoretically, but also “so as to give life and 19 20 21 22

To which was added later the right not to join (see infra, iii.C). ecsr, Conclusions i (1969), Statement of interpretation on Article 5 (1969). ecsr, Conclusions xii-​2 (1992), Germany. ecsr, Conclusions 2016, Malta.

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meaning to the fundamental social rights”.23 In that respect, the effectiveness of the rights established by the Charter implies more than a mere obligation of State to refrain from infringing these rights. It also requires concrete, positive actions, which are meant both to protect the rights from external interference and to ensure the proper conditions for their effective exercise. In regards to Article 5, ever since 1969 the Committee (ecsr) has specifically pointed out that two obligations were embodied in its provisions, having a negative and positive aspect respectively.24 The implementation of the first obligation requires the absence of any legislation or regulation or any administrative practice that impairs the freedom of employers or workers to form or join their respective organisations. By virtue of the second obligation, the Contracting State is obliged to take adequate legislative or other measures to guarantee the exercise of the right to organise and, in particular, to protect workers’ organisations from any interference on the part of employers. Moreover, the State has to take concrete measures in order to ensure that compensation is awarded by the domestic courts25 or in order to fight against such phenomena.26 A Forming Trade Unions and Employer Associations 1 “Trade Unions”: The Principle of Trade Union Pluralism Basically, Article 5 of the Charter enshrines the individual freedom of workers and employers to form and to join organisations representing the interests of workers or employers. Article 5 uses the general notion of “organisation” instead of “union”. In this respect, the Committee repeatedly made clear that, when determining whether the requirements of Article 5 have been fulfilled by a collective entity, neither the domestic qualification nor the status are relevant, but the Article’s genuine capacity to defend its members’ interests, which is assessed by the Committee from case to case.27 The Committee encourages trade union pluralism, recalling that a worker could choose either to join a trade union relating to his trade or profession, 23

24 25 26 27

ecsr, International Commission of Jurists (ICJ) vs. Portugal, complaint No. 1/​1998, decision on the merits of 9 September 1999; ecsr, FIDH v. France, complaint No. 14/​2003, decision on the merits of 9 September 2004; ecsr, European Federation of National Organisations Working with the Homeless (FEANTSA) v. Slovenia, complaint No. 53/​2008, decision on the merits of 8 September 2009. ecsr, Conclusions i (1969), Statement of Interpretation on Article 5. ecsr, Conclusions xx-​3 (2014), Latvia. ecsr, Conclusions xx-​3 (2014), Denmark. ecsr, France, Conclusions 2006; ecsr, EuroCOP v. Ireland, complaint No. 83/​2012, decision on the admissibility and merits of 2 December 2013, § 76, 77; ecsr, CESP v. France, complaint No. 101/​2013, decision on the merits/​27 January 2016, § 39.

178 Sâmboan or to form another organisation.28 It also advocates the formation of ‘inter-​ professional’ unions or the formation of a trade union by the industrial sector rather than by trade. A provision of Cypriot law according to which “only persons actually engaged in, or working at, a trade or calling to which the trade union relates shall be admitted to and retain membership of such union” is seen as being incompatible with the Charter. The Committee pointed out that rather than prohibit the formation of inter-​professional or industrial sector trade unions, these organisations should represent the general rule and that even if a worker’s trade is covered by a trade union, that worker may, along with other workers similarly affected, form another union.29 It also stressed that Article 5 does not expressly refer to trade unions, but to all local, national or international organisations which are set up to protect the economic and social interests of their members.30 States are obliged not to prejudice this right, neither de jure, nor de facto (2). They are also required to take concrete and positive actions in order to protect the right to organise from external interferences. In practice, the latter most commonly occur as a result of the abusive exercise of the employers’ management prerogative (3). 2 Restrictions Imposed by the State Leaving aside the special categories that fall within the exceptions provided by the Charter,31 there are many statutory ways by which the freedom to form a trade union or an employer organisation could be hindered, such as the imposition of extremely restrictive conditions on obtaining legal personality, on the minimum number of members, or the imposition of exaggerated registration fees. The Committee stated that, in principle, both workers’ and employers’ organisations must be free to organise without prior authorisation, and initial formalities such as declaration and registration must be simple and easy to apply.32 The principle of compulsory registration of trade unions is not, on the other hand, incompatible with Article 5, as long as the persons concerned have adequate administrative and jurisdictional protection against abuse of the power to refuse to register a trade union.33

28 29 30 31 32 33

ecsr, Conclusions xii-​2 (1992), Cyprus. ecsr, Conclusions xiii-​1 (1991), Cyprus. ecsr, International Federation of Associations of the Elderly (FIAPA) v. France, complaint No. 162/​2018, decision on the merits of 10 December 2020, §31. Infra, section iii. ecsr, Conclusions 2010, Georgia. ecsr, Conclusions ii (1970), Cyprus.

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With regard to the conditions on the minimum number of members, the Committee has established, in principle, that requirements as to minimum numbers of members will comply with Article 5 only if the number is reasonable and presents no obstacle to the founding of organizations.34 In practice, the Committee expressed a certain inconsistency on assessing the ‘reasonableness’ of the minimum number of members. For instance, a Georgian provision that required a minimum number of 100 persons in order to form a trade union was considered not reasonable and contrary to the Charter.35 Later, the law was amended, so that the minimum number was reduced to 50. The Committee found the new situation to be in conformity with Article 5.36 On the other hand, the requirement, in the Lithuanian law, of 30 members to form a trade union was considered excessive by the Committee, without further explanations.37 The same was considered the Latvian law that required a minimum of 50 founding members to form a trade union outside an undertaking, and one quarter of the employees to form a trade union in an undertaking.38 In other cases, the Committee assessed the relevance of the minimum number of members by reference to certain objective criteria. Thus, for example, following changes in labour legislation, the Romanian law imposed a minimum number of 15 employees from the same company in order to form a trade union (compared to 15 members of the same profession, under the previous legislation). In circumstances where a study carried out by the European Trade Union Institute indicated that 90% of the Romanian companies have only 9 workers or fewer, the Committee felt the need to request additional information on the number of employees in most of the companies registered in Romania, in order to assess the conformity with the Charter.39 In rarer cases, the conditions of formation of employers’ organisations were brought to the attention of the ecsr. Therefore, a provision of national law under which, in order to form an employers’ organisation, the founding members must employ no less than 5% of the total number of employees in a given branch of industry, group, sub-​group, or a line of business or in a territory of 34 35 36 37

38 39

ecsr, Conclusions xiii-​5 (1997), Portugal. ecsr, Conclusions 2010, 2014, Georgia. ecsr, Conclusions 2016, Georgia. ecsr, Conclusions 2010, Lithuania. In the same Conclusions, the Committee noted that a reduction of the threshold to 20 members, or to 1/​10 of all employees (instead of 1/​5), but no less than 3, as it was foreseen by an amendment to the law, would be, if adopted, in accordance with Article 5. ecsr, Conclusions xvii-​2 (2005), xviii-​2 (2007) xix-​3 (2010) and xx-​3 (2014) and 2018, Latvia. ecsr, Conclusions 2014, Romania.

180 Sâmboan a given territorial unit, was seen as an obstacle to the freedom to organise, notably in the case of very small, small and medium-​sized undertakings.40 In Armenia,41 the number of employers required by the domestic law in order to form employers’ organisations was: at the national level, over half of the employers’ organisations operating at the sectoral and territorial levels; at sectoral level, over half of the employers’ organisations operating at the territorial levels; at territorial level, the majority of employers in a particular administrative territory or employers’ organisations from different sectors in a particular administrative territory. The Committee concluded that the situation is not in conformity with the Charter, on the ground that the minimum membership requirements are too high. As regards the situation where national law requires payment of fees for the registration or establishment of an organisation, the Committee stated that such fees must be reasonable and designed only to cover strictly necessary administrative costs.42 3 Restrictions Imposed by the Employer Even in the presence of adequate legal protection, the free exercise of the right provided by Article 5 may as well be hindered in practice, by non-​legal ways. Employers practices of sabotaging union activities –​such as delaying negotiations, repeatedly bypassing the unions when determining wage levels or at the conclusion of bilateral agreements between the Government and multinational enterprises43 –​or overt anti-​union behaviour (such as advising workers against forming trade unions, threatening them with dismissal or reduction in wages, or promising them benefits if they did not join unions),44 by their discouraging effect, are seen by the Committee as a failure on the part of the States to ensure that in practice not only the right to join, but also the right to form trade unions is respected,45,46

40 41 42 43 44 45 46

ecsr, Conclusions 2014, 2018, Serbia. ecsr, Conclusions 2014, Armenia. ecsr, Conclusions xv-​1 (2001) xvi-​1 (2003), United Kingdom; ecsr, Conclusions 2014, 2016, Ukraine. ecsr, Conclusions 2010, 2014, 2016, 2018, Azerbaijan. ecsr, Conclusions 2014, Estonia. ecsr, Conclusions 2010, 2014, 2016, 2018, Azerbaijan. ecsr, Conclusions 2014, Estonia.

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The Right to Join a Trade Union B The Committee pointed out that all workers and all trade union organisations should in principle, under Article 5 of the Charter, be free to decide to which trade union, professional or technical association they wish to belong or to affiliate, respectively.47 In the context in which the workers’ right to join a trade union is the most obvious form of expression of the right enshrined in Article 5 of the Charter and in all relevant legal instruments for the protection of social rights, starting with the ilo Constitution of 1919, there is low probability that the violations of this right to take the form of overt restrictions imposed by the national law.48 For most of the cases, these violations have been presented as discriminatory practices exercised by the employers on the unionized workers, or various forms of pressure on non-​unionized workers in order to discourage any unionist propensities (such as discrimination, harassment, threatens, secret blacklists of the unionized workers etc.).49 Not coincidentally, the Committee constantly reminds that “the freedom guaranteed by Article 5 implies that the exercise of a worker’s right to join a trade union is the result of a choice and that, consequently, it is not to be decided by the worker under the influence of constraints that rule out the exercise of this freedom”.50 Moreover, “trade union members must be protected from any harmful consequence that their trade union membership or activities may have on their employment, particularly any form of reprisal or discrimination in the areas of recruitment, dismissal or promotion because they belong to a trade union or engage in trade union activities”.51 The need to ensure the protection of workers against anti-​ unionist behaviours highlights the importance of the positive obligations of the state provided by Article 5. Thus, adequate protection, at national level, of workers’ right to join a trade union implies the fulfillment of the following cumulative conditions: 1. domestic law must: a) explicitly guarantee the right of workers to join a trade union; b) prohibit discriminatory practices based on union membership, and include effective punishments against the perpetrators;52 c) grant effective remedies, i.e. compensation that is adequate and proportionate to 47 48

ecsr, Conclusions ii, Cyprus. I remind that this section pertains to the material scope of the right to organize, not to its personal scope which has been addressed in the third section of this chapter. 49 E.g., ecsr, Conclusions 2010, 2014, 2016 Bulgaria; Conclusions 2014, Estonia; ecsr, Conclusions 2016, Georgia; ecsr, Conclusions 2014, Serbia. 50 ecsr, Confederation of Swedish Enterprise v. Sweden, complaint No. 12/​2002, decision on the merits of 15 May 2003, § 29. 51 ecsr, Conclusions 2010, Moldova. 52 ecsr, Conclusions 2014, Moldova.

182 Sâmboan the harm suffered by the victim, both pecuniary and non-​pecuniary;53 leaving to the domestic courts the calculation of the remedies is not, per se, an option contrary to Article 5, unless the national case law fails to prove that such compensation is indeed granted and is appropriate and proportionate.54 2. the state must ensure that all the legal conditions mentioned above are fulfilled and applied by the courts and by the other invested authorities. The Committee concludes to the non-​conformity with Article 5 of the Charter when one or more of the above conditions are not met, but also when the States do not prove their fulfillment.55 When the amount of compensation is established by law, the Committee evaluates the adequacy and proportion thereof. A provision of the Bulgarian Labour Code which provided for damages of up to a maximum of 6 months wages in the event of discriminatory dismissal because of trade union activities was considered by the Committee neither adequate nor proportionate, on the grounds that –​in accordance with its ruling under Article 24 of the Charter (which prohibits termination of employment without valid reason) –​the compensation must at least correspond to the wage that would have been payable between the date of the dismissal and the date of the court decision or reinstatement. The fact that an amendment to the law led to the reduction in the length of labour proceedings before the court so that they should be considerably shorter than before and below 6 months did not appear convincing for the Committee to change its view on the matter.56 When assessing how the legal sanctions are applied and how compensations is granted (in other words, in how the law is implemented), the Committee employs a varied range of monitoring criteria, from verifying the way in which Labour inspectorates apply the legal fines to employers who exert pressure on the right to join a trade union,57 requesting statistics on the case-​law in the field of compensations awarded to the victims,58 on the practical application of prison sentences where they are provided59 or on the number of complaints of anti-​union discrimination and the results of legal proceedings and their

53 54 55 56 57 58 59

ecsr, Conclusions xix-​3 (2010), xx-​3 (2014), Latvia. ecsr, Conclusions xx-​3 (2014), Latvia; Conclusions 2014, Azerbaijan; Conclusions 2014, Moldova. ecsr, Conclusions 2014, Armenia; Conclusions 2014, Ukraine. ecsr, Conclusions 2014, Bulgaria. ecsr, Conclusions 2010, Bulgaria. ecsr, Conclusions xx-​3 (2014), Latvia; Conclusions 2014, Azerbaijan; Conclusions 2014, Estonia; Conclusions 2014, Moldova. ecsr, Conclusions 2010 Bulgaria.

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average duration,60 to monitoring the compliance with the rules regarding the burden of proof before the labour courts for the purpose of proving the existence of acts of discrimination.61 The Right Not to Join a Trade Union C 1 Closed-​Shop Agreements When esc was adopted, in many European countries (such as the UK and the Scandinavian countries), compulsory unionism under the legal form or a closed-​shop agreements represented the expression of a solid tradition practiced on an ample scale and, equally, a traditional leverage to preserve a vigorous national unionism. Subsequently, the negative dimension of the trade union freedom was not at all regarded as an implied effect or as an axiomatic hypothesis. No international protection of the negative freedom of association existed, neither in ilo Conventions 87 and 98, nor in the echr nor in the esc,62 although the legality of various forms of union security clauses and practices made the object of several intense debates among labour lawyers, including in the framework of the Council of Europe.63 On the contrary, an Appendix to Article 1, § 2 of esc reflects an apparent intention of neutrality to the diversity of national traditions in the trade union matters. The Appendix stipulated an obligation not to interpret Article 1 § 2 of the esc as prohibiting or authorizing any union security clause or practice, and the Committee had expanded its effects upon Article 5, declaring that “in accordance with the Appendix to the Charter, Article 5 does not rule on the admissibility of union security clauses or practices”.64 Nevertheless, it added that “the Committee considered, however, that any form of compulsory unionism imposed by law [emphasis added] must be considered incompatible with the obligation arising under this article of the Charter”.65 Besides, it was an approach similar to the one of the monitoring bodies of the ilo who had concluded that the admissibility of union security clauses was left to the discretion of the States, as long as they were the result 60 61 62 63 64 65

ecsr, Conclusions 2014, Serbia. ecsr, Conclusions xix-​3 (2010), Latvia. Isabelle Von Hiel in The European Convention on Human Rights and the Employment Relation, edited by Filip Dorssemont, Klaus Lörcher and Isabelle Schömann, Hart Publishing, Oxford and Portland, Oregon, 2013, p. 290–​291. Antoine Jacobs in The European Social Charter and the Employment Relation, edited by Niklas Bruun, Klaus Lörcher, Isabelle Schömann and Stefan Clauwaert, Hart Publishing, Oxford, 2017, p. 242. ecsr, Conclusions i (1969), Statement of interpretation on Article 5. ecsr, Conclusions i (1969), Statement of interpretation on Article 5; ecsr, Conclusions iii (1973), Statement of Interpretation on Article 5.

184 Sâmboan of free negotiations between workers’ and employers’ organizations and were not imposed by the law.66 Closed-​shops clauses are statutory provisions or agreements between employers and workers’ organizations, according to which an individual can only be employed or keep their job upon the condition of membership to a specific union. They bring along obligations for both the employer and the employees, respectively: the obligation of the future employee to join a trade union at the time of taking up a contract of employment (pre-​entry closed shop) or a similar obligation imposed after the recruitment (post-​entry closed shop), and the correspondent obligation of the employer to recruit and keep in the position, or to foster while recruiting or in case of dismissal, only the trade union workers. Closed-​shop clauses have a double advantage: on the one hand, they lead to increased union membership, increasing the trade unions’ power of negotiation; in addition, they are seen as a solution to the problem of ‘free riding’, namely the enjoyment of benefits earned through union struggles by those who did not contribute to the relevant burdens. Sometimes, the compulsory unionism is supported by legal provisions. In other cases, the contradiction between the right not to join a trade union and the right to benefit from the efforts and risks undertaken by the members of the trade union are solved by signing an agreement between the trade union and the employer, by which is imposed a contribution in money to all the employees of the enterprise, including the ones who are not in a trade union, through retentions from salaries.67 There is no doubt that closed-​shop clauses suppose a restriction on the workers’ freedom to organise. The question is: can they be justified by the collective interests of labour? Or, on the contrary, the right not to join a trade union has to be considered as an inseparable fundamental right attached to the trade union freedom? As Virginia Mantouvalou noticed, the controversy about the legality of closed-​shop clauses fully reflects the inherent tension between the employment relation and human rights law.68 The answer to these questions has gradually been formed by the itinerary of the case-​law regarding the negative freedom of association which pointed out

66 67

68

International Labour Office, Freedom of Association Digest, p. 77, No. 365 and 366 (see also Isabelle Von Hiel, op.cit., p. 291). Virginia Mantouvalou, Is There a Human Right Not to Be a Trade Union Member? Labour Rights under the European Convention on Human Rights, London School of Economics and Political Science, lse Library, 2007, p.2; Veneziani, op. cit., p. 384, 385; Dimitriu, op. cit., p. 225; Von Hiel, op. cit., p. 294. Virginia Mantouvalou, op.cit., p.3.

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the dynamics of the interactions between the Committee and the Court from Strasbourg and the influence that these organizations exert upon each other. As it has been seen, ever since 1969, when interpreting the Appendix to Article 1 of the Charter, the Committee had stated that, although Article 5 did not rule on the admissibility of union security clauses or practices, any form of compulsory unionism imposed by law must be considered incompatible with the obligation arising under this article of the Charter. Therefore, initially, compulsory unionism was considered inacceptable by the Committee only to the extent in which it was imposed by the law, without making any distinction between pre-​or post-​entry closed-​shops or between other conventional forms of protecting trade unions by restricting the negative freedom of association. Nevertheless, despite the fact that in many States compulsory unionism was regulated by law, the negative dimension of trade union freedom was taken into account by the Committee as late as 1981, following the landmark decision of ECtHR in the case of Young, James and Webster vs. UK.69 In this judgment, the Court of Strasbourg explored for the first time the closed-​shop agreements. The applicants were dismissed because they refused to join the trade unions with which their employer, British Rail, signed a closed shop agreement when they were already employed. They argued that the negative aspect of the right to associate is an inherent aspect of Article 11 of the echr. Avoiding to clarify the answer to the question whether or not Article 11 guarantees a right not to join a trade union, the Court preferred to point out the gravity of the possible consequences of not complying with the closed-​ shop clause (“a threat of dismissal involving the loss of livelihood”), which, in this case, created “the most serious form of compulsion” that “would strike at the very substance of Article 11”.70 The judgment of Young, James and Webster vs. UK had an important impact upon the activity of the Committee, marking the first monitoring of the States on the compliance with the negative side of the right to organise. As a result, in a first phase, the Committee started to pay close attention to the legislation of the UK on closed-​shops. The issue was pointed out explicitly by the Committee while analyzing the report of the UK of 1981. Firstly, the Committee declared its intention to “revert” to the consideration of the scope of Article 5, namely not to construe the Appendix to Article 1 § 271 as a cause of automatic exclusion 69 70 71

ECtHR, 13 August 1981, Young, James and Webster vs. UK, Nos. 7601/​76 and 7806/​88. Ibid., § 55. The judgment revealed major differences between the judges of the Court. For details on the concurring or dissenting opinions, see Isabelle Van Hiel, op. cit., p. 292. which, as it has been seen, stipulated an obligation not to read Article 1 § 2 as prohibiting or authorizing any union security clause or practice, and which the Committee had considered enforceable also for Article 5.

186 Sâmboan from the scope of Article 5 of the negative right to organize. Then, by direct reference to the solution of ECtHR in Young, James and Webster whose logic the Committee considered had to be applied, mutatis mutandis, to Article 5, it stated that “it should be underlined” that “to interpret this provision [i.e., the Appendix] as permitting every kind of compulsion in the field of trade of union membership would strike at the very substance of the freedom it is designed to guarantee”.72 The Committee did not clarify further what it understood by “every kind” of compulsion, neither did explain, as it had done before, that it refers only to the compulsory unionism imposed by the law; it thus suggested that, from then on, other criteria –​not mentioned yet –​would be taken into account in order to evaluate the conformity of closed-​shops with Article 5. Starting from 1982, the legislation of the UK went through a series of important modifications by which the legal protection of these clauses was gradually diminished. From 1985 to 1987,73 the Committee monitored attentively all these evolutions. Thus, it “was pleased to learn”,74 for example, that the UK eliminated provisions which allowed the dismissal of a worker refusing to become or remain a member of a trade union because of the existence of a closed shop agreement, or which allowed trade unions to take industrial action against an employer who wished to employ a person who was not a member of a trade union.75 Moreover, the UK adopted a new law which subordinated the possibility of concluding a closed-​shop agreement to the approval, by secret ballot, of the large majority of the workers concerned and offered workers substantial safeguards against unfair dismissal.76 Similar constant pressure in modifying the national legislation favorable to the compulsory unionism was exerted upon Denmark (it is true, with different results, since Denmark was to bring modifications to this legislation as late as 2006, as a consequence of the solution by ECtHR in the case of Sorensen and Rasmussen vs. Denmark). Starting from 1989, during several supervisory cycles,77 Denmark was constantly found in breach of Article 5 on this ground. 72 73 74 75 76

77

ecsr, Conclusions vii (1981), United Kingdom. ecsr, Conclusions ix–​i (1985), x–​i (1987), United Kingdom. ecsr, Conclusions ix–​i (1985), United Kingdom. ecsr, Conclusions ix–​i (1985), United Kingdom. ecsr, Conclusions x–​i (1987), United Kingdom. It remains to be seen to what extent these modifications were due to the pressure exerted by the Committee or to the liberal policies of Thatcher’s government “inspired by the Austrian economist Von Hayek” (Veneziani, op. cit., p. 385). However, it is important to mention that the decision in the case of Young, James and Webster vs. UK was made “in the absence of any defence on § 2 of Article 11 by the British Conservative government” (Van Hiel, op. cit., p. 291). ecsr, Conclusions xi–​i (1989), xii–​i (1991), xiii–​i (1993), xiv–​i (1998), xvii–​i (2005), Denmark.

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It is interesting to note that, until 1993 (when, as it will be seen, another decision of ECtHR was to modify the picture), the Danish Government defended constantly by invoking the judgment of Young, James and Webster, namely the same judgment that had served as the main argument for the Committee in order to restrict closed-​shops and to justify the start of their monitoring –​ which somehow ironically points out the equivocal character of Young, James and Webster’s decision. Thus, whilst the Danish report argued that the Court expressly avoided to recognize a negative freedom of association in the case, the Committee emphasized that the Court “nevertheless stated that , whereas …”.78 It has to be underlined that, both in the case of the UK and that of Denmark, the Committee had only analysed the legal compulsory unionism, without getting over this limit, as it had ‘threatened’ in 1981. However, in 1989, it made a new decisive step, approaching, this time, the closed-​shops protected exclusively by means of the collective agreements. In Iceland, the inclusion of pre-​entry closed-​shop clauses in the collective agreements represented a practice consecrated on a large scale, although there was no legal obligation in this respect. For this reason, Iceland was found in breach of Article 5. In order to reach this conclusion, the Committee applied the following rationale: first of all, it noted that the right not to be a member of a trade union was not protected in the domestic law (1); then, it found that even though this practice did not stem directly from the law, the pre-​entry clauses had been validated by the Labour Court, so the Committee assimilated this form of validation as being “a legal form of pressure” against workers wishing not to become members of trade unions (2); finally, it concluded that, even in the situation when the validation by the Court would not be assimilated to the law, “that legislation, or lack thereof, which allows for such practices as stand in contradiction with the very substance of the freedom to organise protected by Article 5 of the Charter cannot be held to ensure the effective application of the principle enshrined in Article 5”. In other words, from that moment on, the Committee practically ‘sacralized’ the negative side of the right to organise, by eliminating any nuance or criterion while assessing closed-​shops’ conformity with Article 5 of the Charter. Moreover, it imposed the explicit recognition of the negative freedom by the national legislation, stating that: “(…) the absence of adequate protection of such a [negative] freedom in the national law (either 78

ecsr, Conclusions xii–​i (1991), Denmark.

188 Sâmboan through lack of appropriate statutes or through case-​law validating practices conflicting with the freedom to organise) cannot be considered as consistent with Article 5 of the Charter”.79 The same restrictive approach formed the basis for the successive assessments of Sweden where, in a similar way to Iceland, closed-​shop provisions were not protected so much by the law, as by a long-​standing practice of including them in the collective agreements. From 1995 to 2000 Sweden reported a systematic decrease, from one year to another, in the number of the closed-​ shop provisions in collective agreements, so although in 1995 the Swedish Government report cited four examples of areas where closed-​shop provisions still existed (hotel and restaurant employees, building workers, electricians and metal workers),80 in 1998, the report showed that all workers were, in principle, protected against post-​entry closed shop practices, and that pre-​entry closed shop clauses were only found in ’substitute’ agreements (where an employer was not a member of an employer’s organisation). The Committee concluded that as long as examples of closed shop practices still exist, the situation in Sweden cannot be in conformity with Article 5.81 It was not willing to accept an ingenious solution of compromise proposed by Dutch law, either, consisting in the possibility given to any employee not to be applied the closed shop clause included in the collective agreement, if he/​she “submits grounds against the obligatory membership which in all reasonableness carry such weight for the employee, that the membership cannot be asked of him/​her”.82 If in the beginning it was the judgment of ECtHR in Young, James and Webster that aroused the Committee’s interest in the negative side of the right to organise, the second stage of the judiciary schedule of the negative freedom was marked by the reverse effect exerted upon the Court of Strasbourg by the Committee’s ‘radical’ vision on the closed-​shops (that had way exceeded the Court’s ‘shy’ interpretation of Young, James and Webster). On the 30 June 1993, in Sigurjonsson vs. Iceland, the Court of Strasbourg had to decide on the legal obligation to join a professional organisation (Frami)83 in order to attain a taxicab licence. The Court stated for the first time “courageously” and explicitly84 that “Article 11 must be viewed as encompassing a 79 80 81 82 83 84

ecsr, Conclusions xi–​i (1989), Iceland. ecsr, Conclusions xiii-​3 (1995), Sweden. ecsr, Conclusions xiii-​3 (1995), Conclusions xvi–​i (1998), Conclusions xv–​i (2000), Sweden. ecsr, Conclusions xvi–​i (2003), Netherlands. Frami was not a trade union, but a professional organisation of self-​employed drivers. Frédéric Sudre, Jean-​Pierre Marguénaud, Joël Andriantsimbazovina, Adeline Gouttenoire, Michel Levinet Marile hotărâri ale Curtii Europene a Drepturilor Omului (Les grands arrêts

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negative right of association”85 and that imposing a duty of membership contrary to the applicant’s convictions was a disproportionate interference upon the freedom provided by the Article 11 of the Convention.86 However, the Court had not considered it necessary to determine further whether or not the negative right could be considered on the same footing with the positive right, in other words, whether it could be limited in the same conditions as the positive right, and which is the state’s margin of appreciation while protecting this right (given the fact that, in general, the sensitive character of the social and political matters allows the state a wider margin of appreciation when it comes to freedom of association). The Court felt the need to strengthen its arguments by sources external to its own case-​law, such as the practice of the ilo’s Freedom of Association Committee or the 1989 Community Charter of the Fundamental Social Rights of Workers and others, and, not lastly, the Conclusions of the Committee on the matter.87 The position of ECtHR in Sigurjonsson vs. Iceland, although it represented progress to Young, James and Webster while recognizing by the Court of the negative freedom of association, still brought nuances incompatible to the practice of the Committee which, starting from the assessment of Iceland in 1989, interpreted the negative freedom of association as an absolute freedom. Even when closed-​shop clauses are forbidden by the law, the negative right to organise can be restricted by means of closed-​shop practices which, in most cases, consisted of the de facto discrimination of the workers who did not belong to a trade union, either by exerting various pressures upon them, or by giving some advantages exclusively for the benefit of the trade union workers (such as, for instance, allowances or miscellaneous goods88 or financial benefits in the event of the loss of employment).89 All these practices were firmly qualified by the Committee as being contrary to Article 5 of the Charter.90 This constant `crusade` of the Committee against closed-​shop clauses/​ agreements gave a new impulse to the Court of Strasbourg to take another step

85 86 87 88 89 90

de la Cour Européenne des Droits de l’Homme), ed. Rosetti International, Bucuresti, 2011, p. 534. ECtHR, 30 June 1993, Sigurdur Sigurjonsson v Iceland, No. 16130/​90, § 35. Ibid., § 41. Ibid., § 35. ecsr, Conclusions xix-​3 (2010) and xx-​3 (2014), Denmark (Danish law had been amended in 2006 and closed shop agreements had therefore become prohibited). ecsr, Conclusions xi–​i , Iceland. ecsr, Conclusions 2010, France; Statement of Interpretation on Article 5; ecsr, Confederation of Swedish Enterprises v Sweden, complaint No 12/​2002, Decision on the merits of 22 May 2003, §42.

190 Sâmboan on the recognition path of the negative freedom of trade union association. In 2006 in Sørensen and Rasmussen v Denmark,91 both applicants (a student and a gardener), in order to get a job, had been conditioned by a pre-​entry agreement to belong to a trade union (sid). The Court reiterated that Article 11 of the echr encompasses not only a positive right, but also a negative one (Sigurjonsson v. Iceland), but this time it added that it is in principle possible that the positive and the negative sides of Article 11 should be afforded the same level of protection. Another new element brought by Sorensen and Rasmussen was the fact that it attached the negative freedom of association to the notion of “personal autonomy” which, according to the Court, “is an important principle underlying the interpretation of the Convention guarantees”.92 It also concluded that even in the area of trade union freedom, given the sensitive character of the social and political issues involved, States enjoyed a wide margin of appreciation, however, in regards to closed-​shop agreements, the margin of appreciation has to be reduced.93 The Court had largely referred to the Conclusions of the Committee which had repeatedly found that the Danish legislation on closed shops was contrary to Article 5 of the Charter.94 Unlike the Committee, the Court didn’t go so far as to impose a de plano prohibition of the closed-​shops, leaving space for the matter to be addressed on a case-​to-​case basis, according to circumstances. 2 Security Clauses and Industry Charges The Committee takes a more nuanced approach when assessing the security clauses, i.e. automatic deductions from the wages of all workers, whether or not union members, intended to finance the trade union activity within the undertaking. These clauses are seen as a solution to the so-​called ‘free riding’, namely the enjoyment of benefits earned through union struggles by those who did not contribute to the relevant burdens. The Committee approached the matter in one major collective complaint filed in 2002.95 The Confederation of Swedish Enterprises alleged that in Sweden the negative right to organise was violated in practice, inter alia, because, according to the collective agreements concluded in the construction sector, non-​unionised workers were forced to accept compulsory deductions from their wages at source for direct transfer to the relevant trade union 91 92 93 94 95

ECtHR, 11 January 2006, Sørensen and Rasmussen v Denmark, Nos. 52562/​99 and 52620/​99. Ibid., § 54. Ibid., § 58. Ibid., §§ 35–​36. ecsr, Confederation of Swedish Enterprises v Sweden, op. cit.

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(sbwu) in exchange for its monitoring activity regarding the correctness of the wages paid to workers (members or not members of sbwu). The Committee considered that the system of wage monitoring may, depending upon national traditions, be assumed either by public authorities, by professional associations or by trade unions. In the latter case this could legitimately require the payment of a fee which, as a consequence, cannot be regarded in itself as unjustified as long as its alleged earmarking is real and the fee is proportionate to the cost of the work carried out and to the benefits it brings to the workers. It also considered that the fee cannot be regarded as an interference with the freedom of a worker to join a trade union, as its payment does not automatically lead to membership of the sbwu. However, the Committee added that if it were to finance activities other than wage monitoring, these fees would be deducted, at least for a part, in violation of Article 5 (§42 of the Decision).96 97 In a similar case, in a first phase, the Committee concluded that the obligation on non-​unionised workers to pay a fee to the trade union that had negotiated the applicable collective agreement, even though such agreements are applied ope legis to all workers, whether or not they were trade union members, was not in conformity with Article 5.98 It later revised its position in the light of the principles laid down in the decision delivered in Confederation of Swedish Enterprise v. Sweden. Thus, it noted firstly that the contribution helps to finance an activity that benefits all employees; secondly, that the contribution is not obligatory and is not earmarked for a particular trade union; finally, that there is no statutory provision for automatic affiliation to a trade union.99 The approach is slightly different when it comes to the so-​called “industry charges”, i.e., a fee that must be paid to an employers’ organisation by non-​ members employers. Thus, by referring to the judgment of the ECtHR in Ólafsson vs. Iceland,100 the Committee concluded that a statutory obligation of a non-​member employer to pay the industry charge had amounted to an interference with its right not to join an association.101 It is worth mentioning, 96

Interestingly enough, in the 2018 Digest of the case law of the European Committee of Social Rights, the provisions of § 42 are interpreted as an absolute interdiction of all union security clauses (`To secure this freedom, domestic law must clearly prohibit all pre-​entry and post-​entry closed shop clauses and all union security clauses, including automatic deductions from the wages of all workers, whether union members or not, to finance the trade union acting within the company’) (Digest, p. 95, footnote 494). 97 ecsr, Confederation of Swedish Enterprises v Sweden, op.cit. 98 ecsr, Conclusions 2002, Romania. 99 ecsr, Conclusions 2004, Romania. 100 ECtHR, 27 April 2010, Vörður Ólafsson v. Iceland, App. No. 20161/​06. 1 01 ecsr, Conclusions xx-​3 (2014), xxi-​3 (2018), Iceland.

192 Sâmboan however, that in Ólafsson, unlike the Committee, the ECtHR did not consider such an obligation as being, per se, contrary to Article 11 of the Convention, but only to the extent in which there had been a lack of transparency and accountability, vis-​à-​vis non-​members, as to the use of the revenues deriving from the charge. Trade Union Activities D Trade union freedom circumscribes not only the individual rights of workers to form, to join or not to join a trade union, but also a collective legal entity with its own rights: the trade union. The collective dimension of the trade union freedom includes a functional element, consisting of the right to use the specific means of collective action to achieve its main purpose, i.e. protection of the economic and professional interests of its members, but also a formal element, respectively: the right of trade unions to organize itself and function autonomously,102 which is an imperative condition for them to be able to perform their purpose. The mere recognition of the right to form trade unions and the rights of trade unions to take collective actions would not be of significant importance if the law did not state the trade unions with effective leverage to maintain their independence, without risking coming under the control of other actors. Not coincidentally, the distinct right of trade unions to operate independently is mentioned both in ilo Convention No. 87 (Article 3) and in the International Convention on Economic, Social and Cultural Rights (Article 8.1.C).103 While the functional element of collective union freedom falls within the scope of Article 6 of the Charter, the formal element is addressed by the Committee in the frame of Article 5, similarly to ilo Convention No. 87. Even if Article 5’s provisions do not mention it explicitly, the Committee stated clearly that it protects not only the right of workers to join or not to join a trade union, but also the right of trade unions to organise freely and to perform their activities effectively, “which is essential for the protection of workers’ economic and social interests”,104 Consequently, excessive state interference constitutes a 1 02 Raluca Dimitriu, op. cit., p. 230. 103 ilo Convention No. 87, Article 3: “Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes”.; International Covenant on Economic, Social and Cultural Rights, Article 8.1. c): “The States Parties to the present Covenant undertake to ensure: (…) (c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others”. 104 ecsr, Conclusions xii-​2 (1992), Germany.

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violation of Article 5. The Committee reiterated this idea repeatedly, emphasizing the `broad` character of trade unions’ autonomy which encompasses also “anything to do with trade unions’ infrastructure or functioning”.105 Legislative measures have to be taken to ensure adequate protection against acts of interference, including rapid appeal procedures.106 The `broad` trade unions’ autonomy has different facets,107 such as (the list is non-​exhaustive):

a) the autonomy with respect to the management of their resources and financial means.108 b) the autonomy to choose their own members and representatives and to take disciplinary actions against their members. 109 Thus, prohibiting the election of or appointment of foreign trade union representatives, or substantially limiting the reasons for which a trade union is entitled to take disciplinary action against its members constitute unjustified interferences into the autonomy of trade unions inherent in Article 5.110

The UK was constantly criticised by the Committee for its legislation on the grounds of “unjustified incursions into the autonomy of trade unions”.111 That legislation prohibited trade unions from expelling members on the basis of their membership of a political party and from indemnifying a union member for a penalty imposed by court for taking part in a strike. It also prohibited sanctions linked to the failure of a union member to participate in or support a strike or other industrial action.112 Even though in 2004, the UK amended 1 05 106 107 108 109 110

ecsr, Conclusions 2010, 2014, Georgia; Conclusions 2014, Serbia. ecsr, Conclusions 2014, Bulgaria. Ibidem. ecsr, Conclusions 2014, Georgia. ecsr, Conclusions 2014, Bulgaria. ecsr, Conclusions 2010, Georgia, Conclusions xx-​3 (2014) United Kingdom. For its part, ever since 1985 the European Commission of Human Rights, in Cheall v. UK, has recognised trade unions’ right to be free to decide, in accordance to union rules, questions concerning admission to and expulsion from the union (ECmHR, Decision of 13 May 1985, App. No 10550/​83). 111 ecsr, Conclusions xvi-​1 (2002), xvii-​1(2004), xviii-​1 (2006), xix-​3 (2010), xx-​3 (2014), xxi-​3 (2018), United Kingdom. 1 12 ecsr, Conclusions xix-​3 (2010), UK. It is worth noting that in a decision of 1993, ECmHR held that a prohibition in British law which prevented the expelling of members for crossing picket lines during an official strike can be considered `necessary in a democratic society` within the frame of Article 11 of the Convention (NALGO v. United Kingdom, Appl. No 21386/​93).

194 Sâmboan the legislation, making it thus possible to exclude union members for reasons linked mainly to the fact they have taken part in the activities of a political party, and not merely because they were affiliated to the party, the Committee didn’t change its position. Besides, in 2007, the ECtHR ruled on a case (ASLEF v. UK) where a trade union was prevented from excluding a member who was affiliated with an extreme right party despite the fact that membership of this party was contrary to the union’s rules. The ECtHR held that this constituted a violation of Article 11 of echr.113 The Court (which referred also to the previous Committee’s conclusions on the UK case) held that “as an employee or worker should be free to join, or not join a trade union without being sanctioned …, so should the trade union be equally free to choose its members”, therefore “Article 11 cannot be interpreted as imposing an obligation on organisations to admit whosoever wishes to join”. The Court admitted that the legal prohibition had the aim of protecting the rights of individuals to exercise their various political rights and freedoms without undue hindrance, and it expressed its ‘sympathy’ with the notion that any worker should be able to join a trade union as a fundamental form of protection against employers’ abuse. Yet, it found that the State has struck the right balance between these individual rights and those of the applicant trade union, as long as the measure of expulsion didn’t affect in a significant way the expelled member’s exercise of freedom of expression, nor was there apparent prejudice in terms of his livelihood or in his conditions of employment. Following the ECtHR’ judgment in ASLEF v.UK, the British law has been amended once again, so that the following conditions must be met for an exclusion or expulsion to be lawful: the decision to exclude or expel must be taken in accordance with the union’s rules; the decision must be taken fairly; and exclusion or expulsion must not cause the individual to lose their livelihood or suffer exceptional hardship. The Committee decided to examine the situation in the light of the concrete examples provided on how the new legal framework is applied and interpreted by domestic courts.114 c) in line with ilo Committee on Freedom of Association case-​law,115 the Committee stated that the right to access to an enterprise’s premises in order to carry out trade union specific activities is also covered by Article 5. States are obliged to ensure by appropriate means that this right is properly observed.116 Unlike the German Government, the Committee did not consider that a 1 13 114 115 116

ECtHR, 27 February 2007, ASLEF v. UK, Appl. No 11002/​05. ecsr, Conclusions xx-​3 (2014), United Kingdom. ilo Digest on Freedom of Association, 2006 (§ 1102–​1109). ecsr, Conclusions xii-​2 (1992), Germany; Conclusions xv-​1 (2000), France.

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difference must be made in this regard between trade union representatives not belonging to an enterprise and those who are employed within the enterprise.117 Moreover, not only elected representatives of the most representative trade unions must be given access to the enterprise’s premises in order to take part in trade union activities, but also representatives of other trade unions.118 However, this right should be exercised taking account of the employer’s rights and interests, such as the efficient operation of the company and the requirements of confidentiality and safety.119 Even where the national law provide appropriate guarantees in order to secure the above-​mentioned rights, trade unions’ autonomy may be subjected to various de facto forms of pressure, such as: interferences of the public authorities or employers in the internal matters of trade unions, pressure upon their members to change their affiliation,120 denying access to company’s premises,121 prohibition of collection of trade union dues,122 discrimination and harassment of trade union’s members.123 In the latter case, discrimination on the grounds of trade union membership is approached by the Committee not only as a hindrance to the rights to form and to join trade unions,124 but also as an interference into the autonomy of trade unions. E Representativeness 1 The Trade Union Pluralism Conundrum The principle of trade union freedom has as corollary the principle of trade union pluralism.125 The ilo Convention No. 87 does not make the latter obligatory but requires it at least to remain possible in order to ensure trade union democracy, enabling workers to avoid the risk of being subdued to one or few confederations politically controlled.126 On the other hand, insofar as it has the effect of an ‘atomization’ of the trade union movement, the trade union pluralism weakens and divides trade unions, depriving them of their power to 117 Regarding the different cultural traditions on the approach to the exercise of trade union freedom within the enterprise, see Bruno Veneziani, op. cit., p. 388. 118 ecsr, Conclusions xix-​3 (2010), Spain. 119 ecsr, Conclusions xii-​2 (1992), Germany. 120 ecsr, Conclusions 2010, Moldova. 121 ecsr, Conclusions 2014, Bulgaria. 122 ecsr, Conclusions 2014, Georgia. 123 ecsr, Conclusions 2014, Ukraine; Conclusions 2016, Armenia. 124 See also supra, sections ii.1 and ii.2. 125 Committee on Freedom of Association, Report 360/​2006 (Case No. 2508/​2006). 126 Trade union pluralism and proliferation in French-​speaking Africa, International Labour Office, Bureau for Workers’ Activities of the ilo (actrav-​i lo) –​Geneva: ilo, 2010.

196 Sâmboan shape negotiations and influence social and economic policies due to lack of representativeness. Besides, as Sanda Ghimpu and Alexandru Ticlea correctly observed, trade union pluralism should not promote legal entities equal in rights, but unequal in terms of the ability to represent workers.127 Therefore, conditioning the exercise of those prerogatives that allow trade unions to participate in various consultations and collective bargaining procedures by the fulfillment of certain conditions of representativeness is neither an infringement of trade union freedom nor a discrimination of trade unions without representative status128 since there is a need for a fairly wide membership base in order to give legitimacy to such collective endeavours. Not coincidentally, the ilo Recommendation No. 163 on Collective Bargaining urges states to “facilitate the establishment and growth, on a voluntary basis, of free, independent and representative employers’ and workers’ organisations” and to recognize the representative status of such organisations “for the purpose of collective bargaining”.129 On the other hand, the legal requirements for representativeness should be reasonable (“based on pre-​established and objective criteria”)130 and should not have the effect of inhibiting the trade union movement. The Committee repeatedly expressed its support for the principle of trade union pluralism and its commitment to maintaining the balance between these ‘two sides of the coin’ –​pluralism as an expression of free will, on one hand, and representativity requirements for collective bargaining purposes on the other –​which are not seen as mutually exclusive. Hence, the Irish Government’s attempt to invoke the public interest to justify the negotiation licences,131 arguing that reducing the number of trade unions improves their bargaining power, was firmly rejected by the Committee on the grounds that “the presence of a high number of trade unions is not a phenomenon exclusive for Ireland and does not necessarily entail a weakening of the labour movement as long as trade unions are in a position to organise horizontally and vertically to defend their interest”.132 Not in the least, it is worth noting that, while the principle of trade union pluralism does not exclude agreements between trade unions, it is not compatible with trade union unification in order to create a unique representative body –​which may have the effect of trade union monopoly.133 1 27 Sanda Ghimpu, Al. Ticlea, Dreptul Muncii, Ed. “Sansa”, Bucuresti, 1994, p. 98. 128 2018 Digest of the case law of the European Committee of Social Rights, p. 95. 129 ilo Recommendation No. 163 on Collective Bargaining, Article 2 and Article 3 lett. a). 130 Ibid., Article 3 lett. b). 131 see infra, same section. 132 ecsr, Conclusions iv, Ireland. 133 ecsr, Conclusions 2014, 2018, Moldova.

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2 Reasonable Representativeness Requirements Over the years, the Committee has developed a set of conditions that must be met by the domestic representativeness requirements, in order for them to be reasonable and not to infringe the trade union pluralism, namely:134 a) the decisions on representativeness must not present a direct or indirect obstacle to the founding of trade unions135 (see also the above subsection A) and they must be open to judicial review or, at least, to review by an independent body.136 b) the areas of attributions reserved to representative unions only should not include key trade union prerogatives. Therefore, trade unions that are not representative should retain certain key prerogatives, such as: i) approaching the authorities in the individual interest of an employee; ii) assisting an employee who is required to justify his or her action to the administrative authorities; iii) displaying notices on the premises of services; iv) receiving documentation of a general nature concerning the management of the staff they represent;137 v) participating to collective negotiations or exercising other key trade union prerogatives (for example they may approach the authorities in the collective interest of the staff they represent);138 vi) having access to premises and facilities for their activities; vii) participating in board meetings of the company to discuss matters of professional, economic and social interest and receiving from the employers the necessary information for conducting collective bargaining;139 c) criteria used to determine representativeness must be reasonable, clear, predetermined, objective, prescribed by law and open to judicial review. When the criteria of representativeness are not laid down in legislation it is for the state to show that such criteria are part of established case-​law.140 Assessing reasonableness of representativity criteria requires a pragmatic approach, hence, in some cases it might take time to estimate their real social impact. Noting the criticism against a new threshold of representativeness imposed as a result of an amendment to French law (reaching at least 10% of votes cast on the first ballot in the last elections of the staff committee or staff representatives of an enterprise) the Committee considered it necessary to specifically examine the consequences of the implementation of the new

1 34 2018 Digest of the case law of the European Committee of Social Rights, p. 95. 135 ecsr, Conclusions 2014, Andora. 136 ecsr, Conclusions 2010, Albania; Conclusions 2014, Ukraine. 137 ecsr, Conclusions xv-​1 (2000), Belgium; Conclusions 2010, 2014, Malta; Conclusions 2014, Romania. 138 ecsr, Conclusions 2014, Malta. 139 ecsr, Conclusions 2014, Romania. 140 ecsr, Conclusions 2010, Belgium.

198 Sâmboan provision on the exercise of the freedom to organise in the following months and years. The remaining criteria –​respectively, (i) respect for republican values; (ii) independence; (iii) financial transparency; (iv) seniority (two years’ experience in the professional and geographic area concerned by the collective negotiations) –​were considered by the Committee to be clear, predetermined, objective, prescribed by law.141 The new rules for representativeness provided by an amendment to the Romanian law –​according to which, at company level, a trade union has the right to bargain and sign a collective agreement only if its members represent at least half plus one of the company’s total number of employees (compared with one-​third in the previous legislation) –​cannot be reasonable due to the fact that, as a consequence, only one trade union can be representative in a company, compared to up to three under the old legislation.142 The Committee has constantly criticised the Irish system of negotiation licences, according to which, in order to obtain the right to collective negotiation, apart from having a minimum number of members (500), any trade union in Ireland had to deposit a minimum sum of £5,000 (in the case of trade unions of less than 2,000 members) and a maximum of £15,000 (for trade unions of more than 39,000 members) (figures have subsequently changed over the years). While not rejecting in principle the administrative fees as long as they are aimed to cover the minimal administrative costs (which was not the case),143 the Committee considered that requiring a negotiating licence to reach collective labour agreements and imposing administrative fees in order to have access to social dialogue (which is one of the employers’ obligation) “was such as to infringe the very nature of trade union freedom” and could not therefore be considered as compatible with this provision Article 5 of the Charter.144 1 41 142 143 144

ecsr, Conclusions xv-​1 (2000), France. ecsr, Conclusions 2014, Romania. ecsr, Conclusions iv, Ireland. For not very clear reasons, the Committee has also concluded that the statutory provision which permitted the withdrawal of Irish negotiation licences of the unions who persistently fail to provide for secret ballots or who fail to insert the requirement of a secret ballot in their rulebook, is also contrary to Article 5 of the Charter. This approach comes in contrast to ilo Committee on Freedom of Association’s practice, according to which “the existence of legislation which is designed to promote democratic principles within trade union organizations is acceptable. Secret and direct voting is certainly a democratic process and cannot be criticized as such” (ilo Digest on Freedom of Association, 2006, § 378). The entire ‘saga’ of Irish negotiation license can be tracked in Conclusions ii, iii, iv, vii, xiii-​1, xiii-​3, xiv-​1, xv-​1, 2016, Ireland. See also Andrzej M. Šwiątkovski, Charter of Social Rights of the Council of Europe, Kluwer Law International, 2007, p. 202.

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Personal Scope

In terms of scope rationae personae, Article 5 –​similar to Convention 87 on the Freedom of Association and Protection of the Right to Organise –​clearly delineates from its first paragraph the sphere of its recipients: workers and employers.145 In the following, I will show how the Committee has broadened the personal scope of Article 5 by laxly interpreting the term “workers”(A). However, despite States being obliged not to impair the right provided by Article 5 –​neither de jure, nor de facto –​there are some professional categories whose right to organise can lawfully be limited under certain circumstances. Some of these exceptions are the ones that may be framed within the provisions of Article G esc (rev) (Article 31 esc) which lays down the cumulative conditions that must be met by any limitation to the rights enshrined by the Charter, i.e.: it is prescribed by law and is necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals. When it comes to Article 5, this is usually the case of some activities associated with the public function and they are analysed by the Committee on a case-​by-​case basis (B). The other exceptions are specifically referred to in the very provisions of Article 5, i.e. paragraphs 2 and 3 which mention two occupational categories whose right to organise may be restricted a priori by state authority: the police (§ 2) and the armed forces (para 3). However, the wording used in the two paragraphs is different: in the case of § 2, the text allows States to determine “the extent” to which the guarantees provided by the first paragraph shall apply to the police, while § 3 seems to leave it up to each state authority even the option of suppressing these guarantees when it comes to the members of the armed forces. The distinct legal regime of the police and armed forces in the case of the freedom of association (and of the right to organise, in particular) is not specific to the Charter. Similar exceptions are provided by Article 11 § 2 of the echr, Article 22 § 2 iccpr, Article 8 § 2 icescr146 or Article 9 of Convention 87 on the Freedom of Association and Protection of the Right to Organise. Such a regime is usually justified by the special nature of the tasks and duties assigned to these two occupational categories, namely the defence of public order and national security. These tasks are associated with functions that traditionally 145 as opposed to the general term ‘everyone’, used by Article 8 of icescr or by corresponding texts in echr or iccpr, which is explicable in the case of the latter two, as they establish the general freedom of association. 146 which adds public position to the list of possible limitations.

200 Sâmboan constitute the privilege of the state authority and it is widely considered that their execution might be hindered by trade unions’ specific ways of action. In actual fact, public order and national security are part of those public interest values that justify limitations of the fundamental rights in the vast majority of international instruments for the protection of human rights, including Article G/​Article 31 of the Charter.147 The difference is that, unlike Article 5 of the Charter, the other treaties only allow for the limitation of the right to organise, but not for its suppression, as is the case of paragraph 3 of Article 5 of the Charter, which refers to the armed forces.148 As was to be expected, this difference has led –​at least at the beginning –​to divergent approaches to this issue, on the part of both the echr and the ecsr. However, as I will show below, over time the Committee’s way to address the armed forces situation has shifted towards a much more nuanced and aligned to echr’s perspective. Either way, as will be seen, in stark contrast to the notion of ‘worker’, all types of exceptions have been narrowly interpreted by the Committee in its case law (C, D). It should also be noted that under Article 19 § 4b of the Charter, States Parties must secure for nationals of other parties treatment not less favourable than that of their own nationals in respect of the membership of trade unions –​which, in the Committee’s view, means also eligibility for administrative, managerial or representative functions within the trade unions or within other official bodies in which labour and management participate.149 A “Workers” From the very beginning of its activity, the Committee made clear its intention of interpreting the notion of “worker” in an extensive manner, by including in its scope not only the workers in the private sector but also the public servants.150 Later on, on several occasions, it further clarified the term from the same inclusive perspective, as referring to any person who exercises rights 147 It can therefore be stated that the two expressly regulated exceptions provided by § 2 and § 3 of Article 5 are, actually, particular applications of Article G (Article 31). 148 Only the Charter of Fundamental Rights of the European Union does not provide for any exceptions (Article 12 and 28). 149 ecsr, France, Conclusions vi (1979); ecsr, Austria, Conclusions xiii-​3 (1995) –​ xviii-​ 1 (2006); Luxemburg, Conclusions xiv-​1 (1998) –​ xviii-​1 (2006); Finland, Conclusions xv-​ 1(2000); Netherlands, Antilles, Conclusions xv-​1 (2000), xv-​ 1 (2003); Bulgaria, Conclusions 2001, 2004; Lithuania, ecsr, Conclusions 2006; Romania, Conclusions 2002–​2014; Ukraine, Conclusions 2014. 150 ecsr, Conclusions (1969, 1973), Statement of Interpretation on Article 5; ecsr, Cyprus, Conclusions ii (1971).

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resulting from work –​whether they have a formal contract of employment or not,151 whether they are homeworkers,152 self-​employed or they practice liberal professions153 and, moreover, even they are unemployed or retired.154 In the case of the latter two, the prohibition to form trade unions is not contrary to Article 5, as long as they are entitled to form organisations that can take part in consultation processes connected with their rights and interests.155 Both workers and employers are entitled to fully enjoy the right provided by Article 5 and any restrictions have to be justified through the lens of Article G esc (rev)/​Article 31 esc. General Restrictions Based on Article G esc (Rev)/​Article 31 esc. Civil Servants Putting aside the specific situations provided by § 2 and 3 of Article 5 (to be analysed below), any limitation to the right to organise –​similarly to every right of the Charter –​must meet the cumulative conditions laid down by Article G of the Revised Charter (Article 31 esc). In most cases, these kinds of situations are related to the exercise of the public function. The Committee has repeatedly stated that in principle civil servants must fully enjoy their right to organize, any restriction applied de plano to this category being deemed as unacceptable.156 Nevertheless, it admitted that some restrictions may apply to certain categories of civil servants, by reason of their specific duties and responsibilities.157 In practice, such is usually the case of high-​ranking civil servants (senior civil servants exercising public powers, government officials, officials in management positions158 etc.). These particular situations are analysed by the Committee on a case-​by-​case basis, with States Parties being held to demonstrate that any limitation is rigorously justified in the light of Article G/​31 and proportionately applied. Thus, for instance, the prohibition applied to all senior government officials exercising decision-​making powers

B

1 51 152 153 154 1 55 156 1 57 158

ecsr, Armenia, Conclusions 2014. ecsr, Poland –​Conclusions xvi-​1 (2003), xvii-​1 (2005), xviii-​1 (2006), xix-​3 (2010). ecsr, Armenia, Conclusions 2014. ecsr, Latvia, Conclusions xviii-​2 (2006), xix-​3 (2010); ecsr, Poland, Conclusions xvi-​1 (2003), xvii-​1 (2005), xviii-​1 (2006), xix-​3 (2010). ecsr, Conclusions 2010, Statement of Interpretation on Article 5. ecsr, Statement of interpretation on Article 5; Conclusions ii (1971), Cyprus; Conclusions 2002, Romania; Conclusions xvi-​1 (2003), Poland; Conclusions xviii-​1 (2006), Spain; Conclusions 2010, Albania. ecsr, Conclusions 2010, Albania. ecsr, Conclusions 2002, 2006, 2010, Romania; Conclusions 2010, Albania; Conclusions xix-​3 (2010), Poland.

202 Sâmboan from forming trade unions was considered too wide to be compatible with the Charter, the States failing to explain the reasons behind such a general ban.159 The analysis of a Polish regulation that did not permit appointed civil servants to perform trade union functions, despite allowing them to form or join trade unions, led to a similar conclusion.160 However, a restriction on public servants in management positions who were not allowed to hold both a position of elected representative in a trade union’s governing body and their post in the civil service at the same time was considered justified by the possible conflict of interests that could result in the event of negotiations between the trade union and the authorities.161 Similarly, when it comes to those posts closely related to the judicial function –​such as judges, public prosecutors, justice auditors –​they may not be allowed to join trade unions as long as they have the right to organise in professional associations and other organisations aiming at representing their interests, promoting training and protecting their status.162 Specific Restrictions Based on Article 5 Paragraphs 2 and 3 C 1 Members of the Police Force As already pointed out, § 2 of Article 5 allows a certain margin of appreciation to the States regarding the possibility of restricting the right to organise when it comes to members of the professional police body. However, from its first Interpretative statements of Article 5, the Committee has made it clear that this margin of appreciation cannot be unlimited, which means that it cannot result in an outright suppression of police members’ right to organise. In order to reach that conclusion, the Committee resorted to both literal interpretation (which highlights the different wording of paragraphs 2 and 3 of Article 5) and to teleological interpretation, by making reference to the “travaux préparatoires”.163 Therefore, the situation of States such as Cyprus164 or Italy165 which at the time denied the right of police members to set up or to join trade unions was considered incompatible with the obligations assumed

1 59 160 161 162

ecsr, Conclusions 2010, Albania; Conclusions 2006, Romania. ecsr, Conclusions xvi-​1 (2003), Poland. ecsr, Conclusions 2010, Romania. ecsr, Conclusions xvi-​1 (2003), Poland; Conclusions 2010, Romania; Conclusions 2018, Ukraine. 163 ecsr, Conclusions i, Statement of Interpretation on Article 5 (1969). 1 64 ecsr Conclusions ii (1971), iii (1973), iv (1975), v (1977), Cyprus,. It was only in 1989 that Cyprus modified its legislation accordingly. 165 ecsr, Conclusions ii (1971), iii (1973), Italy.

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under Article 5.166 So were considered the compulsory membership to a trade union or professional organisation167 –​which led to an explicit recognition of the negative dimension of the freedom of organisation also in the case of the police168 –​or the police trade union monopoly.169 Therefore, in terms of the positive and negative dimensions of the freedom to organise and the prohibition of trade union monopoly, the situation of police members is similar to that of all workers. Once they established the right of police members to set up or join trade unions or professional organisations, the Committee has assessed other types of intrusions into the police members’ freedom to organise. In this respect, it has repeatedly stated that Article 5 (including the exception provided for in § 2) must be interpreted in conjunction with Article G of the esc (rev) (Article 31 esc), thus showing that the States’ margin of appreciation cannot be unlimited in this case, but neither can it be arbitrary.170 Hence, it can be stated that, from the perspective of the Committee, § 2 merely establishes a relative (not absolute) presumption of compatibility of the police members’ situation with the provision in Article G, i.e. the text presumes that a legal restriction on the police members’ right to organise can be regarded a priori as determined by a legitimate purpose. However, this does not exempt States from the obligation to observe the other requirements of Article G (the restriction must be necessary in a democratic society for the pursuance of this purpose and enforced proportionately in relation to the latter). Such an approach caused the Committee to further define the States’ margin of intervention in the particular case of the police force not only with regard to their right to join trade unions or professional organisations, but also with respect to the nature and prerogatives of such organisations. Thus, a strictly representative (not associative) police organisation (i.e. made up of elected members) cannot be considered as complying with Article 5, since the associative character is “the essential feature of the right protected by this provision of 166 Later on, the Committee found similar interdiction in the case of Armenia (ecsr, Conclusions 2010, 2014) and Azerbaijan (Conclusions 2014, 2018). 167 ecsr, Conclusions ii (1971), iii (1973), iv (1975), vi (1979), vii (1981), United Kingdom. See also, later, ecsr, Conclusions xii-​2 (1992), xiii-​2 (1994), Malta; Conclusions (2004, 2006), Romania. 168 ecsr, Article 5, Statement of Interpretation –​Conclusions ii (1971), Conclusions iii (1973). Regarding the right not to join, see supra ii.3. 169 ecsr, Conclusions ii (1971), iii (1973), United Kingdom; ecsr, Conclusions xii-​2 (1992), Malta; ecsr, Conclusions (2004), Romania; ecsr, Conclusions (2010), Albania. 170 ecsr, UK, Conclusions xx-​3 (2014); European Council of Police Trade Unions (CESP) v. France, complaint No. 101/​2013, Decisions on the merits of 27 January 2016, § 61–​63, 78.

204 Sâmboan the Charter”.171 The associative character is a necessary yet not sufficient condition for the existence of an organisation based on Article 5. Upon resolving the collective complaint of the European Council of Police Trade Unions (cesp) against Portugal,172 the Committee had the opportunity to set out for the first time a minimum set of ‘basic guarantees’ the police staff must benefit from,173 namely: i) the constitution of their own professional associations; ii) the basic trade union prerogatives of these associations; and iii) the protection of their representatives,174 which is assessed by the Committee according to the same standards as in the case of ordinary workers.175 As for the ‘basic trade union prerogatives’, they are: the right to negotiate on pay, pensions and working conditions, the right of access to the working place and the right of assembly and speech.176 If the latter two are analysed by the Committee, as in the case of other workers, through the lens of Article 5 and Article G esc (rev) (Article 31 esc), the former is assessed under Article 6 § 2 of the Charter. The Committee took the opportunity to highlight the organic connection between Article 5 and Article 6 of the Charter, recalling that “regardless of the discretion given to State parties under Article 5 with regard to the police in particular, their right to organise cannot be defined independently of the requirements of Article 6”.177 Returning to the basic guarantees, as regards to the first one –​constitution of police professional associations –​as in the case of all workers, they also involve (apart from positive and negative freedom and the lack of a trade union monopoly):178 the possibility of these associations to affiliate to national and international federations or confederations of trade unions pursuing similar goals;179 reasonable and adversarial proceedings of registration; organisation and internal operation freely determined by their members.180 Nonetheless, as opposed to other workers, the Committee accepted that § 2 of Article 5 may allow national legislation to require that professional police associations: 1) be composed exclusively of police force members;181 2) be authorised to affiliate 1 71 ecsr, Conclusions vi (1979), Italy; see also Conclusions ii (1971), iii (1973), Ireland. 172 ecsr, European Council of Police Trade Unions (CESP) v. Portugal, complaint No. 11/​2001, decision on the merits of 21 May 2002. 173 Ibid., §27. 174 Ibid., §§ 26–​27. 175 Supra, ii.D. 176 ecsr, European Council of Police Trade Unions (CESP) v. Portugal, op.cit, §§ 40–​41. 177 Ibid., § 83. 178 Supra, ii.A., B., C. et E. 179 See also Conclusions ii (1971), iii (1973), 2014, Ireland; Conclusions xiii-​2 (1994), xiv-​1 (1998), Malta. 180 ecsr, European Council of Police Trade Unions (CESP) v. Portugal, op.cit, §§ 28–​39. 181 Ibid., § 35.

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only to police trade union organisations, whether national or international,182 unless such restrictions would result in “disallowing them to effectively negotiate on pay, pensions and working conditions engaged in by these organisations”.183 ‘Tailoring’ police members’ right to organise according to Article G esc (rev)/​ 31 esc demands may permit States Parties to make distinctions according to different categories of police personnel and, under exceptional circumstances, to even supress it in the case of certain such categories. Thus, the prohibition of the Irish highest-​ranking police officers from joining their representative associations was regarded as justified under the provisions of Article G, for two reasons: 1) the aim to prevent situations where the most senior police personnel were unable to attend to their official duties due to their involvement in union activity –​which was seen by the Committee as representing a legitimate objective of public safety and national security; 2) the ‘narrowly tailored’ character of the restriction, considering that, out of the approximately 13,500 members of the Irish police force, only 12 were prohibited from organising themselves according to Article 5.184 Another category of police personnel which may be excluded from the protection offered by Article 5 is that of the military police, as long as the particular nature of their duties may justify them to fall within the scope of § 3 provisions (armed forces). In the next sub-​section, I will show how the Committee understood to strictly interpret the exception provided for in § 3 as well, by rigorously assessing the genuine military nature of the tasks assigned to certain categories of the army or police staff. Such an approach has resulted either in the extension of the sphere of the militaries who may benefit from the protection of Article 5 or, on the other hand, the exclusion of certain categories of police members from the protection of Article 5, by including them on the basis of their actual tasks in the professional category which is the least protected by this article, namely: members of the armed forces.

1 82 Ibid., § 37. 183 Digest of the case-​law of ecsr (2018), p. 96. In European Confederation of Police (EuroCOP) v. Ireland (complaint No. 83/​2012), Ireland didn’t allow police associations to become members of any outside association “with the objective of controlling or influencing their pay, pensions or conditions of service”. The Committee considered that such a restriction “has the factual effect of depriving the representative associations of the most effective means of negotiating the conditions of employment on behalf of their members, it cannot be considered as a proportionate measure for achieving its purposes” (Decision on the admissibility and merits of 2 December 2013, §§ 119 and 121). 184 ecsr, European Confederation of Police (EuroCOP) v. Ireland, complaint No. 83/​2012, decision on the admissibility and merits of 2 December 2013, §§ 78–​79.

206 Sâmboan 2 Members of the Armed Forces If, as regards to the police, the Committee’s approach is similar to that of the ECtHR (strict interpretation of the restriction, preservation of the ‘essence’ of the right,185 limitation of the state’s margin of intervention), the interpretation of § 3 over time followed, instead, a more complicated path reflecting in an eloquent manner the interesting dynamics of the relationship between the Committee and the Strasbourg Court. From the very beginning, the Committee has held that the very wording of the final sentence of Article 5 allows Contracting States to “limit in any way and even to suppress entirely the freedom to organise of the armed forces”.186 Consequently, the systematic control did not concern Articles 5 § 3 and the States were not obliged to justify any prohibitions in this area.187 It was not until 1999 that the Committee had to consider the issue, on the occasion of three collective complaints put forth by the European Federation of Employees in Public Services (eurofedop) against three countries that did not recognise the right to organise for members of the armed forces (France, Italy and Portugal) for non-​compliance with Articles 5 and 6 of the Charter. The claimant asked the Committee to interpret the Charter in an ‘evolutionary’ manner, given that, over time, “at the international level, the tasks assigned to the armed forces have changed”, including mostly peace-​keeping and humanitarian operations. By its decisions on merits adopted on 4 December 2000, the Committee rejected all three complaints, mainly on the grounds that, considering the wording of paragraph 3, the evolutionary interpretation cannot justify a contra legem solution. It also recalled that it was not within its powers to amend the text of Article 5.188 185 In the famous Demir et Baykara vs. Turkey, the Court pointed out that the exceptions provided for in Article 11 of the Convention require a strict interpretation and must be limited to the exercise of the right, not to its essence (Demir et Baykara v. Turkey, Appl. n°34503/​97, Gd. ch., 12 November 2008, § 96); in Tüm Haber Sen et Cinar c. Turquie, the Court applied the principle set out in Demir et Baykara to the special case of the police (Tüm Haber Sen et Cinar c. Turquie, Appl. n° 28602/​95, 21 février 2006, § 35). Unlike the Committee, however, the Court did not clearly delineate the ‘minimum content’ of the right, reserving the possibility of its assessment on a case-​by-​case basis. (Sophie Gambardella, Lectures différenciées de la liberté syndicale des militaires en droit européen, Revue des droits de l’homme n° 9/​2016, § 9, available at: https://​journ​als.open​edit​ion.org/​revdh/​1888). 186 ecsr, Conclusions i (1969). 187 Sophie Gambardella, Lectures différenciées de la liberté syndicale des militaires en droit européen, Revue des droits de l’homme n°9/​2016, § 10. See also, Maurizio Falsone, “Union Freedoms in the Armed Forces: Still a Taboo?”, Industrial Law Journal, Volume 51, Issue 2, June 2022, Pages 375–​402, https://​doi.org/​10.1093/​ind​law/​dwab​003. 188 ecsr, European Federation of Employees in Public Services (EUROFEDOP) v. Italy, complaint No. 4/​1999, decision on merits of 4 December 2000, §§ 27–​28, 32.

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A more nuanced solution, however, was proposed by an intervener, European Trade Union Confederation (etuc). Referring to relevant international instruments (which, unlike the Charter, do not provide for the possibility of excluding in corpore the armed forces from the protection of the right to organise), etuc suggested that the phrase “members of the armed forces” in Article 5 § 3 should be interpreted “in a restrictive and functional way”, such that the military personnel “with more technical tasks” to be accorded the right to organise. In other words, they proposed applying a case-​by-​case assessment algorithm when it comes to § 3 of Article 5 (in accordance, after all, with the rule exceptio est strictissimae interpretationis). In addition, etuc pointed out that, according to the very Committee’s case-​law, the guarantees provided by Article 5 are sine qua non prerequisites for the compliance with Article 6’s requirements, Yet, there is no restriction ratione personae in Article 6 and hence, the right to collective bargaining must in some way be guaranteed to all workers, including members of the armed forces –​which cannot happen as long as their access to the right provided by Article 5 is denied.189 Although the Committee accepted in principle this rationale, it did not deem it necessary to go further in the analysis as long as no concrete submissions in this regard have been made by the claimant itself.190 Nevertheless, the algorithm based on the analysis of the actual nature of the tasks described by the States as ‘military’ was applied by the Committee during systematic checks, but not in relation to members of the armed forces, but to those of the various national professional bodies that, in some States, also perform functions associated with national defence (such as security and intelligence services). In countries such as France, Poland or Romania, these professional bodies were denied the right stipulated by Article 5 of the Charter. The Committee approached these situations differently, depending on their specificity. Thus, both the members of French Gendarmerie and some of the personnel of various Romanian intelligence service agencies had military status, being also members of the armed forces. In both cases, the Committee found that the suppression of the right to organise of these categories was in compliance with the Charter, based on Article 5 § 3, but not before ensuring that there was a genuine connection between their tasks and the objective of national

1 89 Ibidem §§ 15–​17. 190 Ibidem §§ 24, 30, 31 (apart from some insignificant variations, the Committee’s reasoning was similar in all the three cases).

208 Sâmboan defence191 –​which represented a step forward from its previous approach in eurofedop’s collective complaints. In Poland, however, although –​as in the case of the French Gendarmerie –​some of the Internal Security Agency (isa) duties were military in nature while the others were similar to those carried out by national police, its members did not formally belong to the armed forces. Consequently, the Committee refused to analyse their situation in the light of Article 5 § 3 (which refers exclusively to members of the armed forces), but in the light of Article 31 of the Charter.192 From this perspective, it concluded that the interdiction of their right to organise was indeed disproportionate, although, de facto, as compared to the French Gendarmerie or to the military staff of Romanian intelligence services, their situation was similar in terms of certain tasks and of the military discipline to which they were subject to during their exercise.193 In its subsequent assessments of Poland, the Committee made it clear that, even if isa members belonged to the armed forces (and therefore fell under Article 5 § 3), the conditions laid down in Article 31 must be “further satisfied”194 –​which represented a notable difference from the conclusions concerning France and Romania from the previous period, where no additional assessment from the perspective of Article G esc (rev)/​Article 31 esc had been carried out by the Committee. Moreover, later on, as will be seen, the situation of the French Gendarmerie would also be drastically reconsidered by the Committee, by a much more pliable reading of § 3. This new approach was influenced by developments that had since taken place in the Council of Europe. In a first stage, in 2002, the Charter’s uniqueness in the matter of the States’ unlimited leeway in the case of military forces (as compared to other human rights protection instruments) was called into question by the Parliamentary Assembly of the Council of Europe, which adopted the Recommendation No. 1572/​3 September 2002 on the Right to Association for Members of the Professional Staff of the Armed Forces. Given the fact that “military personnel are becoming increasingly ‘regular’ employees”, the text encouraged the recognition of the freedom to organise for members of the armed forces195 and, moreover, requested the Committee of Ministers to

191 ecsr, Conclusions 2000, 2002, 2004, 2006, France ; ecsr, Conclusions 2010, 2014, Romania. 192 corresponding to Article G of the revised Charter (Poland signed the Charter of 1961). 193 ecsr, Conclusions xviii-​1 (2006), xix-​3 (2010), xx-​3 (2014), xxi-​3 (2019), Poland. 194 ecsr, xx-​3 (2014), xxi-​3 (2019), Poland. 195 “Members of the armed forces, as “citizens in uniform”, should enjoy the full right, when the army is not in action, to establish, join and actively participate in specific associations formed to protect their professional interests within the framework of democratic institutions, while

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amend the Charter in order to include military personnel under the scope of Article 5 § 2, on an equal footing with members of the police force.196 At the 849th meeting of the Ministers’ Deputies, by 15 votes to 9, the Committee of Ministers rejected the proposal.197 As Sophie Gambardella pointed out, this vote showed that many Member States were not yet willing to give up their margin of intervention when it came to the guarantees associated with the objective of national security.198 However, seven years later, in 2010, the Committee of Ministers adopted its own recommendation, encouraging States to recognise the military’s freedom to organise.199 Even if the text of the Charter was not amended, the political pressure for a different reading of the Charter was obvious. Yet, the Committee “held its ground” and did not change its perspective on Article 5 § 3. The decisive impact came later on, from two decisions made by the ECtHR on 2 October 2014 concerning two applications against France, in which the Court was called upon to rule –​for the first time in its history –​on the freedom to organise for members of the armed forces,200 including members of the French Gendarmerie201 (which the Committee had already found, in its conclusions, to fall under the provisions of Article 5 § 3 of the Charter). The Court found, in both cases, that Article 11 of the Convention had been infringed. While recognising to the States a certain margin of discretion in case of the police and armed forces given the specific nature of their missions, the Court clearly stated that the military cannot be deprived of the right’s ‘essence’. The inevitable divergent solutions caused by the dichotomy between the text of the Charter and that of the Convention had occurred. The ECtHR’s judgments would significantly influence the Committee’s approach on § 3. The occasion arose in 2013, when the Committee itself was presented with a collective complaint against France regarding the same thorny issue of the French Gendarmerie. The complaint was submitted during the time when the two applications addressed to the ECtHR were still pendente lite, but the Committee adopted its decision on 27 January 2016, therefore more than a year after the Court had delivered its own conclusions in both

performing their service duties”. (Recommendation 1572/​2002, Right to association for members of the professional staff of the armed forces, § 5). 196 Ibid., § 8. 197 Reply cm/​a s (2003) Rec. 1572 final of 18 July 2003. 198 Sophie Gambardella, op. cit., §14. 199 Recommendation cm/​Rec (2010)4 of 24 February 2010, Appendix, §§ 53–​57. 200 ECtHR, 2 October 2014, Adefdromil c. France, No. 32131/​09. 201 ECtHR, 2 October 2014, Matelly c. France, No. 10609/​10.

210 Sâmboan matters. The Committee’s shift in approach –​as compared to its conclusions from 2000–​2004 –​fully reflects the impact of the ECtHR solutions. Essentially, the complainant (European Council of Police Trade Unions –​cesp) asked the Committee to consider not just the mere presence of military duties in the task range of the Gendarmerie personnel –​as it had been the case before –​but also their very small share within its overall activity, the vast majority of tasks effectively performed by the Gendarmerie being of the type traditionally assigned to the police.202 It should be noted that, in the meantime (in 2005, and then in 2015, as a result of the ECtHR decisions), France had significantly changed its legislation and, unlike the situation at the time of the 2004 Conclusions, it had granted members of the armed forces (of which, as pointed out above, the members of Gendarmerie were part of) a number of rights associated with freedom of organisation. Thus, they had acquired the right to establish their professional organisations, apnm s,203 made up exclusively of military personnel. Moreover, according to the French Defence Code, apnm s were forbidden by their statutes to “undermine the fundamental principles of military service or the obligations of members of the armed forces”. This time, the Committee resorted to a different interpretation algorithm as compared to its previous assessments. It did not ignore, as before, the policing activities performed by the Gendarmerie, nor did it take into account their prevalent share. Instead, it considered the trade union rights granted to Gendarmerie members from the perspective of the dual function of this professional body: as police force, under the provisions of Article 5 § 2 and as armed force, in the light of Article 5 § 3 (both in conjunction with Article G).204 In the process of evaluating the protection provided to the Gendarmerie as a police force, the Committee applied the already established algorithm (the existence of ‘the basic guarantees’).205 In this respect, it found that, although the Gendarmerie’s members were granted the freedom to establish, join or 202 European Council of Police Trade Unions (CESP) v. France, complaint No. 101/​2013, Decision on the merits/​27 January 2016, §39. 203 French acronym for ‘National Professional Associations of Military Personnel’. 204 not before assessing the actual millitary nature of some of the Gendarmerie’s tasks, because, as the Committee systematically reminds, “when assessing a national situation under Article 5 of the Charter, the Committee is not bound by domestic qualification or status (…)” (European Council of Police Trade Unions –​CESP v. France, complaint No. 101/​2013, Decision on the merits/​27 January 2016, § 56, European Confederation of Police –​EuroCOP v. Ireland, complaint No. 83/​2012, Decision on the admissibility and merits of 2 December 2013, §§ 76–​77 and more). 205 Supra, iii.3.A.

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not to join professional organisations with some trade union prerogatives, the French law was not in accordance to the Charter, in so far as: a) it denied the access of retired members to the apnm s; b) it imposed excessive restrictions on the status and activity of apnm s in relation to the fundamental principles and obligations of members of the armed force as laid down by the Defence Code; c) it did not provide sufficient protection for the representatives of apnm s or their members against discrimination; e) it excessively limited the freedom of expression of apnm s members, according to the standards of the Defence Code; f) it did not include any provisions for administrative and judicial remedies against the arbitrary refusal of the registration of apnms.206 On the next step, the Committee went on to assess the rights of the members of Gendarmerie as armed forces, through the double lens of Article 5 § 3 and Article G. The absolute novelty was, however, the Committee’s observation that the restrictions allowed by § 3 “may not go as far as to suppress entirely the right to organise (…)”207 –​which made a decisive shift from the previous assessments. To justify this paradigm shift, the Committee resorted to the systemic interpretation of the Charter by reference to other international instruments, required by Article 31 §§ 1 to 3 of the Vienna Convention, as well as the evolutionary interpretation, quoting the decisions of the ECtHR in the cases of Matelly and Adefdromil, the recommendation of the Committee of Ministers in 2010 and the practice of other European States.208 It went even further and examined the other components of the right to organise by applying the same test of the ‘basic guarantees’ as in the case of police members, only this time through a slightly broader filter, considering the “certainly wider” margin of appreciation allowed by paragraph 3 in comparison to paragraph 2.209 As a consequence, even though all those restrictions deemed excessive when assessing the Gendarmerie as police force were considered in line with the requirements of the third paragraph of Article 5 when it comes to the Gendarmerie acting as a military force, one thing became clear: the time when States could simply ban the military’s right to organise under Article 5 § 3 was over.210 206 ecsr, European Council of Police Trade Unions –​CESP v. France, complaint No. 101/​2013, decision on the merits/​27 January 2016, §§ 67–​79. 207 Ibid., § 84. 208 Ibid., §§ 83–​84. 209 Ibid., § 84. 210 The same algorithm was also applied later in two collective complaints against Italy [Confederazione Generale Italiana del Lavoro (CGIL) v. Italy, complaint No. 140/​2016, Decision on the merits/​22 January 2019 and Unione Generale Lavoratori –​Federazione Nazionale Corpo forestale dello Stato (ugl–​c fs) and Sindacato autonomo polizia ambientale forestale (SAPAF) v. Italy, complaint No. 143/​2017, Decision on the merits/​3 July 2019].

212 Sâmboan

Concluding Remarks

Among the fundamental rights related to the employment relation, the trade union rights’ case-​law mostly illustrates the inherent tension between the individual character of human rights and the associative interests of labour211 –​ which in fact is nothing but a ‘projection’ of their own paradoxical nature: an individual freedom with a collective function. As for Article 5, this tension is best reflected in the close-​shops debate212 and, in a more indirect manner and to a lesser extent in terms of impact, in the conflict between the worker/​ employer’s individual freedom to form or to choose a professional organisation that represents his/​her interests, on the one hand, and the collective representativity requirements that are conditioning the capacity of such organisation to fully protect the interests of its members.213 Addressing this balance is one of the main challenges for any judicial body invested to observe the application of trade union rights. As a manifestation of the freedom of association, the freedom to form and to join trade unions comes directly, ratione materiae, under the double scrutiny of the two monitoring bodies of the CoE. The comparative analysis of the case-​law of the ECtHR and the ecsr in regards to the negative freedom of association (which revolves around, basically, to the legal character of the closed-​shops) and their ‘judicial dialogue’ on this sensitive topic reveal a rather paradoxical picture. While not being reluctant to progressively extend its monitoring competences into the realm of social causes by creatively exploiting the indivisibility of human rights and the evolutionary method of interpretation,214 when it comes specifically to work-​related rights the Court seems to rely on the States’ margin of discretion rather than interfering with domestic choices and political sensibilities in matters of employment.215 This self-​restrained strategy was reflected in the follow-​up of Young, James and Webster,216 when the Court’s overly-​cautious approach came into strong contrast with the unhesitant and clear reaction of the Committee. 2 11 For an in-​depth analysis of the topic, see Virginia Mantouvalou, op. cit. 212 Ibidem. 213 Supra, section ii.5.A. 214 Despina Sinou, Les organes du Conseil de l’Europe (Cour européenne des droits de l’homme et Comité européen des droits sociaux), in Carole Nivard (dir.). Justice sociale et juges, Institut Francophone pour la Justice et la Démocratie, 2021, p. 157. 215 Ibid., p. 153; Virginia Mantouvalou, op. cit., p. 4. For more relevant details on the topic, see also the Comment to Article 6 in this volume. 216 Supra, section ii.3.A.

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For the Committee, on the other hand, Young, James and Webster served as an opportunity for a quick and decisive path towards the full recognition of the negative freedom of association. Its choice to resolve the trade union freedom’s dilemma was clear: any attempt to infringe the free will of the individual beneficiaries of Article 5 on grounds of ‘the greater good’ of the unionist cause met with firm opposition on the part of the Committee. Its unwavering standpoint in regards to the closed-​shops, notwithstanding the broad support they enjoyed at the time (form the ilo included)217 and its tenacious endorsement of the principle of trade union pluralism showed clearly that, for the Committee, despite its proven and notorious commitment to the social values, preserving labour solidarity at the expense of individual autonomy may not be an option. It is true that the ECtHR was the first to question the compulsory nature of closed-​shops in Young, James and Webster, but its ‘baby-​steps’ approach in the aftermath of this ruling, as opposed to the boldly ‘libertarian’ stance of the Committee on the same matter, led ironically to a reverse-​role effect, with the Court –​supposedly, the guardian of individual freedoms within the frame of CoE –​reluctantly engaged on the path of full recognition of the negative freedom of association, whilst its ‘social counterpart’, the ecsr, advocates the individual autonomy cause at the expense of trade union solidarity. While the reasons behind the Court’s precaution might be questionable, yet nothing allows one to believe that the Committee would be ready to ‘sacrifice’ the social cause on the altar of the individual free will and consequently to let trade union freedom become a void and useless concept. On the contrary, the entire case-​law attached to Article 5 highlights the Committee’s equal commitment to employ all legitimate means in order to give full effectiveness to the rights protected by this text. Any unavoidable restriction on the purpose of Article 5 brought about by the urge to preserve other conflictual yet legitimate values (such as the principle of free will, contained in the very text of the Article 5, or the public interest values listed by Article G esc (rev)/​Article 31 esc)218 is accompanied by strengthening measures designed to efficiently compensate for the ‘loss’. The exceptions provided by the 2nd and the 3rd paragraphs are not ‘taken for granted’, but read also in conjunction with the additional requirements of Article G/​31 and narrowly construed according to the actual tasks performed by those concerned. Even the individuals who fall within their scope are provided with “basic guarantees” allowing them to ‘make the most’ out of the remaining legitimate protection. In a similar manner, even

2 17 Virginia Mantouvalou, op. cit. 218 Supra, section iii. C.

214 Sâmboan if the representativity requirements are generally accepted, their reasonableness is carefully evaluated based on pragmatic criteria (statistics, social impact in the long run,219 etc.) while those organisations who don’t fulfil the representativity criteria should retain certain “key-​trade union prerogatives”, which are not simple formalities.220 The Committee tried to compensate the potentially negative impact of the prohibition of closed-​shops, inter alia, by maintaining the security-​clauses and by the careful and in-​depth observation of the concrete way in which the States are fulfilling their positive obligations in order to ensure not only de jure, but also de facto the protection of the unionised workers. The Committee goes to great lengths when it comes to analysing how the domestic laws are implemented ‘on the ground’, massively relying on statistics, experts’ view and factual data, and by employing a varied range of monitoring criteria, from verifying the way in which Labour inspectorates apply the legal fines, to requesting statistics on the case-​law in the field of compensations, on the practical application of prison sentences, or asking data regarding the results of legal proceedings and their average duration, the rules regarding the burden of proof, etc.221 Not in the least, Article 5’s case-​law illustrates the fruitful dynamic of the interplay between the Court of Strasbourg and the European Committee of Social Rights, marked by mutual references, mutual influencing, concern for harmonization and willingness to use the other one’s case-​law as a source of inspiration, while maintaining the independence. It is interesting to note that every major change in Article 5’s case law, every paradigm shift, was the consequence of a first ‘boost’ coming from the Court. It took the Committee a long time to risk a permissive reading of the Article 5 § 3 (regarding the members of the military force), that was perceived at the time as a contra legem interpretation,222 yet its long resistance to the external pressures made in that respect was right away removed by the ECtHR’s rulings in Matelly and Adefdromil. Even the Committee’s bold and decisive stance on the full recognition of the negative freedom of association came after a first step taken by the Court in Young, James and Webster. On the other hand, the Court in its turn relied heavily on the Committee’s conclusions in the follow-​up of Young, James and Webster in order to gradually move in the same direction223 and the fact that 2 19 Supra, section ii.E.2, Conclusions xv-​1 (2000), France. 220 Supra, section ii.E.2. 221 Supra, section ii.B. 222 Supra, section iii.C.2. 223 Supra, section iii.C.1. (Sigurdur Sigurjonsson v Iceland and Sørensen and Rasmussen v Denmark).

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nowadays closed-​shop agreements are no longer an option across Europe gives an insightful glimpse on the real ability of the Committee to ‘have a say’ when it comes to the protection of social rights at the European level. It could be argued –​not entirely without reason224 –​that the prohibition of closed-​shops was in fact an eroding case of the trade union movement and that the Committee lost sight and missed the true purpose of the Article 5 in its quest against closed-​shops. In reality, the opposite is true: the true aim of Article 5 is not the trade union movement per se, but to protect and guarantee the individuals’ freedom to promote it. In the midst of ongoing and generally accepted tradition of compulsory unionism, the Committee never lost the understanding that the collective function of the trade union rights must not become an excuse to turn them into obligations and choosing to protect forced ‘solidarity’ over free individual choice hits the very foundation of the entire human rights system –​which is the individual freedom.

224 It is outside the purpose of this paper to assess the impact that the prohibition of closed-​ shops has had on the union movement; suffice to say that the debate on the topic is still open (see, for instance: Thato C. Ramoseme, The impact of closed shop agreements: a critical and comparative analysis of South Africa and Germany, Lap Lambert Academic Publishing, 2012).

article 6

The Right to Bargain Collectively Konstantina Chatzilaou





With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake: 1 to promote joint consultation between workers and employers; 2 to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements; 3 to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; and recognise: 4 the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.

Entitled “the right to bargain collectively”, Article 6 of the esc is one of the provisions of this text dedicated to the so-​called “collective” rights of workers.1 Composed of four paragraphs, this Article actually recognises two distinct rights closely linked to each other. The first right is obviously the right to bargain collectively, the effective exercise of which is ensured by promoting “joint consultation between workers and employers” (Article 6 § 1), “voluntary negotiations” (Article 6 § 2), and “appropriate machinery for conciliation and voluntary arbitration” (Article 6 § 3). The second is the right to take collective action –​including the right to strike –​(Article 6 § 4) which is thus perceived as a particular aspect of the right to bargain collectively. Article 6 is one of the seven Articles of the Charter of 1961 and one of the nine Articles of the revised Charter forming the “hard core” of these texts and appearing among the provisions which must be accepted by the Contracting

1 Other articles recognising collective labour rights are, for example, Article 5 on the right to organise and Article 21 on the right to information and consultation.

© Koninklijke Brill NV,

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Parties.2 For these reasons, the acceptance rate for Article 6 is quite high, with only two States –​Andorra and Turkey –​not having accepted any of its paragraphs.3 Moreover, as strongly emphasised by the ecsr in a recent decision, the rights to bargain collectively and to take collective action are fundamental, as they are essential for the enjoyment of other rights guaranteed by the Charter, such as the right to just conditions of work (Article 2) or the right to a fair remuneration (Article 4).4 However, like all the rights recognised by the Charter, those two rights are not absolute. Under Article 31 of the Charter of 1961 (Article G of the revised Charter), they may be subject to restrictions which are prescribed by law and are necessary, in a democratic society, for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals. Moreover, with particular regard to the right to take collective action, the Appendix to the Charter specifies that “each Party may, insofar as it is concerned, regulate the exercise of the right to strike by law, provided that any further restriction that this might place on the right can be justified under the terms of Article G”. Despite these precautions, the scope of the right to bargain collectively and the right to take collective action has been defined quite broadly. Indeed, since 1969, the ecsr has developed an abundance of case law on the subject, which considerably enriched the content of Article 6. To better understand the importance of the interpretative work of the ecsr, it is necessary to go back to the origins of Article 6 (i), before successively studying the right to collective bargaining (ii) as well as the right to take collective action (iii).

2 As a reminder, Contracting Parties of the Charter of 1961 have the obligation to accept at least 5 of the 7 articles forming the “hard core” of this Charter; likewise, Contracting Parties of the revised Charter are bound to accept at least 7 of the 9 articles forming its “hard core”. 3 Furthermore, Luxembourg and Poland have not accepted article 6 § 4 of the Charter of 1961, and Austria has not accepted the same provision of the revised Charter. 4 Cf. ecsr, Swedish Trade Union Confederation (lo) and Swedish Confederation of Professional Employees (TCO) vs. Sweden, complaint No. 85/​2012, decision on admissibility and the merits of 3 July 2013, § 109. The Committee also refers to the rights which relate to “safe and healthy working conditions (Article 3), […], information and consultation (Article 21), participation in the determination and improvement of the working conditions and working environment (Article 22), protection in cases of termination of employment (Article 24), protection of the workers’ claims in the event of the insolvency of their employer (Article 25), dignity at work (Article 26), workers’ representatives protection in the undertaking and facilities to be accorded to them (Article 28), information and consultation in collective redundancy procedures (Article 29)”.

218 Chatzilaou i

The Origins of Article 6 of the European Social Charter

The Charter of 1961 –​the “social counterpart”, within the Council of Europe, of the echr5 –​was the first European text to explicitly recognise the right to bargain collectively and the right to take collective action. Nevertheless, whoever studies Article 6 quickly realises that its drafters have been very careful in defining and determining the limits of these rights. Reading the “Travaux Préparatoires” of the Charter of 1961,6 it seems that this cautious attitude is mainly due to the reluctance of States to cede their “monopoly” in defining the legal framework of the rights in question. Intimately linked to the legal and social history of each country, these rights have in fact always been subject to various restrictions, the extent and intensity of which differ significantly from one legal system to another. However, in the first drafts of the esc, the provisions relating to the collective rights of workers were far less limited. Elaborated within the Consultative Assembly, these drafts indeed contained far reaching provisions in this regard (A). It is within the Committee of Ministers that Article 6 took its final form (B), which has remained unchanged to date (C). A The Ambitious Drafts of the Consultative Assembly The very first drafts of the esc were drawn up by the Committee on Social Questions, a special body created within the Consultative Assembly of the Council of Europe. Between 1955 and 1956, this Committee prepared no less than four different drafts, all of which contained detailed provisions expressly recognising various collective rights of workers. Undoubtedly, these drafts were much more ambitious than those subsequently prepared within the Committee of Ministers, which ultimately served as the basis for the drafting of the Charter of 1961.7 Firstly, it is worth noting that the right to bargain collectively is not mentioned in any of the drafts of the Consultative Assembly. The initial idea was not to give workers a right to negotiate with employers on their working

5 cm, Doc. 238, Council of Europe Action Program, 6th ordinary session, Strasbourg, 20 May 1954. 6 See the Collected “Travaux Préparatoires” of the European Social Charter, available at: https://​www.coe.int/​en/​web/​europ​ean- ​soc​ial-​char​ter/​prep​arat​ory-​work/​-​/​asse​t_​pu​blis​her /​kV0bB​snto​Niw/​cont​ent/​310th-​sess​ion-​of-​the-​europ​ean-​commit​tee-​of-​soc​ial-​rig​hts?_​101 _​INS​TANC​E_​kV​0bBs​ntoN​iw_​v​iewM​ode=​view/​. See also Hans Wiebringhaus, “La Charte sociale européenne”, Annuaire français de droit international, 1963, pp. 711–​713. 7 See below, under i. B.

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conditions, but rather a right to participate in the management of the company or even to access to ownership of the company. As a result, the very first draft of the esc provides that “every worker in an undertaking shall be entitled to share in the management according to his abilities and in the profits according to the work he contributes”. To ensure the effective exercise of this right, the Governments are further required to take concrete measures in order to establish “joint managing boards enabling the workers to share in the management of the undertaking” and “profit-​sharing systems with the opportunity for the workers of progressing towards co-​ownership”.8 However, deemed too ambitious, this provision became the subject of intense debate and underwent multiple changes. For example, in a subsequent draft presented in October 1955, the reference to co-​ownership is removed, and the States are only required to create “organs of joint management whereby the workers may have a share in the life, management and profits of the undertaking”.9 A few months later, a new draft also removes the reference to profit sharing and significantly reduces the role of workers in the management of the undertaking, as the States are only committing to “ensure that workers have the opportunity to express their views about the general management of the enterprise”.10 Finally, the last draft of the Consultative Assembly –​submitted to the Committee of Ministers on October 26, 1956 –​provides for the right of workers to participate in the management of the company, while considering national differences relating to the implementation of this right. Indeed, under Article D of this draft, the Contracting Parties undertake to “establish or maintain organs of joint management and/​or to take other measures enabling workers to share in the life and general management of the enterprise by which they are employed insofar as these measures are not put into effect by means of collective agreements or in any other way”.11 Unlike the right to bargain collectively, the right to strike is expressly recognised in all drafts of the Consultative Assembly. However, its scope evolved 8 9 10 11

Committee on Social Questions, Preliminary Draft of Social Charter submitted by the Secretariat of the Committee, Strasbourg, 19 April 1955, as /​Soc i (6) 1, Part 2, Section C, Article 4. Committee on Social Questions, Doc. 403, Draft Recommendation containing the Draft European Social Charter, 7th ordinary session, Strasbourg, 26 October 1955, Part 2, Section A, Article 4. Committee on Social Questions, Doc. 488, Draft Recommendations and Reports presented on behalf of the Committee on Social Questions, 8th ordinary session, Strasbourg, 14 April 1956, Part 4, Article 4. Consultative Assembly, Rec. 104 (1956) concerning a European Convention on Social and Economic Rights, 8th ordinary session, Strasbourg, 26 Oct 1956, Part 1, Article D.

220 Chatzilaou considerably over time. The very first draft recognises the right of “everyone […] to cease work in conjunction with his fellow workers”, but only allows collective actions pursuing purely defensive claims as strikes are only permitted when the right to “fair, stable and satisfactory conditions of work” is not respected.12 A few months later, the restrictions concerning strike claims are withdrawn, but this right is now closely linked to conciliation and arbitration procedures: according to the draft presented in October 1955, while “every worker has the right to strike”, the Contracting Parties undertake to introduce all the necessary measures to regulate the exercise of this right and, in particular, to “establish a conciliation procedure and put at the disposal of the parties a procedure of arbitration to prevent labour disputes or find a rapid solution to them”.13 Finally, considering that it does not fall within the competence of the Consultative Assembly to rule for or against voluntary or compulsory arbitration,14 the last draft submitted to the Committee of Ministers contains a much less restrictive provision: under Article E of this draft, “the High Contracting Parties recognise the right to strike [and] undertake to encourage the use of agreed machinery for the settlement of labour disputes”.15 Evidently, the final draft of the Consultative Assembly, submitted to the Committee of Ministers on October 26, 1956, contains far-​reaching provisions. Furthermore, the inclusion of the right to strike in this draft constitutes a significant advance since, until then, the only international covenant expressly referring to this right was the Inter-​American Charter of Social Guarantees, signed in 1948 in Bogota.16 However, the members of the Committee of Ministers were much more hesitant to include collective labour rights in the esc.

12 13

14 15 16

Committee on Social Questions, Preliminary Draft of Social Charter submitted by the Secretariat of the Committee, cit., Article 6. Committee on Social Questions, Doc. 403, cit., Article 6. This draft was followed by another, less restrictive, draft, according to which “the High Contracting Parties recognise the right to strike and will maintain necessary procedures for the solution of labour disputes” (see Committee on Social Questions, Doc. 488, cit., Article 6). Committee on General Affairs, Draft Report examined by the Committee on General Affairs relating to a Preliminary Draft Recommendation, submitted by M. Toncic, Strasbourg, 6 August 1956, as /​ ag (8) 16. Consultative Assembly, Rec. 104, cit., Article E. Under Article 27 of this Charter, “workers have the right to strike. The law shall regulate the conditions and exercise of that right”.

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The Reluctant Position of the Committee of Ministers B While the Committee on Social Questions of the Consultative Assembly was preparing the above-​mentioned esc drafts, the Social Committee of the Committee of Ministers was also drawing up its own drafts. The last of these drafts was examined in the framework of a Tripartite Conference, convened by the International Labour Organisation at the request of the Council of Europe, with the participation of workers’ and employers’ representatives. Although this procedure seemed quite innovative, it is important to note that the form and the content of the Charter of 1961 were in reality determined by the Committee of Ministers alone.17 Moreover, it is clear that the drafts prepared by the Committee of Ministers were much less ambitious than those drawn up within the Consultative Assembly. The very first draft of the Committee of Ministers contains absolutely no provision relating to collective rights of workers.18 It is not until April 1957 that these rights make their first appearance in a draft of the Social Committee, in particular within an Article entitled “rights connected with industrial relations” and mentioning the right to organise, the right to bargain collectively and the right to strike.19 A few months later, a new draft places the right to organise and the right to bargain collectively in two separate Articles, and the provision relating to the right to bargain collectively gradually begins to take its final form.20 Finally, in a draft presented in February 1958, Article 6 is worded as follows: “With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake: 1. to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements; 2. to promote the establishment and use of appropriate machinery for conciliation or arbitration for the settlement of labour disputes; 3. to promote

17 18 19 20

Tonia Novitz, International and European Protection of the Right to Strike, Oxford-​ New York, Oxford University Press, 2003, p. 141. Social Committee, Working Paper submitted by the United Kingdom Delegation, 3rd Session, Strasbourg, 27 April 1956, ec /​Soc (56) 7. Social Committee, Report of the Working Party appointed to draft articles for a European Social Charter presented by M. Delperée, Appendix iv: Draft Articles of a European Social Charter, 5th session, Strasbourg, 18 April 1957, ce /​Soc (57) 5, Article iv. cm, Report of the Social Committee submitting the draft European Social Charter, B. Draft text of the European Social Charter, Strasbourg, 20 December 1957, cm (57) 176, Part 2, Article vi.

222 Chatzilaou joint consultation of workers and employers; and recognise: 4. the right of workers and employers to collective action in cases of conflicts of interest”.21 It is this last draft that was examined in December 1958 by the Tripartite Conference convened by the International Labour Organisation at the request of the Council of Europe. While the paragraphs relating to negotiation, conciliation/​arbitration and joint consultation underwent only minimal changes,22 the paragraph on the right to strike became the subject of heated debate. Indeed, the workers’ representatives were firmly opposed to this provision. Considering that a Charter intended to apply in free European countries must recognise the right to take collective action without any limitations, they suggested that Article 6 § 4 be worded as follows: “the Contracting Parties recognise workers’ right to strike”.23 However, this suggestion raised several objections from employers’ and government’ representatives. For example, the employers’ representatives claimed that this provision should also refer to employers’ collective actions and include the right to lock-​out.24 Some government representatives added that, in their countries, strikes were prohibited in case of conflict of rights, and that the right to take collective action was exercised only in case of conflict of interest.25 Furthermore, numerous representatives of employers and governments stressed the need for collective action to take place in accordance with legal provisions and collective agreements.26 Given all these reactions, the workers’ representatives were eventually brought to reconsider their position, and Article 6 § 4 was reformulated considering the different views expressed within the Tripartite Conference. Finally, Article 6 of the esc is worded as follows: “With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake: 1. to promote joint consultation between workers and employers; 2. to promote, where necessary and appropriate, machinery for voluntary negotiation between employers or employers’ organisations and 21 22

23 24 25 26

cm, Text of the European Social Charter amended by the Social Committee at its seventh session, Strasbourg, 24 February 1958, cm (58) 27, Part 2, Article 6. More specifically, the participants in the Tripartite Conference opted for a change in the order of these provisions, the paragraph relating to joint consultation between employers and workers being placed first. In addition, they decided to specify that the arbitration procedure must be voluntary. ilo, Tripartite Conference convened by the International Labour Organisation at the request of the Council of Europe, Record of Proceedings (Strasbourg, 1 –​12 December 1958), Geneva, ilo, 1959, p. 481. Ibid., p. 482. Ibid., p. 481. Ibid.

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workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements; 3. to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; and recognise: 4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into”.27 C The Current Form of Article 6 Composed of four short paragraphs, Article 6 of the Charter of 1961 remained unchanged in the revised Charter. Although entitled “the right to bargain collectively”, it actually recognises two distinct fundamental social rights which are closely linked to each other: the right to bargain collectively and the right to take collective action. The right to bargain collectively is obviously the first right recognised in Article 6. In order to ensure its effective exercise, the Contracting Parties undertake to establish an appropriate institutional framework –​in other words, to implement a series of measures listed in the four paragraphs of Article 6. Firstly, States are required to promote “joint consultation between employers and workers”, which must take place at various levels (national, sectoral and company level).28 However, since the revised Charter introduced a new Article 21 on the right to information and consultation at company level,29 if a State has accepted both Article 6 § 1 and Article 21, the respect of this right is examined solely from the point of view of Article 21.30 Secondly, under Article 6 § 2, the Contracting Parties must establish voluntary negotiation procedures between social partners. It should be noted that these procedures are intended to enable the conclusion of collective agreements, which are thus perceived as a specific source for determining working conditions. Thirdly, paragraph 3 provides that States promote the establishment and use of “appropriate machinery for conciliation and voluntary arbitration”. This machinery is made available to social partners in the event of a labour dispute that cannot be settled through voluntary negotiation procedures. Finally, with a view to

27 28 29 30

With particular regard to the right to strike, it is specified in an Annex that every State may regulate the exercise of this right by law, provided that any further restriction is justified under Article 31. On this point, see below, under ii. A. More specifically, this provision was introduced by the Additional Protocol of May 5, 1988, which was subsequently incorporated into the revised Charter. ecsr, Conclusions 2004, Ireland.

224 Chatzilaou ensuring the effective exercise of the right to bargain collectively, Article 6 § 4 provides that States must recognise an additional right: the “right of workers and employers to collective action […] including the right to strike”. It is in the very last paragraph of Article 6 where the second right recognised by this text appears, namely the right to take collective action. Although the position of this right within Article 6 could lead someone to think that it is perceived as a “last remedy” which can only be used once the procedures of consultation, negotiation and conciliation/​arbitration have been exhausted, the ecsr does not share this position.31 In any case, the right to take collective action is not recognised autonomously, but as a particular aspect of the right to bargain collectively. It is worth noting that this vision is not the same as that adopted in the framework of other European and international legal orders. For example, although the right to strike is not recognised in any international labour convention, the supervisory bodies of the ilo have attached it to Convention No. 87 on freedom of association and protection of the right to organise.32 Similarly, although the echr does not contain any provision relating to the right to strike, the ECtHR has attached it to Article 11, which recognises the freedom of assembly and association, including the right to form and to join trade unions.33 Finally, in the EU legal order, the right to strike is either recognised independently (see, for example, Article 13 of the Community Charter of the Fundamental Social Rights of Workers), or in connection with the right to bargain collectively (see, for instance, Article 28 of the Charter of Fundamental Rights of the EU). Structured in this way, Article 6 of the esc places a positive obligation on Contracting Parties34 to ensure respect for the right to bargain collectively and the right to take collective action. To better understand this obligation, it is worth comparing the wording of Article 6 with that of Article 5 on the right to organise. Indeed, while Article 6 provides that the Contracting Parties are required to ensure the effective exercise of the right to bargain collectively and to recognise the right to take collective action, Article 5 provides that, with a view to guaranteeing freedom of association, “the Parties undertake 31 32

33 34

See below, under iii. For a more detailed presentation of the early positions of the ilo supervisory bodies on this issue, see Konstantina Chatzilaou, L’action collective des travailleurs et les libertés économiques. Essai sur une rencontre dans les ordres juridiques nationaux et supranationaux, Nanterre, lgdj-​Lextenso, Institut universitaire Varenne, 2016, pp. 304 ff. ECtHR, 21 April 2009, Enerji Yapi Yol Sen vs. Turkey, No. 68959/​01. The question of positive obligations has been widely studied with regard to the ECHR. V., among an abundant literature, Colombine Madelaine, La technique des obligations positives en droit de la Convention européenne des droits de l’homme, Paris, Dalloz, 2014.

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that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom”. Therefore, whereas under Article 5 States have a negative obligation to refrain from any interference in the exercise of freedom of association, Article 6 obliges them to take positive action in order to ensure respect for the rights to bargain collectively and to take collective action. This obligation has been gradually clarified by the ecsr. ii

The Right to Bargain Collectively

The first right expressly recognised in Article 6 of the esc is of course the right to bargain collectively. Without giving a precise definition of this right, Article 6 requires the Contracting Parties to take a series of positive measures aimed at ensuring its “effective exercise”. However, the role of public authorities is not limited to the creation of an institutional framework conducive to the exercise of the right to bargain collectively. According to the ecsr, States also need to ensure a certain balance between employers and workers (or their representatives). This quest for balance is clearly reflected in the first three measures to be taken by the Contracting Parties: the promotion of joint consultation (A), the institution of voluntary negotiations (B), and the establishment of a machinery for conciliation and voluntary arbitration (C). A Joint Consultation Under Article 6 § 1 of the esc, with a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties “undertake to promote joint consultation between workers and employers”. It is worth noting that when the consultation process does not function properly, the ecsr requires States to take concrete steps to encourage it, in particular by setting up permanent mechanisms in which social partners are equally represented.35 However, according to the Committee, if the consultation process works in a satisfactory manner, the Contracting Parties should not intervene.36 Although Article 6 § 1 appears fairly clear, many States seemed, until the mid-​1970s, to not fully understand the meaning of this provision. Indeed, as one author pointed out, this provision is quite puzzling for three main reasons: it “does not indicate who needs to consult or be consulted, nor about 35 36

ecsr, Centrale Générale des services publics (CGSP) vs. Belgium, complaint No. 25/​2004, decision on the merits of 9 May 2005, § 41. See for example ecsr, Conclusions 2014, Russian Federation.

226 Chatzilaou what, nor at what level”.37 In a Statement of interpretation issued in 1975, the Committee explained that Article 6 § 1 implies that the Contracting Parties “assist in bringing together employers and workers or their organisations on terms of equality with a view to consultation on all questions of mutual interest at every level”.38 It is therefore clear that joint consultations are distinct from voluntary negotiations, mainly because they do not reach to the conclusion of collective agreements defining the terms and conditions of employment.39 Over time, the ecsr made some further efforts in defining the notion of joint consultations, notably by ruling on the trade unions that can participate in the consultations, the joint nature and the material scope of the consultations, as well as the levels at which consultations should take place. Firstly, as regards the trade unions which can participate in the consultations, the Committee considers that the Contracting Parties have the possibility to introduce a requirement of representativeness. Nevertheless, this requirement must not excessively limit the trade unions’ participation in the consultation procedure, and the criteria of representativeness have to be “prescribed by law, be objective and reasonable and subject to judicial review which offers appropriate protection against arbitrary refusal”.40 Secondly, as far as the “joint” nature of the consultation is concerned, employers and workers (or their respective organisations) must be put on an equal footing.41 In this regard, the ecsr ruled that national systems in which the consultation takes place in the presence of a government representative –​often in the capacity of chairman –​are deemed compatible with Article 6 § 1 of the esc, provided that social partners “have an equal say in the matter”.42 Thirdly, the scope of Article 6 § 1 is defined in a quite broad manner. In fact, according to the ecsr, the mere establishment of consultation bodies is not enough and national authorities must also ensure that the bodies in question operate on a permanent basis.43 Furthermore, the consultations have to cover all matters of concern to workers and employers –​including those outside the

37 38 39 40 41 42 43

Filip Dorssemont, “Article 6. The Right to Bargain Collectively. A Matrix for Industrial Relations”, in Niklas Bruun, Klaus Lörcher, Isabelle Schömann, Stefan Clauwaert (ed.), The European Social Charter and the Employment Relation, Hart Publishing, 2016, p. 255. ecsr, Conclusions iv (1975), Statement of Interpretation on Article 6 § 1. Filip Dorssemont, cit., pp. 254–​255. ecsr, Conclusions 2006, Albania. ecsr, Conclusions iv (1975), Statement of Interpretation on Article 6 § 1. ecsr, Conclusions v (1977), Statement of Interpretation on Article 6 § 1. ecsr, Conclusions xvi-​2 (2003), Hungary.

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scope of collective bargaining44 –​such as “productivity, efficiency, industrial health, safety and welfare, and other occupational issues (working conditions, vocational training, etc.), economic problems and social matters (social insurance, social welfare, etc.)”.45 With particular regard to civil servants working in the public sector, the Committee considers that Article 6 § 1 is respected only if consultation mechanisms are established for the creation and implementation of the statute of these workers.46 Finally, the consultations must take place at all levels –​national, sectoral and company level.47 In this respect, the Committee made two important clarifications. On the one hand, consultation at national level does not imply the intervention of social partners in the legislative process, as this process falls under the sovereign prerogatives of the State. Thus, Article 6 § 1 does not require that trade unions are consulted on the amendments tabled during parliamentary debates.48 On the other hand, consultation at company level falls within the scope of both Article 6 § 1 and Article 21. As a result, for those countries which have accepted both provisions, the promotion of joint consultations at this level is examined solely from the perspective of Article 21.49 B Voluntary Negotiations In addition to joint consultations between workers and employers, States undertake to promote, “where necessary and appropriate, machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements”. As in the case of joint consultations, the role of the State in the implementation of Article 6 § 2 is crucial. According to the ecsr, if the spontaneous development of negotiations is not sufficient, the Contracting Parties are required to take positive measures to promote it as well as guarantee that “each side is prepared to bargain collectively with the other”.50 In this regard, the Committee pays particular attention to the development of collective bargaining systems in practice, by regularly requesting statistical data on the number of collective agreements concluded at each level and the categories of workers covered by them.51 However, when 44 45 46 47 48 49 50 51

ecsr, Conclusions 2010, Ukraine. See lastly ecsr, Conclusions 2018, Azerbaijan. ecsr, Conclusions iii (1973), Denmark, Federal Republic of Germany, Norway, Sweden. Ibid. ecsr, Centrale Générale des services publics (CGSP) vs. Belgium, cit., § 40. ecsr, Conclusions 2004, Ireland. ecsr, Conclusions i (1969), Statement of Interpretation on Article 6 § 2. Ibid.

228 Chatzilaou the collective bargaining process is working in a satisfactory manner, States should not intervene.52 State intervention is in fact considered as a “very serious measure”, which can only be justified by a reason expressly set out in Article G of the Charter, namely the respect of the rights and freedoms of others or the protection of public interest, national security, public health or morals.53 Being at the heart of Article 6, voluntary negotiations have been the subject of fairly rich case law, relating to the parties to collective bargaining (1) and the purpose thereof (2). In addition, the ecsr has significantly limited the possibility for States to restrict the exercise of the right to bargain collectively (3). 1 The Negotiating Parties With regard to the negotiating parties, Article 6 § 2 of the esc leaves little room for ambiguity: negotiations must be conducted between employers or employers’ organisations, on the one hand, and workers’ organisations, on the other hand. By “workers’ organisations”, the drafters of the Charter undoubtedly refer to trade unions, which traditionally constitute the main agents of collective bargaining. Nevertheless, as in the case of joint consultations, the ecsr ruled that national laws may grant the right to negotiate only to representative trade unions, provided that certain general conditions are met.54 Indeed, the requirement of representativeness must not excessively limit the possibility for trade unions to participate in such negotiations, and the criteria of representativeness must “be objective and reasonable and subject to judicial review which offers appropriate protection against arbitrary refusal”.55 For example, a national legislation recognising the right to negotiate only to trade unions representing at least 33% of the employees concerned by the negotiation was found to be contrary to Article 6 § 2.56 However, Article 6 § 2 leaves open an important question: do trade unions have a “monopoly” in the field of negotiation or can they be replaced by other bargaining agents? In this regard, the Committee considers that collective bargaining should be understood as “any bargaining between one or more employers and a body of employees (whether ‘de jure’ or ‘de facto’) aimed at solving a problem of common interest, whatever its nature may be”.57 It therefore seems that extending the right to bargain collectively to other agents –​such 52 53 54 55 56 57

Ibid. See lastly, ecsr, Conclusions xxi-​3 (2018), Croatia. ecsr, Conclusions 2006, Albania. ecsr, Conclusions xviii-​1 (2006), Luxembourg. ecsr, Conclusions xix-​3 (2010), fyrom. ecsr, Conclusions iv (1975), Germany.

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as the elected representatives of employees –​is not in itself contrary to Article 6 § 2. Nevertheless, by expressly referring to the position of the Committee of Experts on the Application of Conventions and Recommendations of the ilo, the ecsr specifies that this should not result in a circumvention of trade unions.58 Thus, when trade unions are present and meet the criteria of representativeness, they should be the only bargaining agents. Furthermore, trade unions which do not meet these criteria should also be able to negotiate with employers for the benefit of their members.59 Another question –​even more delicate –​is that of agreements concluded directly with the workers without any prior negotiation with their representatives. The ecsr will have the opportunity to rule on this question in the near future, in the context of a collective complaint challenging a French provision which authorises employers to submit to their workers draft agreements, considered to be valid company agreements when approved by a two-​thirds majority of company’s workers.60 Although this provision is limited to very small businesses without trade union representatives, it is quite likely to be found to be contrary to Article 6 § 2. Indeed, this Article requires that negotiations are conducted with “workers’ organisations” and, above all, that actual negotiations take place before the conclusion of a collective agreement. 2 The Purpose of the Negotiations Although Article 6 § 2 of the esc recognises the right to negotiate “with a view to the regulation of terms and conditions of employment by means of collective agreements”, the ecsr has always adopted a broader conception of the purpose of collective bargaining. According to the Committee, “it does not (…) seem possible to accept that there should be no other type of collective bargaining in labour relations than that aimed at concluding a collective agreement. There are many circumstances which, apart from any collective agreement, call for ‘collective bargaining’, such as when dismissals have been announced or are contemplated by a firm and a group of employees seeks to prevent them or to serve the re-​engagement of those dismissed’’.61 Thus, collective bargaining can relate to any “problem of common interest, whatever its nature may be”,62 including decisions falling within the 58 In this sense, cf. ecsr, Conclusions 2014, Armenia. 59 In this sense, cf. ecsr, Conclusions 2018, Armenia. 60 See ecsr, Confédération française démocratique du travail (CFDT) v. France, complaint No. 189/​2020, decision on admissibility of 6 July 2020. 61 ecsr, Conclusions iv (1975), Germany. 62 Ibid.

230 Chatzilaou employer’s organisational power, such as business closure, restructuring or delocalisation.63 Furthermore, according to the ecsr, it is the trade unions –​and, more broadly, the social partners –​who must determine the content of collective bargaining. Therefore, States “should not interfere in the freedom of trade unions to decide themselves which industrial relationships they wish to regulate in collective agreements and which legitimate methods should be used in their effort to promote and defend the interest of the workers concerned”.64 More generally, the Contracting Parties must ensure that trade unions are able to “strive for the improvement of existing living and working conditions of workers” and that the scope of the right to bargain collectively is not limited to the “attainment of minimum [working] conditions”.65 With particular regard to this last point, the Committee has recently had to rule on national legislations allowing the conclusion of company-​level collective agreements which contain less favourable provisions than those included in higher-​level norms (sectoral or national collective agreements, legislation), or establishing a “primacy” of company-​level collective agreements over higher-​ level norms. According to the Committee, this type of legislation –​adopted in many European countries in the aftermath of the economic crisis in the early 2010s –​does not “overly infringe” the right to bargain collectively “as it still allows trade unions to decide which industrial relationships they wish to regulate in collective agreements and at what level these agreements should be made”.66 However, it seems that company-​level collective agreements should not result in the application of less favourable working conditions to workers than those provided for in national-​level agreements.67 3 Possible Restrictions Like all rights recognised by the esc, the right to bargain collectively may, under Article G, be subject to restrictions which are prescribed by law and are necessary, in a democratic society, to guarantee the respect of the rights and freedoms of others or to protect public interest, national security, public health, or morals. However, the ecsr clarified that, unlike Article 5 on the right to organise –​which authorises the Contracting Parties to limit this right for the members of the police or the armed forces –​, “nothing in the wording of Article 63 64 65 66 67

In this sense, cf. Tonia Novitz, op. cit., p. 288. ecsr, LO and TCO vs. Sweden, § 111. Ibid., § 120. ecsr, Conclusions xx-​3 (2014), Spain. ecsr, Conclusions xxi-​3 (2018), Spain.

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6 […] entitles States Parties to impose restrictions on the right to bargain collectively of particular categories of workers”.68 Any restriction going beyond the conditions laid down in Article G is therefore closely monitored by the ecsr. In particular, the Committee had to rule on national legislations prohibiting the right to bargaining collectively to public officials and the self-​employed. Concerning, first of all, public officials (including members of the police and the armed forces), the ecsr stresses that nothing in the wording of Article 6 authorises States to impose restrictions on the right to bargain collectively that would specifically target the workers in question.69 Therefore, States are required to set up procedures enabling the participation of public agents in the determination of their status and working conditions, through their representatives.70 Furthermore, these procedures must enable them to have a real impact on the negotiations and on the content of the agreements concluded. In consequence, “a mere hearing” of the representatives of these workers by public authorities “on a predetermined outcome” does not satisfy the requirements of Article 6 § 2.71 Secondly, with regard to the self-​employed, the ecsr takes a fairly similar position: nothing in the wording of Article 6 authorises States to deny the self-​employed the right to bargain collectively.72 To justify its position, the Committee refers to the rapid changes in the world of work as well as the multiplication of contractual relations that do not fall under the “classic” definition of the employment contract, which inevitably lead to “an increasing number of workers falling outside the definition of a dependent employee”.73 In addition, according to the ecsr, the main aim of the right to bargain collectively is to establish a balance of power between labour engagers and workers, 68 69

70 71 72 73

ecsr, Irish Congress of Trade Unions (ICTU) vs. Ireland, complaint No. 123/​2016, decision on the merits of 12 Sept. 2018, § 36. In this sense, see ecsr, European Confederation of Police (EuroCOP) vs. Ireland, complaint No. 83/​2012, decision on admissibility and the merits of 2 Dec. 2013, § 159; European Council of Police Trade Unions (CESP) vs. France, complaint No. 101/​2013, decision on the merits of 17 Jan. 17 2016, § 118; European Organisation of Military Associations (EUROMIL) vs. Ireland, complaint No. 112/​2014, decision on the merits of 12 Sept. 2017, § 47; Confederazione Generale Italiana del Lavoro (CGIL) vs. Italy, complaint No. 140/​2016, decision on the merits of 22 Jan. 2019, § 105; Unione Generale Lavoratori –​Federazione Nazionale Corpo forestale dello Stato (ugl-​c fs) and Sindacato autonomo polizia ambientale forestale (SAPAF) vs. Italy, complaint No. 143/​2017, decision on the merits of 3 July 2019, § 116. ecsr, Conclusions iii (1973), Germany. ecsr, Unione Generale Lavoratori –​Federazione Nazionale Corpo forestale dello Stato (ugl-​c fs) and Sindacato autonomo polizia ambientale forestale (SAPAF) vs. Italy, cit., § 118. ecsr, Irish Congress of Trade Unions (ICTU) vs. Ireland, cit., § 36. Ibid., § 37.

232 Chatzilaou regardless of the latter’s status.74 Thus, without going so far as to elaborate “a general definition of how self-​employed workers are covered by Article 6 § 2”, the Committee considers that an “outright ban on collective bargaining of all self-​employed workers” would be excessive, “as it would run counter to the object and purpose of [Article 6 § 2]”.75 Conciliation and Voluntary Arbitration C According to Article 6 § 3 of the esc, the third obligation of States is “to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes”. Once again, the role of the State in the implementation of this provision is crucial: indeed, in the absence of conciliation and voluntary arbitration procedures, the Contracting Parties are required to put in place such procedures through legislation. However, if these procedures are already put in place by collective agreements and are sufficiently effective, public authorities do not need to intervene.76 Led to interpret Article 6 § 3, the ecsr defined the concepts of conciliation and arbitration and clarified their main differences. Firstly, while conciliation is an amicable settlement of a labour dispute, arbitration is defined as an out-​ of-​court process of having one or more outside persons chosen by the parties to resolve a labour dispute. Secondly, although the outcome of the conciliation procedure is not binding, the arbitral decision has a legally binding effect.77 That being said, the ecsr has ruled that the use of arbitration procedures must always be voluntary. Any form of compulsory arbitration is therefore deemed to be contrary to Article 6 § 3, “whether domestic law allows one of the parties to defer the dispute to arbitration without the consent of the other party or allows the Government or any other authority to defer the dispute to arbitration without the consent of one party or both”.78 Two exceptions are nonetheless admitted to this general rule: compulsory arbitration is possible in the event of an agreement between the parties concerned79 or when the conditions laid down in Article G are met (i.e. when compulsory arbitration is prescribed by law and is necessary, in a democratic society, to achieve one of the specific aims listed in this Article).80 74 75 76 77 78 79 80

Ibid., § 38. Ibid., § 40. ecsr, Conclusions i (1969), Statement of Interpretation on Article 6 § 3. ecsr, Conclusions 2014, Moldova. ecsr, Conclusions 2006, Portugal. ecsr, Conclusions 2014, Moldova. ecsr, Conclusions 2006, Portugal.

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Finally, as far as the purpose of conciliation and arbitration is concerned, Article 6 § 3 indicates that these procedures must facilitate the settlement of “labour disputes”. As further explained by the ecsr, those kinds of disputes only concern “conflicts of interest”, namely conflicts which can “arise at the time of the negotiation and conclusion of collective agreements”.81 As a result, Article 6 § 3 does not concern neither “conflicts of rights” –​namely conflicts related to the validity or the interpretation of a collective agreement –​nor political conflicts.82 iii

The Right to Take Collective Action

The second right recognised by Article 6 of the esc is the right to take collective action. Indeed, with a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties are also required to recognise “the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into”. Although the esc is one of the first supranational texts to expressly recognise the right to take collective action, it is interesting to note that Article 6 § 4 is drafted in a rather prudent manner. Firstly, this right may only be exercised in “cases of conflicts of interest” and is subject to “obligations that might arise out of collective agreements previously entered into”Furthermore, in the Appendix to the Charter, it is clearly stressed that each State may regulate the right to strike through legislation, provided that any other possible restriction on this right can be justified under the terms of Article G. Secondly, the right to take collective action is not recognised autonomously, but simply as a particular aspect of the right to bargain collectively. What is more, this right is mentioned at the very end of Article 6, after joint consultation, voluntary negotiations and conciliation/​arbitration procedures. Despite these precautions, the right to take collective action has been the subject of a particularly rich case law, as the ecsr has ruled on almost every aspect of this right, thus creating a complete and coherent set of standards. Once again, the Committee’s positions are guided by a permanent concern to establish a balance of power between employers and workers. This concern is clearly reflected in the content of the right to take collective action (A), in the

81 82

ecsr, Conclusions v (1977), Italy. ecsr, Conclusions 2010, Georgia.

234 Chatzilaou legal framework thereof (B) as well as in the relation between this right and the economic freedoms of employers (C). The Content of the Right to Take Collective Action A The content of the right to take collective action includes the forms of collective actions considered as lawful (1), the persons empowered to initiate such actions (2), the claims that can be pursued (3) and, finally, the effects of a collective action (4). 1 The lawful forms of collective action Under Article 6 § 4, workers are granted the right to take “collective action, including the right to strike”. Therefore, this provision protects not only “strikes” stricto sensu –​understood as the complete cessation of work –​but also any other form of collective action, such as “work-​to-​rule” strikes,83 “go-​ slow” strikes,84 picketing, boycott, or even the occupation of the workplace. That being said, the ecsr seems rather reluctant to criticise national systems restricting certain forms of collective actions or protecting only strikes stricto sensu. For example, although in the Conclusions delivered in 2000 the Committee asked Belgium to specify “whether other forms of collective action, such as boycotts, bans on overtime work, go slows, picketing, etc. [were] authorised”, the 2002 Conclusions did not address this issue.85 Similarly, while noting that certain forms of collective actions (such as “work-​to-​rule” and “go-​slow”) were, under Portuguese law, excluded from the legal scope of the right to strike, the Committee made no particular comment on this point.86 In summary, even though the ecsr seems to have a broad vision of the forms of collective action that must be protected by the Contracting Parties, it has not yet taken a firm position on this matter. In addition, according to the decision LO and TCO vs. Sweden of July 3, 2013, certain “excessive or abusive forms of collective action” –​such as, for example, extended blockades –​may be limited by law, as long as they “put at risk the maintenance of public order” or “unduly limit the rights and freedoms of others”.87 The ecsr therefore seems to draw a line between peaceful and non-​ peaceful actions, which involve violence and intimidation, or restrict the rights 83 84 85 86 87

I.e. the collective action consisting in respecting to the letter all the instructions given by the employer, thus reducing the efficiency of the work. Namely the collective action consisting in a voluntary reduction in the pace of work. ecsr, Conclusions xv-​1 (2000), Belgium and ecsr, Conclusions xvi-​1 (2002), Belgium. ecsr, Conclusions xvi-​1 (2002), Portugal. ecsr, LO and TCO vs. Sweden, cit., § 119.

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and freedoms of others.88 Among these rights and freedoms, the decision LO and TCO vs. Sweden mentions “the right of co-​workers to work” or “the right of employers to engage in a gainful occupation”.89 However, the significance of this last statement should not be overestimated. Given the general orientation of the LO and TCO vs. Sweden decision and the previous case law of the ecsr,90 restrictions based on the right of employers to conduct their business may only be accepted in rather extreme cases, such as, for example, when a specific form of collective action prevents the employer from carrying out his activity in an absolute and irreversible manner. On the contrary, the mere fact that a specific form of collective action causes greater economic damage than a “classic” strike does not have an influence on the appreciation of the ecsr. For example, the Committee considered that national judgments prohibiting picketing by defining it as an “interference with […] the right to conduct business” were not in conformity with Article 6 § 4.91 Finally, Article 6 § 4 recognises the right to take collective action not only to workers but also to employers. Therefore, in addition to workers’ collective actions, this Article also protects the so-​called “lock-​out”, namely the temporary closing of the company in response to a collective action of workers. According to the ecsr, the protection of lock-​outs is justified by the fact that they are the main –​if not the only –​form of action enabling employers to defend their interests.92 However, the Committee clearly states that lock-​outs do not enjoy the same level of protection as collective actions of workers. Thus, a State cannot be criticised for not having recognised a right to lock-​out or for having limited the exercise of lock-​outs only in cases of “force majeure” or complete disruption of business.93 Once again, the Committee considers the imbalance of power between employers and workers, in order to grant the collective actions of the latter a higher status.

88

89 90 91 92 93

See the analysis of Filip Dorssemont, cit., p. 269, on the decision ecsr, European Trade Union Confederation (etuc)/​Centrale Générale des Syndicats Libéraux de Belgique (cgslb)/​Confédération des Syndicats chrétiens de Belgique (csc)/​Fédération Générale du Travail de Belgique (FGTB) vs. Belgium, complaint No. 59/​2009, decision on the merits of 13 September 2011. ecsr, LO and TCO vs. Sweden, cit., § 119. See below under iii. C. ecsr, Conclusions xvi-​1 (2002), Belgium. ecsr, Conclusions i (1969), Statement of Interpretation on Article 6 § 4. ecsr, Conclusions viii (1984), Statement of Interpretation on Article 6 § 4.

236 Chatzilaou 2 The Persons Empowered to Initiate a Collective Action Although Article 6 § 4 recognises the right to take collective action to “workers”, it gives no indication of the persons empowered to initiate such an action. Questioned on this specific issue, the ecsr proceeded to a literal interpretation of this provision, making a distinction between the “subjects” of the right to take collective action and the persons who can initiate such actions. More specifically, according to the Committee, while Article 6 § 4 refers “to those who are entitled to take part in collective action”, it leaves States Parties the option “of restricting the right to call strikes to trade unions”. As a result, national systems who choose this option are considered in accordance with Article 6 § 4.94 This position seems to be justified by the great differences between national systems: indeed, while in certain systems the right to strike is perceived as an individual right, other systems adopt a so-​called “organic” conception, and attribute this right only to trade unions or other organised groups representing workers. In addition, as one author pointed out, with this statement the Committee does not seem to adhere to the “organic” conception, but “rather to accept the individual doctrine and protect the right of all groups of individuals to call a strike”.95 That being said, we cannot help but point out, along with Filip Dorssemont, the inherent contradiction of the position of the ecsr on this issue: indeed, while the Committee clearly attributes the right to take collective action to individual workers, it allows national systems to subordinate the actual exercise of this right to a decision made by organised groups.96 In any case, the option given to States Parties to attribute the right to initiate a collective action to trade unions has its limits. In fact, when a State chooses this option, the creation of a trade union must not be “subject to excessive formalities that would impede the rapid decisions that strike action sometimes requires”,97 and the exercise of this right must not be limited to representative or the most representative trade unions.98 In addition, States must ensure that workers who are not members of a trade union fully enjoy the right to take collective action.99 In summary, while respecting the characteristics of national systems adopting an “organic” conception of the right to take collective action,

94 95 96 97 98 99

ecsr, Conclusions 2004, Sweden. Erika Kovacs, “The Right to Strike in the European Social Charter”, Comparative Labour Law and Policy Journal, 2005, p. 458. Filip Dorssemont, cit., p. 271. ecsr, Conclusions 2004, Sweden. ecsr, Conclusions xv-​1 (2000), France. In this sense, see ecsr, Conclusions xvi-​1 (2002), Portugal.

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the Committee ensures that this conception does not hinder the effectiveness of collective action. 3 The Claims of a Collective Action Article 6 § 4 of the esc recognises the right to take collective action only “in cases of conflicts of interest”, such as, for example, in the event of conflicts relating to the employment conditions or the application of collective agreements. Therefore, according to the ecsr, this provision does not protect collective actions relating to “conflicts of rights” (namely conflicts concerning the existence, the validity or the interpretation of a collective agreement) or to political conflicts.100 With particular regard to the latter, the Committee seems to exclude not only purely political collective actions, but also protest actions against the economic and social policy of national governments. For example, although in the conclusions delivered in 2004 the ecsr asked for information on the situation of some Finnish civil servants, who were “prevented from taking protest action against the Government’s economic or social policy or against the budget policy of municipalities aiming at savings in personnel costs”,101 the following conclusions did not address this question.102 In this respect, the Committee’s position seems stricter than that of the ilo supervisory bodies, which perceive strikes not only as a means of promoting and defending the professional interests of workers, but also as a means of expression against State decisions in terms of employment, social protection or standards of living.103 Furthermore, insofar as Article 6 § 4 recognises the right to take collective action as a particular aspect of the right to bargain collectively, collective action claims should logically concern questions which can be discussed in the framework of collective bargaining. Nevertheless, it is worth noting that the ecsr has adopted a broad interpretation of the concept of collective bargaining and, therefore, of the claims which can be pursued by collective action. Thus, national laws which allow collective actions only to “obtain given minimum working standards” are not compatible with Article 6 § 4.104 Likewise, the Committee has repeatedly ruled that national laws “permitting the right

1 00 101 102 103

Ibid. ecsr, Conclusions xvii-​1 (2004), Finland. ecsr, Conclusions 2006, Finland. ilo, Freedom of association and collective bargaining. General survey of the reports on the Freedom of Association and the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1948 (No. 98), Geneva, 1994, pp. 72–​73. 104 ecsr, LO and TCO vs. Sweden, § 120.

238 Chatzilaou to strike only when aimed at the conclusion of a collective agreement unduly restrict [this right]”.105 In short, collective action claims may concern any question relating to the employment conditions of workers, or even to decisions falling within the power of organisation of the employer, such as, for example, restructuring or delocalisation.106 Furthermore, the Committee is particularly sensitive to the difficulties encountered by workers in asserting their claims within complex organisational structures, such as groups or networks of companies. States should therefore authorise the so-​called secondary collective actions, namely actions brought against another employer with a view to exerting indirect pressure on the employer involved in the conflict.107 More generally, the Committee affirms that secondary strikes are essential since “outsourcing, working in networked organisations, the formation of inter-​organisational partnerships, particularly in public services, but also more use of agency staff, secondments and joint partnership working” clearly show that “employees nowadays often do not work solely for and under the direction of a single clearly defined employer”.108 4 The Effects of Collective Action The effectiveness of the right to take collective action would be seriously compromised if employers could dismiss strikers or impose other kinds of disciplinary sanctions. For this reason, the ecsr prohibits dismissals pronounced during a lawful strike, as well as any deduction of wages that goes beyond the duration of the strike. In general, the ecsr considers that the participation of workers in a collective action “should not be considered a violation of [their] contractual obligations entailing a breach of their employment contract”.109 This applies to all strikers, as those who are not members of a trade union must enjoy the same level of protection as trade union members.110 Thus, participation in a collective action cannot result in the termination of the employment contract,111 and any dismissal pronounced for this reason must be prohibited, whether it takes

105 For example, this is the case in German law. v. lastly ecsr, Conclusions xxi-​3 (2018), Germany. 106 In this sense cf. Tonia Novitz, cit., p. 288. 107 See, for example, ecsr, Conclusions xx-​3 (2014), United Kingdom. 108 Ibid. 109 See lastly ecsr, Conclusions xx-​3 (2014), Iceland. 110 ecsr, Conclusions xviii-​1 (2006), Denmark. 111 ecsr, Conclusions i (1969), Statement of Interpretation on Article 6 § 4.

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place before, during, or at the end of the collective action.112 Furthermore, the Committee specifies that workers dismissed because of their participation in a collective action have the right to be reinstated within the company, and if the worker concerned “does not wish to be reinstated or the court decides that the continuation of the employment relationship would no longer be possible”, he/​she shall receive compensation.113 These general rules are however subject to two exceptions. On the one hand, although the Committee considers that participation in a collective action must not lead to the termination of the employment contract, such a termination may be in conformity with Article 6 § 4 if, in practice, “strikers are fully reinstated when the strike has ended and their previously acquired entitlements (for example concerning pensions, holidays and seniority) are not affected”.114 On the other hand, although the dismissal of strikers is in principle contrary to Article 6 § 4, this does not seem to be the case when the collective action is of an unlawful nature. Nevertheless, in this particular case, the dismissal must only take place after the employer has informed the workers of the illegal nature of the collective action and asked them to return to work.115 Finally, the ecsr considers that wage deductions linked to a collective action “cannot be greater than the lost wages”, namely the wages that “would be attributable to the duration of [the] participation in the strike”.116 For example, the Committee has repeatedly declared the non-​compliance with Article 6 § 4 of a French rule, allowing the withholding of one thirtieth of the monthly salary of civil servants and public officials for strikes of less than one day, regardless of their effective duration.117 B Possible Restrictions of the Right to Take Collective Action Like all rights recognised by the esc, the right to take collective action is not absolute; it may be subject to limitations and restrictions, provided that every limitation complies with the conditions laid down in Article 31 of the Charter of 1961 (Article G of the revised Charter).118 In addition, as indicated in the Appendix to the Charter, “each Party may, insofar as it is concerned, regulate 112 For example, a national legislation prohibiting the dismissal of striking workers only for a period of 12 weeks has been found contrary to Article 6 § 4 of the Charter. v. lastly ecsr, Conclusions xxi-​3 (2018), United Kingdom. 113 ecsr, Conclusions 2010, Slovenia. 114 See for example ecsr, Conclusions xx-​3 (2014), Iceland. 115 ecsr, Conclusions 2010, Albania. 116 See, for example, ecsr, Conclusions 2014, Serbia. 117 See lastly, ecsr, Conclusions 2010, France. 118 See, for example, ecsr, Conclusions xvii-​1 (2004), Netherlands.

240 Chatzilaou the exercise of the right to strike by law, provided that any further restriction that this might place on the right can be justified under the terms of Article G”. Indeed, the right to take collective action is subject to various limitations, the extent and intensity of which differ significantly from one national system to another. Schematically, national laws often require compliance with procedural requirements prior to the outbreak of collective action (1) or proceed to an outright prohibition of this right for certain categories of workers (2). All these restrictions are of course closely monitored by the ecsr. 1 Compliance with Procedural Requirements First of all, certain national laws require compliance with mediation or conciliation procedures before the initiation of a collective action. According to the ecsr, those systems are, in principle, compatible with Article 6 § 4, since they “do not impose a real restriction on the right to collective action [but] simply regulate the exercise thereof”.119 That being said, the Committee clearly states that the mediation/​conciliation procedures must be of a reasonable duration, as long mediation/​conciliation periods are considered as affecting the “deterrent effect of the strike”.120 For instance, a national system prohibiting the undertaking of collective action before the exhaustion of a 30-​day mediation procedure was found to be incompatible with the Charter.121 Second, many national systems require workers and/​or trade unions to observe a notice period or to organise a preliminary poll before the outbreak of a collective action. Once again, the ecsr considers that these systems are, in principle, compatible with Article 6 § 4, while specifying the cases in which such procedural requirements unduly infringe the right to take collective action. Concerning, on the one hand, strike notices, the Committee insists that their duration must be reasonable.122 Furthermore, the obligation to inform the employer, prior to the outbreak of a collective action, of the exact duration of the strike constitutes “an excessive restriction to the right to strike going beyond the limits of Article G of the Revised Charter and is therefore not in conformity with Article 6 § 4 of the Revised Charter”.123 Concerning, on the other hand, strike ballots, the ecsr considers that the voting system, the quorum and the majority required must not excessively limit the exercise of the right to take collective action.124 In this regard, it has also been ruled 1 19 120 121 122 123 124

ecsr, Conclusions xiv-​1 (1998), Cyprus. ecsr, Conclusions 2014, Bosnia and Herzegovina. ecsr, Conclusions xx-​3 (2014), Czech Republic. ecsr, Conclusions 2006, Estonia. ecsr, Conclusions 2006, Italy. ecsr, Conclusions 2016, Georgia.

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that “the requirement to give notice to an employer of a ballot on industrial action, in addition to the strike notice that must be issued before taking action, is excessive”.125 Finally, many national systems provide for a so-​called “peace obligation”. In these systems, collective agreements are in fact perceived as “social peace treaties”, during which the undertaking of collective actions is prohibited. Once again, according to the ecsr, such systems are, in principle, in conformity with Article 6 § 4.126 Two conditions are nevertheless clearly laid down. Firstly, the peace obligation must “reflect with certainty the will of the social partners”.127 In particular, this can be the case when this obligation is expressly set out in a collective agreement or, more generally, when it is based on “a historical commitment by the social partners which is evidence of their absolute intent”.128 Secondly, the undertaking of a collective action must always be possible for matters outside the scope of the collective agreement, such as, for example, in order to protest against “a collective redundancy or dismissal of a trade union representative”.129 2 Workers Excluded from the Right to Strike First of all, according to the ecsr, national systems prohibiting public servants from exercising the right to strike may be compatible with the Charter.130 However, this restriction must always be limited to certain categories of public servants –​such as to members of the police and the armed forces, judges or senior public servants131 –​as well as to those “whose duties and functions, given their nature or level of responsibility, are directly affecting the rights of others, national security or public interest”.132 On the contrary, a general ban on the right to strike for all public servants does not comply with the requirements of the Charter. As the Committee firmly stated, “there is no reasonable relationship of proportionality between prohibiting all civil servants from

1 25 126 127 128 129 130 131 132

See lastly, ecsr, Conclusions xxi-​3 (2018), United Kingdom. See for example ecsr, Conclusions xviii-​1 (2006), Malta. Ibid. ecsr, Conclusions xvii-​1 (2004), Germany. ecsr, Conclusions 2004, Norway. ecsr, Conclusions i (1969), Statement of Interpretation on Article 6 § 4. Ibid. ecsr, European Trade Union Confederation (etuc), Confederation of Independent Trade Unions in Bulgaria (citub), Confederation of Labour “Podkrepa” (CL “Podkrepa”) v. Bulgaria, complaint No. 32/​2005, decision on the merits of 16 October 2006, § 45.

242 Chatzilaou exercising the right to strike, irrespective of their duties and functions, and the legitimate aims pursued”.133 Second, in the view of the ecsr, the Contracting Parties have a wide margin of appreciation regarding collective actions conducted by members of the police. Thus, a ban on the right to strike for these workers may be in conformity with Article 6 § 4.134 However, in light of Article G, it is necessary that this ban is prescribed by law, justified by a legitimate aim, and proportionate to the objective pursued.135 Indeed, insofar as national legislations have evolved considerably in the direction of extending the right to strike to members of the police, the ecsr’s view is becoming more and more strict towards legislations forbidding the right to strike to these workers.136 Finally, the ecsr considers that national legislations prohibiting the right to strike in essential services are, in principle, compatible with the Charter. In this regard, it is however worth noting that the very notion of “essential services” has not yet been clearly defined.137 In any case, according to the Committee, as essential services are necessary “in order to protect the rights and freedoms of others or […] the public interest, national security, public health, or morals”,138 the prohibition of strikes within these services is presumed to pursue a legitimate aim.139 However, an outright ban on strikes in an entire sector –​in particular when this sector is broadly defined, for example “energy” or “health” –​does not constitute a proportionate measure. Other alternative measures should thus be taken, such as the establishment of a minimum service in the sectors concerned.140 The Relationship between the Right to Take Collective Action and the Economic Freedoms of Employers According to Article 31 of the Charter of 1961 (Article G of the revised Charter), States are able to limit or even prohibit the exercise of the right to take collective action in order to protect, among other things, the “rights and freedoms of others”. Therefore, the ecsr had to rule on numerous national laws restricting

C.

1 33 Ibid., § 46. 134 See for example ecsr, European Confederation of Police (EuroCOP) vs. Ireland, cit., § 202. 135 Ibid., § 204. 136 Ibid., § 211. 137 Stein evju, “The Right to Collective Action under the European Social Charter”, European Labour Law Journal, 2011, p. 212. 138 ecsr, Conclusions 2018, Bosnia and Herzegovina. 139 ecsr, Conclusions i (1969), Statement of Interpretation on Article 6 § 4. 140 ecsr, Conclusions xvii-​1 (2004), Czech Republic.

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the right to take collective action on the grounds that it interfered with the rights and freedoms of employers or caused significant economic damage. Generally speaking, the ecsr is not opposed to the concept of proportionality; indeed, the application of the proportionality principle is not, in itself, considered as affecting the right to take collective action.141 In addition, according to the Committee, “the financial loss suffered by the employer” may be taken into consideration by national legislators and judges in order to assess the proportionality of a collective action.142 However, a careful examination of the relevant ecsr’s conclusions and decisions reveals that it is very hesitant to accept restrictions on the right to take collective action on the sole basis of protecting the rights and freedoms of employers (1). What is more, the Committee clearly states that the economic freedoms guaranteed by European Union law cannot bring disproportionate restrictions to the exercise of this right (2). 1

Prohibition of Collective Actions on the Sole Basis of the Rights and Freedoms of Employers In general, the ecsr is opposed to restrictions placed on the right to take collective action solely on the basis of the rights and freedoms of employers. Thus, the Contracting Parties are not allowed to prohibit the exercise of this right simply because it infringes the rights and freedoms of employers or causes economic damage to the company. The examples of Belgian and Norwegian legal systems –​carefully examined by the ecsr over the years –​provide a clear illustration of this view. Since the 1990s, a fairly rich litigation has emerged before Belgian courts, on the basis of an urgent unilateral procedure provided for by the Judicial Code.143 As part of this procedure, several first-​degree civil courts have issued numerous injunctions prohibiting strike pickets as a preventive measure and, in some

141 See, for example, ecsr, Conclusions xvii-​1 (2004), Netherlands. The concept of proportionality is widely used in national laws relating to collective action. The meaning of this concept and the legal techniques used to assess the “proportional” or “disproportional” nature of a collective action differ significantly from one national system to another. For an overview, cf. Viviane Vannes, Le droit de grève. Concilier le droit de grève et les autres droits fondamentaux : recours au principe de proportionnalité ?, Bruxelles, Larcier, 2015. 142 Ibid. 143 For more information on this jurisprudence, cf. Filip Dorssemont, “Le droit d’avoir recours à l’action collective et la Charte sociale européenne révisée : en revisitant les enseignements du Professeur Nikitas Aliprantis”, in Christian Mestre, Corinne Sachs-​Durand, Michel Storck (ed.), Le travail humain au carrefour du droit et de la sociologie. Hommage au Professeur Nikitas Aliprantis, Strasbourg, Presses universitaires de Strasbourg, 2014, pp. 648–​656.

244 Chatzilaou rare cases, the judges have even gone so far as to ban strike actions themselves. Regarding strike pickets, they have been basically described as “forcible methods”,144 or as an “interference […] with the right to work and the right to conduct business”145 hindering the “operation of businesses”.146 With regard to strike actions as such, they have been usually qualified as abusive, with judges essentially using the concept of proportionality. As a result, when the possible harmful consequences of a strike were considered to be disproportionate or when a strike could have taken place at another time, less detrimental to the employer’s economic activities, Belgian judges prohibited its outbreak.147 In its conclusions, the ecsr strongly criticised these judicial practices, as they “restrict the exercise of the right to strike [and] go beyond the restrictions accepted in Article 31 of the Charter”.148 More specifically, according to the Committee, the use by Belgian judges “of the concept of abuse of right or the proportionality criterion” is leading them to act “as judges of strikes’ appropriateness, and consequently of their lawfulness”,149 thus substituting their “assessment for those of the strikers”.150 It is therefore obvious that the Committee is particularly hostile to the prohibition of the exercise of the right to take collective action on the sole basis of the rights and freedoms of employers. Under Norwegian law, it is possible to prohibit the initiation of a collective action, or even to interrupt its course, when it is likely to have serious consequences for the community. This prohibition or interruption can be carried out either by means of a provisional ordinance, taken by the Government and approved by the Parliament, or by means of a special law, proposed by the Government and voted by the Parliament. In both instances, the case must be brought before a permanent arbitration body, the National Wages Board. In examining the national reports tabled by Norway, the ecsr was led to rule on a series of cases relating to collective actions undertaken in the petroleum sector.151 In all these cases, the exercise of the right to collective action was 1 44 ecsr, Conclusions xvii-​1 (2004), Belgium. 145 ecsr, Conclusions xvi-​1 (2002), Belgium. 146 ecsr, European Trade Union Confederation (etuc)/​Centrale Générale des Syndicats Libéraux de Belgique (cgslb)/​Confédération des Syndicats chrétiens de Belgique (csc)/​ Fédération Générale du Travail de Belgique (FGTB) vs. Belgium, complaint No. 59/​2009, decision on the merits of 13 September 2011, §§ 31 and 33. 147 ecsr, Conclusions xvi-​1 (2002), Belgium. 148 Ibid. 149 Ibid. 150 ecsr, Conclusions xvii-​1 (2004), Belgium. 151 ecsr, Conclusions xiv-​1 (1998), Norway;Conclusions xv-​1 (2000), Norway; Conclusions xvi-​1 (2002), Norway; Conclusions 2006, Norway; Conclusions 2014, Norway.

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prohibited on the grounds of the financial losses suffered by the employers in the petroleum sector and, more generally, of the repercussions of the collective actions on the budget and the international reputation of Norway. In all of its conclusions, the Committee admits that the collective actions in question have undoubtedly led to harmful consequences, namely disruptions in production and financial losses. However, these reasons are deemed insufficient to justify the prohibition or interruption of the collective actions. For example, while admitting “that the implications of the industrial action [were] serious in terms of loss of revenue”, the Committee doubts “that the situation was so serious it fell within Article 31 of the Charter, i.e. that it was necessary for the protection of the public interest”.152 Similarly, in another case, the ecsr considers that “the requirements of Article 31 were not fulfilled and that the recourse to compulsory arbitration was not in conformity with the Charter”.153 In summary, each time that public authorities intervene in the exercise of the right to collective action on the basis of mainly or exclusively economic considerations, the restrictions are deemed to be incompatible with Article 6 § 4 of the esc. 2

Restriction of Collective Action on the Basis of Economic Freedoms Guaranteed by EU Law In the LO and TCO vs. Sweden case,154 the ecsr was led to rule on the very delicate question of the compatibility with Article 6 § 4 of the esc of a Swedish law adopted in application of the notorious Laval judgment of the cjeu. Rendered in December 2007, the Laval judgment and its “twin”, the Viking judgment, are very well-​known and have provoked countless debates and concerns.155 As a reminder, in these two judgments, while admitting the fundamental character of the right to take collective action, the cjeu treated this right as a mere obstacle to the freedom to provide services (Laval) and the freedom of 1 52 ecsr, Conclusions xiv-​1 (1998), Norway. 153 ecsr, Conclusions xv-​1 (2000), Norway. 154 ecsr, LO and TCO vs. Sweden. On this decision, see among an abundant literature, Marco Rocca, “A Clash of Kings. The European Committee of Social Rights on the ‘Lex Laval’ … And on the EU Framework for Posting of Workers”, European Journal of Social Law, 2013, pp. 217–​232; Konstantina Chatzilaou, “La réponse du Comité européen des droits sociaux aux arrêts Viking et Laval”, Revue de droit du travail, 2014, pp. 160–​167. 155 cjec, gc, 11 December 2007, International Transport Workers’ Federation and Finnish Seamen’s Union vs. Viking Line ABP and OÜ Viking Line Eesti, aff. C-​438/​05; cjec, gc, 18 December 2007, Laval un Partneri Ltd vs. Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avdelning 1, Byggettan and Svenska Elektrikerförbundet, aff. C-​341/​05.

246 Chatzilaou establishment (Viking), and submitted it to a particularly demanding justification and proportionality test. With specific regard to the Laval case, the cjeu even ruled that the collective actions were not justified, because the Swedish trade unions had demanded the application to foreign posted workers of working conditions going beyond minimum provisions laid down in the European Directive 96/​71/​e c. The decision LO and TCO vs. Sweden relates to the follow-​up given, in Swedish law, to the Laval judgment. Indeed, in 2010, a new Swedish law –​also known as “Lex Laval” –​came into force, limiting the exercise of the right to take collective action against foreign service providers posting workers to Sweden. More specifically, under this law, such collective actions were only allowed when they aimed at obtaining the conclusion of a collective agreement relating to the subjects exhaustively defined by Directive 96/​71/​e c. Furthermore, such collective actions were prohibited if the foreign service provider was able to prove that the working conditions of posted workers were as favourable as the minimum conditions laid down in the Swedish central sectoral collective agreement. In its LO and TCO vs. Sweden decision, the ecsr begins by reminding the fundamental differences between the esc and the EU law in the field of ​social rights.156 In this regard, the Committee points out that “the Charter and EU law are two different legal systems” and that “the principles, rules and obligations constituting EU law do not necessarily coincide with the system of values, principles and rights embodied in the Charter”.157 Moreover, the ecsr openly rejects the existence of a presumption of conformity of EU law to the provisions of the Charter, thereby explicitly distancing itself from the famous Bosphorus judgment of the ECtHR.158 According to the ecsr, “neither the current status of social rights in the EU legal order nor the substance of EU legislation and the process by which it is generated would justify a general presumption of conformity of legal acts and rules of the EU with the European Social Charter”. Besides, the Committee notes that “the EU has not taken steps 156 In this sense, see already ecsr, Confédération générale du travail (CGT) vs. France, complaint No. 55/​2009, decision on the merits of 23 June 2010, §§ 35 ff.; Confédération française de l’encadrement (CFE-​CGC) vs. France, complaint No. 56/​2009, decision on the merits of 23 June 2010, §§ 33 ff. 157 ecsr, LO and TCO vs. Sweden, § 74. 158 Ibid. According to the Bosphorus judgment (ECtHR, 30 June 2005, Bosphorus Hava Yollari Turizm ve Ticaret Anomim Şirketi v. Ireland, No. 45036/​98, §§ 155–​156), as long as the EU grants to fundamental rights a protection at least equivalent to that provided by the Convention, States fulfilling obligations resulting from their accession to the EU are presumed to comply with the requirements of the echr.

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to accede to the European Social Charter at the same time as the European Convention on Human Rights”.159 Next, by completely reversing the analysis followed by the cjeu in its Viking and Laval judgments, the ecsr focuses on the status of the right to take collective action within the esc legal system. Indeed –​as stated by the Committee in three different occasions within the LO and TCO vs. Sweden decision –​this right is a fundamental right.160 Recognised by numerous national Constitutions and by a great range of European and international texts,161 it is essential to ensure the enjoyment of other rights and to guarantee “the autonomy of trade unions”.162 Of course, the ecsr admits that the right to take collective action is not absolute and that it may be subject to restrictions which are prescribed by law, pursue a legitimate aim and are necessary, in a democratic society, to achieve this aim.163 However, given its fundamental nature, this right cannot be subject to restrictions which would deprive it of its essence and prevent unions from striving “for the improvement of existing living and working conditions of workers”.164 As a result, national laws which limit the exercise of this right of obtaining minimum working conditions are not in conformity with Article 6 § 4, as they “infringe the fundamental right of workers and trade unions to engage in collective action for the protection of economic and social interests of the workers”.165 The restrictions introduced by “Lex Laval” are therefore considered to be disproportionate, since they prevent the initiation of collective actions aimed at improving the employment conditions of posted workers.166 Finally –​and more generally –​the ecsr sets out its own conception of “balancing” the fundamental right to take collective action with the economic freedoms guaranteed by EU law. In this respect, it begins by admitting the importance of the freedom to provide services for the legal order of the Union. Indeed, “free cross-​border movement of services and the promotion of the freedom […] to provide services in the territory of other States […] constitute important and valuable economic freedoms within the framework of 1 59 Ibid. 160 Ibid., §§ 120, 121 and 125. 161 Ibid., § 110. The Committee refers to Article 8 of the International Covenant on Economic, Social and Cultural Rights of the United Nations, to the relevant provisions of ilo Conventions Nos. 87, 98 and 154 and to the Charter of Fundamental Rights of the European Union. 162 Ibid., §§ 109 and 120. 163 Ibid., § 118. 164 Ibid., § 120. 165 Ibid. 166 Ibid., § 123.

248 Chatzilaou EU law”.167 However, in the Committee’s view, this does not in any way imply a primacy of these freedoms over the right to take collective action: economic freedoms cannot be treated as having “a greater a priori value than core labour rights, including the right to make use of collective action”.168 Consequently, economic freedoms must not be interpreted in such a way as to impose disproportionate restrictions on the right to take collective action. On the contrary, their interpretation must consider “the fundamental importance of the right of trade unions and their members to strive both for the protection and the improvement of the living and working conditions of workers, and also to seek equal treatment of workers regardless of nationality or any other ground”.169 The reasoning followed by the ecsr in its LO and TCO c. Sweden decision seems entirely justified. Indeed, everyone knows that collective action aims not only at attaining minimum standards but also at improving the employment conditions of workers. More generally, by stressing that economic freedoms must be interpreted considering the fundamental importance of the right to take collective action, the ecsr reminds the initial conviction of the drafters of the esc, according to which “economic policy [is] not […] an end in itself, but […] a means of achieving social objectives”.170 In doing so, the Committee offers an alternative analysis to that followed by the cjeu and shows the way towards a true balancing of economic freedoms with the right to take collective action.

Concluding Remarks

Article 6 on the right to bargain collectively is without doubt one of the most interesting provisions of the esc. Indeed, although during the travaux préparatoires of the esc the exact scope of this Article was very uncertain, the drafters of the Charter finally managed to create a provision protecting all aspects of the right to bargain collectively and expressly guaranteeing –​for the first time in European level –​the right to take collective action. In addition, given the large scope and detailed wording of Article 6, it comes as no surprise that it has greatly inspired other European provisions recognising these two rights, and especially Articles 12 et 13 of the Community Charter of the Fundamental 1 67 168 169 170

Ibid., § 122. Ibid. Ibid., § 121. See Memorandum presented by the General Secretariat of the Council of Europe on the role of the Council in the social field, Strasbourg, 16 April 1953, sg (53) 1, p. 10.

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Social Rights of Workers, as well as Article 28 of the Charter of Fundamental Rights of the European Union. The already wide scope of Article 6 has been further enriched by the ecsr. Indeed, since the mid-​1960’s, the Committee has played a major role in interpreting all aspects of this provision and detailing the specific obligations placed upon States Parties. More fundamentally, by analysing the countless conclusions and decisions on Article 6, one thing is certain: throughout the years, the ecsr has made a significant effort in protecting the capacity of workers to participate, through their organisations, in the determination of their working and employment conditions and to defend, through collective actions, their interests. The Committee’s efforts towards this direction are particularly clear in the constructive interpretation of Article 6 § 4 of the Charter on the right to take collective actions, which, as we know, has been the subject of serious restrictions based on economic freedoms of employers in the notorious Laval and Viking judgments of the cjeu.

article 7

The Right of Children and Young Persons to Protection Anna Drabarz, Łucja Kobroń-​Gąsiorowska



With a view to ensuring the effective exercise of the right of children and young persons to protection, the Parties undertake: 1. to provide that the minimum age of admission to employment shall be 15 years, subject to exceptions for children employed in prescribed light work without harm to their health, morals or education; 2. to provide that the minimum age of admission to employment shall be 18 years with respect to prescribed occupations regarded as dangerous or unhealthy; 3. to provide that persons who are still subject to compulsory education shall not be employed in such work as would deprive them of the full benefit of their education; 4. to provide that the working hours of persons under 18 years of age shall be limited in accordance with the needs of their development, and particularly with their need for vocational training; 5. to recognise the right of young workers and apprentices to a fair wage or other appropriate allowances; 6. to provide that the time spent by young persons in vocational training during the normal working hours, with the consent of the employer, shall be treated as forming part of the working day; 7. to provide that employed persons of under 18 years of age shall be entitled to a minimum of four weeks’ annual holiday with pay; 8. to provide that persons under 18 years of age shall not be employed in night work, with the exception of certain occupations provided for by national laws or regulations; 9. to provide that persons under 18 years of age employed in occupations prescribed by national laws or regulations shall be subject to regular medical control; 10. to ensure special protection against physical and moral dangers to which children and young persons are exposed, and particularly against those resulting directly or indirectly from their work.

© Koninklijke Brill NV,

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From the outset it is worth noting that international documents on children’s rights do not challenge the thesis that children are rights holders and not only objects of protection.1 Children and adolescents are subjects of all human rights, considering separate regulations due to their specificity. In accordance with international law, i.e., the United Nations Convention on the Rights of the Child (crc) establishes in Article 1 that “a child means any human being under the age of eighteen”. This is the basic definition today as well as in Europe.2 Much international jurisprudence, including European jurisprudence, concerns court proceedings initiated by parents or other legal representatives of children due to the limited ability of children to undertake legal actions that affect them themselves. This commentary aims to illustrate the basic building blocks of the protection of children and young people’s rights in the Charter system and how the law considers the specific interests and needs of children with the relationship of rights and obligations according to parents and guardians of children. In such cases, the approach of the United Nations (UN) Convention on the Rights of the Child (crc) is that parental responsibilities must be performed in the child’s best interests as their overriding concern and in a manner consistent with the child’s developing abilities.3 The Charter is one of the most detailed international documents devoting so much attention to protecting children and young people at the workplace and outside of it. Children and adolescents are a unique and vulnerable group in society, psychophysically and socially. In particular, children and adolescents are at risk of a specific type of social exclusion, for example, lack of access to basic services such as education and healthcare; cultural discrimination against girls, disabled children, ethnic minorities or sick children, even in developed countries.4 For example, Article 3 § 3 of the Treaty on European Union5 establishes the objective for the EU 1 During the covid-​19 pandemic, the European Committee of Social Rights drew attention to the issue of the increasing number of children of stateless persons in Europe who have limited access to the fundamental right of education; See: Social rights of children, families and migrants in danger across Europe: latest annual conclusions from the European Committee of Social Rights, https://​www.coe.int/​en/​web/​europ​ean-​soc​ial-​char​ter/​-​/​soc​ial-​rig​hts-​of-​child​ ren-​famil​ies-​and-​migra​nts-​in-​dan​ger-​acr​oss-​eur​ope-​lat​est-​ann​ual-​conc​lusi​ons-​from-​the -​europ​ean-​commit​tee-​of-​soc​ial-​rig​hts. 2 UN, General Assembly (1989), Convention on the Rights of the Child, 20 November 1989. 3 See more: Handbook on European law relating to the rights of the child, https://​fra.eur​opa.eu /​sites/​defa​ult/​files/​fra_​uplo​ads/​fra-​ecthr-​2015-​handb​ook-​europ​ean-​law-​rig​hts-​of-​the-​child​ _​en.pdf, p. 17. 4 Ibid. 5 EU (2007), Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, oj 2007 C 306, pp. 1–​271.

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to promote protection of the rights of the child. The Charter of Fundamental Rights of the EU guarantees the protection of the rights of the child by the EU institutions and by EU countries when they implement EU law. The rights of children and young people are protected therein article 24 and in article 31 on the prohibition of child labour, specifically covering children’s rights.6 The overriding principle and purpose throughout Article 7 of the Charter is broadly understood to be in the interest of the child and adolescent. The broadly understood interest of the child is also anchored in the Universal Declaration of Human Rights.7 Many international and regional actions on the prohibition of child labour are at the root of the Charter, reminding of the long road in p ​ rotecting children from work under a certain age and prohibiting the physical and mental exploitation of children and young people at work.8 For example, the sources mentioned below of this protection, before 1961, influenced how the Council of Europe developed the draft of Article 7.9 It should be emphasized that the Charter of 1961 played the most crucial role in the protection of child labour, as it was the first international document introducing the right to the minimum age of working youth, regardless of the sector of activity. It had a massive impact on the activities of the International Labour Organization, which in 1973 adopted the Convention concerning Minimum Age for Admission to Employment.10

6 7 8 9

10

Charter of Fundamental Rights of the European Union, 2012/​C 326/​02; https://​eur-​lex.eur​ opa.eu/​legal-​cont​ent/​EN/​TXT/​?uri=​celex%3A120​12P%2FTXT. Universal Declaration of Human Rights, in which Article 25 entitles mothers and children to special care and assistance and social protection, https://​www.un.org/​en/​about-​us /​univer​sal-​decl​arat​ion-​of-​human-​rig​hts. Articles 34 and 35 of the Convention on the Rights of the Child (crc) say governments should protect children from all forms of sexual exploitation and abuse and take all possible measure to ensure children are not abducted, sold or trafficked. For instance: The United Nations General Assembly passes the Universal Declaration of Human Rights; in 1924 The League of Nations adopts the Geneva Declaration on the Rights of the Child, drafted by Eglantyne Jebb, founder of the Save the Children Fund. The Declaration articulates that all people owe children the right to: means for their development; special help in times of need; priority for relief; economic freedom and protection from exploitation; and an upbringing that instils social consciousness and duty; in 1946 The United Nations General Assembly establishes the International Children’s Emergency Fund, unicef, with an emphasis on children throughout the world; in 1959 The United Nations General Assembly adopts the Declaration of the Rights of the Child, which recognizes, among other rights, children’s rights to education, play, a supportive environment and health care; https://​www.uni​cef.org/​child-​rig​hts-​con​vent​ion/​hist​ory-​child-​rig​hts. C138 –​Minimum Age Convention, 1973 (No. 138).

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The Council of Europe adopted two separate treaties approximately ten years apart: The European Convention on Human Rights in 1950, guaranteeing civil and political rights, and the European Social Charter in 1961, guaranteeing social and economic rights.11 This was a ground breaking instrument of a long struggle in the field of protection of the social rights of children and young people and is an important international treaty that significantly changed the shape of substantive law on children’s rights. The 1996 revision of the Charter also raised the minimum age for starting work from 16 to 18. Article 7 is considered an element of the core of the Charter and the protection of social rights since it was added by the Committee of Ministers in 1959.12 The literature emphasizes that the least frequently ratified paragraphs of Article 7 are §§ 5 and 6, which relate respectively to the right to fair wages and vocational training.13 It is worth repeating that the protection of child and youth labour at work has developed based on other activities of international institutions and in connection with other international instruments.14 Article 7 esc (or of the Charter) was added by the Committee of Ministers before the official adoption of the Charter in 1959. The age limit was set at 15 years. On the other hand, Article 7 § 2 defining the limit of 18 years of age in some instances was introduced by the Consultative Assembly in 1959. Unfortunately, the final version of the Charter did not include the age limit of 18 years, although the Revised

11

12

13 14

The Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights, was opened for signature in Rome on 4 November 1950 and came into force on 3 September 1953, https://​www.echr.coe.int /​Docume​nts/​Con​vent​ion_​ENG.pdf. Marcin Wujczyk (Zrewidowana) Europejska Karta Społeczna jako międzynarodowy standard chroniący prawa wynikające z systemu zabezpieczenia społecznego w okresie przemian ekonomiczno-​społecznych, Polskie Studia administracyjno-​prawne 2018, No. xvi/​3, p. 36 and also: Andrzej Świątkowski Karta Praw Społecznych Rady Europy, Warszawa 2006, p. 15; Davis Harris, John Darcy, The European Social Charter, New York 2001, s. 3. Isabelle Schömann, “The Right of Children and Young Persons to Protection”, in Niklas Bruun, Klaus Lörcher, Isabelle Schömann and Stefan Clauwaert (eds), The European Social Charter and the Employment Relation, Oxford: Hart Publishing, 2017, pp. 289–​306. Council of Europe, The rights of the child. A European perspective, Council of Europe Publishing, Strasbourg, 1996 p. 553. In 1989, the Convention on the Rights of the Child (crc) established the right of children and adolescents to be protected against economic exploitation and hazardous work, supplemented by optional protocols on trafficking in human beings for sexual purposes and armed conflicts in the field of enhanced protection of children against commercial exploitation and the performance of hazardous or harmful work.

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version, inspired by Council Directive 94/​33/​e c, set the age limit at 18 years.15 The current position of the European Committee of Social Rights clearly states that the law, which does not provide for exceptions to the work of children and young people under 18, is inconsistent with Article 7 § 2 of the Revised Charter. In Article 7 § 3 and 4 of the Charter, the age limit of 16 was defined in reconciling work with compulsory schooling, and the daily working time was increased to 6 hours. It was only during the work on the Revised Charter that the minimum age limit was set at 18, compared to the 16 provided for in the Charter.16 The wording of paragraphs 5 and 6 remains essentially unchanged in the Revised Charter. There are no specific allowance regulations except the dubious indication of “fair wages or other appropriate allowances”.17 Section 7 has also undergone many modifications due to the lack of agreement on the length of juvenile leave. Initially, the right to paid annual leave of at least three weeks was indicated. This wording was modified by the Consultative Assembly before the adoption of the 1961 Charter, indicating that the minimum annual leave should be 4 weeks. The 4-​week period was not accepted by the cm in the final draft of the Charter of 1961 and only eventually introduced in the Revised Charter.18 Article 7 § 2, 8 and 9 were introduced by the Committee of Ministers in 1959 and were inspired by ilo conventions 7719 and 78.20 The Advisory Assembly added paragraph 10 in 1960.21 i

Paragraph 1: The General Prohibition on Employing Children under the Age of 15 Years

In article 7 § 1, the subjective scope of the prohibition of child and adolescent labour has been defined precisely. At the same time the Committee indicated the need to specify the subjective scope of the prohibition of child labour, which should be understood broadly. It is commonly defined as child labour 15 16 17 18 19 20 21

See more: Karin Lukas, The Revised European Social Charter: An Article by Article Commentary, Edward Edgar Publishing, 2021. Explanatory Report to the European Social Charter (Revised), p. 5; https://​rm.coe.int/​168​ 00cc​de4. Explanatory Report to the European, […], p. 5. Ibid. ilo Convention No 77 on Medical Examination of Young Persons (Industry) Convention (1946). ilo Convention No 78 on Medical Examination of Young Persons (Non-​Industrial Occupations) (1946). Ibid.

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under the age of 18, according to the predominant definition22 in Directive 94/​33/​e c, which is much more restrictive as it covers young people aged 15 or over but under 18 who are not subject to already compulsory full-​time education under national law.23 The Committee points out that the States must strictly observe the subjective scope, and so, for example, the relevant labour inspectorates should monitor any involvement in artistic work by children under 15 years of age.24 Thus, Article 7 applies to all forms of professional activity, regardless of the status of an employee (an employee within the meaning of the Labour Code, employed, self-​employed, or employed under a civil law contract) and regardless of whether we are dealing with paid or unpaid work, including unpaid family or other assistance.25 The Committee pointed out that the ban on employing children under the age of 15 applies to all sectors of the economy, including agriculture, and all economic activities, including family businesses and households.26 The Committee repeatedly asks the States Parties to indicate how “temporary/​ casual work in family businesses in the agricultural, forestry or livestock sector” is monitored to ensure that the employment of children under the age of 15 is prohibited in practice. The Committee draws attention to the fact that children under the age of 15 and those subject to compulsory schooling may only work for “light” work. Work considered “light” loses this character when it is performed for too long.27 States are therefore required to define the conditions under which ‘light work’ is carried out, particularly the maximum permissible duration. The Committee assumes that children under the age of 15 who are subject to compulsory schooling should not perform light work during school holidays for more than six hours a day and 30 hours a week to avoid any risk of doing such work; they may represent their health, well-​being, moral, development, or education.28 Only one exception is provided for in Article 7§ 1, concerning children employed in prescribed light work. But this exception is interpreted restrictively by the ecsr. Indeed, young people under the age of 15 should not be 22 23 24 25 26 27 28

ecsr, Conclusions 2019, Ukraine. ecsr, Conclusions 2014, Bulgaria. ecsr, Conclusions 2015, Ukraine. ecsr, Conclusions 2014, Azerbaijan. ecsr, Conclusions i (1969), Statement of Interpretation on Article 7§ 1; ecsr, International Commission of Jurists (CIJ) v. Portugal, complaint No. 1/​1998, decision on the merits of 9 September 1999. ecsr, International Commission of Jurists (CIJ) v. Portugal, complaint No. 1/​1998, decision on the merits of 9 September 1999. ecsr, Conclusions 2011, Portugal.

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employed for light work without prior determination of the types of work as “light” established by the national authorities. An obligation has been placed on the States Parties to define a list of ‘light works’. Those States which allow children to perform light work without stipulating an hourly limit are contrary to the provisions of the Charter.29 As far as the duration of child labour is concerned, the Committee uses the interpretative remarks set out in Article 7 § 1. Work considered “light” loses this character when it is performed for too long. States are therefore required to define the conditions under which ‘light work’ is carried out, particularly the maximum permissible duration.30 In particular, they may not constitute light work for persons to be employed under the age of 15. Whether such work falls under the category of light work is determined by the number of hours worked in a given job and the time of day the work is performed (before school or after school, on weekends, or during public holidays) and the amount of time spend resting powered vehicles (such as bicycles). Depending on the nature of the duties performed, the light work category may not include all work performed on a farm, work in forests related to felling and bringing wood, or breeding pigs.31 The Committee clearly indicates to the Contracting States that children under the age of 15 and those subject to compulsory schooling may only perform “light” work, although it adopts different interpretations, which significantly weakens the principle expressed in paragraph 1. States are therefore obliged to define the conditions for performing “light work” and the maximum length of time allowed for such work. The Committee assumes that children under the age of 15 and those subject to compulsory schooling should not work more than 6 hours a day and 30 hours a week during school holidays, to avoid the risk of such work being carried out by it may have for their health, moral well-​being, development or education. For example, in the case of Portugal, the Committee also noted that children should be allowed at least two consecutive weeks of rest during the summer holidays. At the same time, Portugal was asked for information on the daily and weekly duration of any light work that children under 15 may do during school holidays and whether the children enjoy at least two consecutive weeks of rest during the summer holidays. Regarding the duration of light work during the school term, the Committee found that children who continued to be compulsorily schooled worked light for two hours during the school day and 12

29 30 31

ecsr, Conclusions 2014, Azerbaijan. ecsr, Conclusions 2019, Bulgaria. ecsr, Conclusions iii (1973), p. 39 Italy.

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hours a week per semester outside of school hours established for attendance at school, was in line with the requirements of Article 7 § 3 of the Charter.32 ii

Paragraph 2: A Minimum Age of Admission to Employment

Article 7 § 2 is addressed to States Parties as it requires them to establish a minimum employment age with respect to prescribed occupations regarded as dangerous or unhealthy. Concerning the 1961 Charter, this minimum age is the same as the one specified in Article 7 § 1, i.e. 15 years.33 Paragraph 2 of the Revised Charter raised this minimum age to 18.34 When analysing conclusions concerning Italy in 201135 the Committee concluded that the situation in Italy was not in line with Article 7 § 2 of the Charter, as it has not been established that the labour inspectorate carries out inspections in training establishments where the tasks performed by persons under the age of 18 may be considered dangerous or unhealthy, even if they have not been recognized as such. In particular, the Committee referred to the fact that the Italian labour inspectorates did not carry out any inspections at technical and vocational training institutes for the sole reason that they did not provide training that could be considered unsafe or unhealthy. The Committee considered that inspections should not be limited to places where training considered unsafe or unhealthy is allowed; they should also be carried out in places where such training is prohibited to ensure that the prohibition is applied. Consequently, it was found that the situation in Italy was inconsistent with Article 7 § 2 of the Charter because the labour inspectorate does not carry out control visits to training establishments where persons under the age of 18 could perform some tasks considered dangerous or unhealthy.36 In this respect, the Committee assumed ineffective protection of the rights guaranteed in the Charter.37 Article 7 § 2 of the Charter obliges the authorities of the States to draw up a list of dangerous or unhealthy work for young people. Earlier, the Committee noted in the case of Azerbaijan,38 that Article 250 of the Labour Code prohibits the employment of adolescents under the age of 18

32 33 34 35 36 37 38

ecsr, Conclusions 2011, Portugal. ecsr, Conclusions i (1969), p. 186. ecsr, Conclusions 2006, France. ecsr, Conclusions 2011, Italy. Ibid. ecsr, Conclusions 2019, Georgia. ecsr, Conclusions 2018, Azerbaijan.

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in arduous or dangerous conditions, in particular in underground pavements, mines, and other underground works, as well as in places such as bars, casinos and discos, which could hinder their development or in places where alcoholic beverages, psychotropic substances, and toxic substances are stored or sold.39 Notably, States Parties are not only obliged to create such lists with a list of hazardous work, but most importantly, they must create procedures and rules for the employment of children and young workers.40 iii

Paragraph 3: A Prohibition of Employing School Children at Work that Affects Their Education

Article 7 § 3 of the Charter supplements Article 7 § 1. It applies to children and adolescents reaching the age of 15 who attend school. Indeed, States Parties are required to prohibit the employment of children and young people under the age of 15 because working would prevent them from taking full advantage of their education. As in the case of § 2, adequate protection of the rights guaranteed by the Charter cannot be ensured only by legislation; the rules must be effectively applied in practice and strictly supervised.41 The Committee recalled that for children under 1542 work must not harm their moral, physical or mental development and must not restrict their right and ability to learn. The Committee further noted that a minor under the age of 16 years of age must not work for more than ten hours a day for entertainment purposes, including a two-​hour break for meals and rest and recreation.43 In the light of the rules concerning the permissible time of performing light work referred to in Article 7 § 1 daily and weekly hours of light work allowed for compulsory schooling children which is excessive, cannot qualify as light work. The Committee also points out that the States must ensure a compulsory and uninterrupted rest period during school holidays. During the summer holidays, its duration may not be less than 2 weeks.44 Therefore, it would not conform with Article 7 § 3, if the States Parties would allow pupils over the age of 15, who are still in full-​ time compulsory education, to work for a maximum of four weeks during the summer holidays, when summer holidays are approximately six weeks long.45 39 40 41 42 43 44 45

ecsr, Conclusions 2015, Azerbaijan. ecsr, Conclusions 2019, Turkey. ecsr, Conclusions 2015, Georgia. ecsr, Conclusions 2015, Turkey. ecsr, Conclusions 2015 and 2019, Georgia. ecsr, Conclusions 2011, Statement of Interpretation on Article 7 § 3. ecsr, Conclusions xvii 2 (2005), Germany.

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The Committee made these conclusions for Ireland, where Act 16 of 1996 on the Protection of Young People at Work allowed children under 15 to perform light work for up to seven hours a day and up to 35 hours a week outside school periods. The Committee found that this regulation was inconsistent with the Charter because the daily and weekly time during which children still covered by compulsory education may perform light work during school holidays is excessive, and therefore this work does not fall within the definition of light work, also in when a relative employs the child.46 The analysed provision creates a normative basis for the establishment by the States of the maximum daily work limits for children and adolescents on school days.47 However, a situation where a State Party allows children to work in the morning before school is contrary to Article 7 § 3.48 The prohibition set out in Article 7 § 3 of the Revised Charter must be clear and legible. The Committee points out that prohibiting the employment of minors under the age of 15 must not deprive them of the possibility of education but moreover, States are obliged to control children and young people who are obliged to continue their education.49 Even if the child attends classes and obtains good grades and at the same time works, it is not a sufficient guarantee that the work does not have a negative impact on the educational process and development.50 In Albania, the age for admission to work is 16 and the age for ending compulsory education is 16. In the case of countries that have set the same age, which must be over 15 years, for admission to work and completion of compulsory education, the Commission considers such cases based on the interpretation of § 3 and not § 1.51 The prohibition set out in Article 7 § 3 of the Charter is universal. It covers all types of work, including work in agriculture and household work. The Committee must consider any exclusion from the application of this provision to be contrary to the standards of the Charter.52 The structure of the ban introduced by Article 7 § 3 The Charter can be defined by introducing the essential elements of this prohibition. And so, the Committee points out that, first of all, the definition of light work must be precise,53 States Parties establish lists

46 47 48 49 50 51 52 53

ecsr, Conclusions 2019, Ireland. ecsr, Conclusions xv-​2 (2001), United Kingdom. ecsr, Conclusions 2011, Italy. ecsr, Conclusions xi-​2 (1991), Italy. ecsr, Conclusions xiii-​2 (1994), Austria, pp. 83–​84. ecsr, Conclusions 2019, Albania. For instance: ecsr, Conclusions xii-​2 (1992), Austria. ecsr, Conclusions 2011 and 2015, Ukraine.

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of work that can be considered “light”, work loses the attribute of lightness when it is performed for a long time, the maximum allowable time of its performance must be taken into account, it is forbidden54 to employ adolescents at night, in the morning hours in front of school,55 not more than half of the daily standard, on public holidays and seasonal holidays.56 The rest period must last for at least two consecutive weeks during the summer holidays,57 children under 15 years of age and subject to compulsory schooling should not carry out light work during school holidays for more than 6 hours a day and 30 hours a week, the right of children to a period without all work of at least two consecutive weeks must be guaranteed during the summer holidays.58 States are required to carry out activities monitoring labour inspectors with regard to those still in compulsory education.59 iv

Paragraph 4: Working Time of Young Workers

Article 7 § 4 of the Charter applies to young workers who do not have compulsory education. As defined in Article 7 § 4, the working time of young workers under 18 years of age should be shortened compared to adults or in accordance with their needs. Unfortunately, the scope of the Charter covers both those who continue their education until the age of 18, and those who have completed this obligation earlier. Shortening the working time, in the case of employing young people who are no longer subject to compulsory education, is essential from their mental and physical development. Andrzej Świątkowski points out that although a young person stops education and starts work before the age of 18, they should not be deprived of the possibility of continuing education or vocational training. Indeed, primary and lower secondary schools do not provide young people with professional qualifications; therefore they must acquire qualifications and knowledge related to their work.60 The Committee concluded that the situation in Italy was not in line with Article 7 § 4 of the Charter, because it has not been established whether the working hours of

54 55 56 57 58 59 60

Ibid. ecsr, Conclusions 2010, Norway. ecsr, Conclusions xv–​i i (2001), Germany. ecsr, Conclusions 2019, Bulgaria. ecsr, Conclusions 2015 and 2019, France; Conclusions 2011, Portugal. ecsr, Conclusions 2011, 2015 (Ukraine). Andrzej Świątkowski, Labour Law and Industrial Relations Council of Europe Labour Human Rights and Social Policy Standards, Kluwer Law International b.v. 2021, p. 180.

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young people aged 15 and 16 were reasonable. In particular, the Committee referred to the existence of a contradiction between the act increasing the compulsory school age to 16 years and the regulation of the working time of adolescents aged 15–​16 which should not be possible from the commencement of schooling.61 According to Article 7 § 4 national law must limit the working hours of persons under 18 who are no longer subject to compulsory education. Here we can see a certain inconsistency in the Committee and a certain loosening of the current radical undertaking to introduce by the States the obligations imposed by Article 7 of the Charter. The Committee points out that the restriction may result from laws, regulations, contracts or tradition.62 “Tradition” as a method of regulating young workers should be unacceptable. For persons under the age of 16, the limit of eight hours a day or forty hours a week is contrary to Article 7 § 4. However, for persons over the age of 16, the same limits are in accordance with this Article. The Committee asked the authorities of the States Parties to provide information on the working time standards and the number of young workers who will be subject to shortened working hours.63 v

Paragraph 5: Fair Remuneration for Young Employees

Under the wording of Article 7 § 5, the Charter guarantees the right of young workers and apprentices to a fair remuneration or other appropriate allowances, which should appropriate to the quality and quantity of the work performed. This provision regulates remuneration principles concerning two categories of adolescents: 1) employed after signing an employment contract and people who are taking up employment based on a contract preparing for their future profession, and 2) apprentices for whom work is an integral part of training under vocational training education. The purpose of Article 7 § 5 is to protect young people against labour exploitation.64 Young workers are entitled to equal pay for equal qualifications and equal tasks. Only the inexperience of such employees and the possible desire for professional promotion may justify lower wages than older employees, but only if they are entrusted with other, less difficult tasks. Any pay loophole should be levelled.65 61 62 63 64 65

Conclusions 2011 (Italy). Conclusions 2006 (Albania). For instance: Conclusions 2019 (Italy). Andrzej Świątkowski, Labour Law and Industrial Relations Council of Europe, cit., p. 183. ecsr, Conclusions 2006, Albania.

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The Committee also requires that the remuneration is fair, e.g., ensuring a decent standard of living. Again, the Committee asks the States Parties to provide information on average and minimum wages, net of social security contributions, and tax deductions. For young people aged 15 or 16, 30% less than the starting adult wage is acceptable. For 17-​year-​olds, the difference cannot exceed 20%.66 The Committee takes net wages as a benchmark67 and recalls that the “adequacy” of remuneration is assessed by comparing the remuneration of young workers with the starting or minimum wage paid to adults (aged 18 or over). Only earnings, at the net of taxes and social security contributions, are taken into account.68 The Charter identifies the definition of fair remuneration, regarding the number of financial resources necessary to ensure a decent standard of living within the meaning of Article 4 § 1 of the Charter: the salary may not be lower than the minimum threshold, which is set at 50% of the average net salary. This happens when the net minimum wage is above 60% of the average net wage.69 While young workers should be guaranteed equal pay for the same work or work of equal value, unfortunately, the notion of fair pay for young people is a massive problem for the States. For example, in the Council of Europe’s 2019 report, Albania, Andorra, Armenia, Azerbaijan, Belgium, Georgia, Germany, Serbia, Spain, Romania, the United Kingdom, and Ukraine do not comply with the obligation to remunerate young people for their work fairly.70 Determining the amount of fair remuneration for young employees is even more difficult than it is to determine fair remuneration for adult employees. Such a dependence was indicated by the Committee when considering the case of Romania. According to eurostat data, concerning the minimum wage for young and adult workers in Romania, the remuneration of young people was 36.3% of the average gross monthly remuneration of adult workers in 2013, 38.5% in 2014, 40.5% in 2015 and 43.6% in 2016 year. The national minimum wage was not sufficient to ensure a decent standard of living; therefore, there is no question of a fair wage for a young worker.71 If the reference wage is too low, the young person’s remuneration cannot be considered fair, even if its deviation

66 67 68 69 70 71

ecsr, Conclusions 2019, Italy. ecsr, Conclusions xv-​2 (2001), Italy. ecsr, Conclusions 1991, United Kingdom. ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 4§1. ecsr, Activity Report 2019, p. 30. For a similar conclusion, see ecsr, Greek General Confederation of Labour (GSEE) v. Greece, complaint No. 111/​2014. decision on the merits of the 23 March 2017.

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from adult wages is in line with the specified percentages.72 The Committee also stressed the positive changes in determining the number of fair wages in Slovakia. According to Article 7 § 5 The Committee examined whether young workers receive the equivalent of 80% of the minimum wage in line with the fair threshold under Article 4 § 1 (60% of the average net salary).73 In the case of young apprentices, the Committee pointed out that the conditions specific to apprenticeship contracts should therefore not be excessively extended and that as soon as skills are acquired, allowances should gradually increase.74 At least one-​third of the adult base salary at the beginning of the apprenticeship must reach two-​thirds at the end. The Committee wanted to emphasize the difference in remuneration. The differences in the level of remuneration paid by employers providing vocational training must not prejudice the level of fairness compared to employees taking up their first job. The Committee notes that the apprenticeship system must not deviate from its purpose and be used to undercut the wages of young workers.75 Consequently, apprenticeships should not be too long and, as skills are acquired, the allowance should be gradually increased throughout the contract, starting with at least one-​third of the adult’s starting wage or minimum wage at the beginning of the apprenticeship and at least two-​thirds at the end of the contract.76 vi

Paragraph 6: Vocational Training as Part of the Working Day

In 1959 the Committee Ministers Report introduced the provision for promotion of a system of apprenticeship without regulating allowances. Paragraph 6 was then newly proposed by the Consultative Assembly without previous drafting history. Vocational training is regarded as an intrinsic part of young workers’ rights. On the basis of paragraph 6, the Revised Charter attempts to balance the need to protect young workers in the workplace with the need to ensure professional integration for a better start in the labour market. In order to ensure the effective exercise of young persons’ right to protection from abuse, the States Parties undertake to ensure that time spent by young 72 73 74 75 76

ecsr, Conclusions 2019, Romania. ecsr, Conclusions 2019, Slovak Republic; ecsr, Conclusions xvii-​2 (2005), Spain. ecsr, Conclusions 2019, Lithuania. ecsr, Conclusions xxi-​ 4 (2019), Spain and Conclusions ii (1971), Statement of Interpretation on Article 7§ 5; also ecsr, Conclusions 2006, Portugal. Ibid.

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people in vocational training during normal working hours, with the consent of the employer, is considered part of the working day. In accordance with Article 7 § 6 Revised Charter, the time spent by young people in vocational training during normal working hours must be considered as working time.77 Such training should, in principle, take place with the employer’s consent –​ but not necessarily funded by the employer –​and be related to the young person’s work. Training time should therefore be paid as normal working time and there should be no obligation to make up for those hours, resulting in an increase in total working hours.78 vii

Paragraph 7: Entitlement to Paid Annual Leave

Paragraph 7 has been part of the drafting documents since 1955, providing that young persons are entitled to no less than 3 weeks’ annual holiday with pay. The paragraph was modified and the length of paid annual holidays for young workers was increased from the three weeks provided in the 1961 Charter to four weeks in the Revised Charter. The wording of the paragraph was amended by the Social Committee of the Committee Ministers in 1959, indicating that persons under 18 years of age are entitled to it. The Consultative Assembly increased the minimum annual leave to four weeks in 1959, which was changed again in the final version to the original three weeks. The four-​week period was again introduced with the Revised Charter. However, in 1995, the Committee of Independent Experts noted that the States Parties should at least be encouraged to provide a longer period of paid leave for young workers, given the importance of protecting children and young people, as there is no difference between adults and young workers in this respect. However, this opinion was not considered in the final text of the Revised Charter. Based on the paragraph, the States Parties to the Revised Charter undertake to set the length of annual paid leave for workers under 18 years of age at a minimum of four weeks. In accordance with Article 7 § 7 Revised Charter,

77 78

ecsr, Conclusions xv-​2 (2001), Netherlands. ecsr, Conclusions v (1977), Statement of Interpretation on Article 7 § 6.

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young workers under the age of 18 must be entitled to at least four weeks of paid annual leave.79 The same arrangements that apply to the right to paid annual leave for adults80 are applicable in this case. Under Article 7 § 7, a young worker who is not able to work due to sickness or an accident during all or part of their paid annual leave must be entitled to use the days of leave lost this way at another time, at least to the extent necessary to guarantee them the four weeks of paid annual leave provided for in the Revised Charter. This principle applies in all cases, irrespective of whether the incapacity for work began before or during the leave, as well as in cases where a specific period of leave is imposed on the workers of the undertaking.81 Moreover, the ecsr found that domestic provisions allowing employees under 18 years of age the option of giving up their annual holiday in return for financial compensation82 or increased remuneration were not in conformity with Article 7 § 7.83 In this context, it is worth mentioning that, in the case dealing with the introduction of ‘special apprenticeship contracts’ for individuals aged 15 to 18,84 the ecsr ruled that there was a violation of Article 7 § 7 when apprenticeship contracts are excluded from the scope of the labour legislation and when there is no entitlement to an annual holiday with pay. viii

Paragraph 8: Prohibition of Employment in Night Work

In order to ensure the effective exercise of the right to protection of children and adolescents, in 1959, the Committee Ministers introduced, inter alia, paragraph 8. According to Article 7(8), the States Parties undertake to prohibit the employment of workers under the age of 18 in night work, with the exception of certain work defined by national laws or regulations and the Appendix. This

79

ecsr, General Federation of Public Employees of Electricity Companies (genop-​d ei)/​ Confederation of Public Employees’ Unions (ADEDY) v. Greece, complaint No 66/​2011, decision on the merits of 23 May 2012, § 30–​32. 80 See Article 2 § 3 of the Revised Charter. 81 ecsr, Conclusions 2006, France. 82 ecsr, Conclusions 2011, Albania. 83 See, mutatis mutandis, Conclusions xii-​2 (1992), Article 2 § 3. 84 ecsr, GENOP-​DEI and ADEDY v. Greece, cit., §§ 31 and 32.

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prohibition concerns all economic sectors,85 is applicable to both men and women,86 and must be rigorously supervised by the labour inspectorate and the findings should be documented with reference to the applicable sanctions. Exceptions are narrowly defined by the ecsr and can only be made regarding certain occupations, if they are explicitly provided for in national law, necessary for the functioning of the economic sector and if the number of young workers concerned is low.87 According to the Appendix, it is understood that a State Party will fulfil the obligation required by this paragraph if it complies with the spirit of this obligation by providing in its legislation that the vast majority of persons under the age of 18 will not be employed in night work. National laws or regulations should not only cover jobs in the industrial sector. Since 1994, the ecsr has requested information on the number of young workers who have been exceptionally allowed to work at night, in order to assess whether the legal prohibition is applied to the vast majority of young workers.88 National legislation, which does not provide for such information, is not in conformity with Article 7(8).89 Exceptions may be made for certain specific occupations if they are expressly provided for by law, are necessary for proper functioning of the sectors concerned and the number of young people affected is small.90 It is for national laws or regulations to define the term ‘night’.91 ix

Paragraph 9: Regular Medical Examinations

Paragraph 9 was added by the Committee Ministers in 1959. In accordance with it, the States Parties undertake to ensure that workers under the age of 18 employed in certain occupations defined by national laws or regulations must undergo regular medical examinations. In application of article 7 § 9,

85 86 87 88 89 90 91

ecsr, Conclusions xiii-​2 (1994), Cyprus, as well as ecsr, Conclusions xiii-​3 (1993), Turkey. ecsr, Conclusions xii-​2 (1992), Malta. ecsr, Conclusions 2011, Czech Republic; ecsr, International Commission of Jurists v. Portugal, complaint No 1/​1998, decision on the merits of 9 September 1999, § 32. ecsr, Conclusions xiii-​2 (1994), Conclusions xiii-​4 (1996) and Conclusions xv-​2 (2001). ecsr, Conclusions xvii-​2 (2005). Digest the case law of the European Committee of Social Rights, December 2018; ecsr, Conclusions xvii-​2 (2005), Malta. ecsr, Conclusions i (1969), Statement of Interpretation on Article 7 § 8.

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national law must provide for compulsory and regular medical examinations92 for young people under the age of 18 employed in certain occupations defined by national laws or regulations. These medical examinations must be adapted to the specific situation of young people and the particular risks to which they are exposed.93 However, the occupational health service may carry out such medical examinations if it has been trained to do so.94 Medical checks must take place at the time of recruitment and at periodic intervals thereafter.95 The checks should not be too far apart. For example, an interval of two years is considered by the ecsr to be too long.96 The medical examination provided for in Article 7 § 9 must take into account the aptitudes and risks of the work envisaged.97 The ecsr also found a breach of Article 7 § 9 when the right of young employees to regular medical checks was not guaranteed due to ineffective enforcement of the legislation.98 x

Paragraph 10: The Special Protection against Physical and Moral Dangers

A draft of Article 7 § 10 was proposed to the Charter by the Consultative Assembly in 1959. No further changes have been introduced in the paragraph and the Revised Charter has kept the original wording of the 1961 Charter. Article 7 § 10 is closely linked to and overlaps with Article 17 of the Revised Charter. The fact that the right of children and adolescents to social, legal and economic protection is guaranteed in Article 17 of the Revised Charter does not preclude the examination of certain relevant child protection issues under article 7 § 10. The States Parties that have accepted both provisions must respect the aspects relating to the protection of children from moral hazards in and outside of work as well as the involvement of children in the sex industry and forced begging under Article 7 § 10. The aspects relating to protection from ill-​treatment, including corporal punishment, are dealt with in Article 17.

92 93 94 95 96 97 98

ecsr, Conclusions iv (1975), Statement of Interpretation on Article 7 § 9. ecsr, Conclusions 2006, Albania. ecsr, Conclusions viii (1984), Statement of Interpretation on Article 7 § 9. ecsr, Conclusions xiii-​1 (1993), Sweden. ecsr, Conclusions 2011, Estonia. ecsr, Conclusions xiii-​2 (1994), Italy. ecsr, Conclusions 2011, Bulgaria.

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However, the issue of corporal punishment is dealt with under article 7 § 10 if the State Party has not adopted Article 17.99 This very broad provision ensures the right of children to be protected from physical and moral harm within and outside work. The States Parties undertake to guarantee special protection against physical and moral dangers to which children and adolescents are exposed, and in particular those arising directly or indirectly from their work.100 The special protection under Article 7 § 10 includes the protection of children from all forms of exploitation. As interpreted by the ecsr, the paragraph also covers trafficking of human beings as a serious form of exploitation. It also includes the protection from the misuse of information technology. Because of the link between this provision and fundamental rights of young people as “the right to life, to psychological and physical integrity and to respect for human dignity”,101 the ecsr has broadly interpreted its scope of application. It considers that Article 7 § 10 applies to all minors present in the territory of the State, whether they are foreigners or not and whether they are in legal residence or not.102 Moreover, on the occasion of various collective complaints, the ecsr concluded to the violation of Article 7 § 10 due to the important and persistent failure to care for foreign minors present on State Parties’ territory.103 The Revised Charter calls on national legislators to provide an adequate legal framework for the identification of potentially hazardous work, either by listing such forms of work or by defining the risks (physical, chemical, biological) that may occur at work. In addition, the minimum age required to carry out such work should be clearly stated. In cases where such work is necessary for the purposes of vocational training, national legislation should specify the 99

100 101 1 02 103

ecsr, Digest the case law of the European Committee of Social Rights, December 2018, p. 113; ecsr, Conclusions xv-​2 (2001), Statement of Interpretation on Article 7 § 10; ecsr, Association pour la protection des enfants (APPROACH) Ltd v. Cyprus, complaint No 97/​ 2013, Decision on admissibility of 2 July 2013. Monika Schlachter, Lauri Leppik, Birgitta Nyström and Elena Machulskaya, Dissenting opinion to the decision on admissibility of 2 July 2013 in Association for the Protection of all Children (APPROACH) Ltd v. Cyprus, Collective complaint No 97/​2013. ecsr, Défense des Enfants International (DCI) v. Belgium, complaint No 69/​2011, decision on the merits of 23 October 2012, § 97. Ibid., §§ 85–​86. Ibid., § 97; ecsr, European Committee for Home-​Based Priority Action for the Child and the Family (EUROCEF) v. France, complaint No. 114/​2015, decision on the merits of 24 January 2018, § 138; ecsr, International Commission of Jurists (icj) and European Council for Refugees and Exiles (ECRE) v. Greece, complaint No. 173/​2018, decision on the merits of 26 January 2021, § 191.

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conditions under which it may be carried out, including the need for specialised supervision, and the time limits involved.104 Given its broad scope and its importance for the physical and mental integrity of minors, the ecsr has developed a fairly detailed jurisprudence on this provision. The following aspects have evolved in the course of its interpretative works: protection against sexual exploitation, protection from the misuse of information technology, and protection from other forms of abuse. A The Protection against Sexual Exploitation For policies against commercial sexual exploitation of children to be effective, they must address three fundamental and interrelated forms of this phenomenon, namely child prostitution, child pornography and child trafficking.105 Child prostitution is the offering, recruitment, use or supply of children for sexual activities in exchange for payment or other remuneration.106 Child pornography has been defined broadly to take into account the development of new technologies that have changed its nature –​it includes offering, production, distribution, sharing and possession of material depicting a child engaged in sexually explicit conduct or realistic images of a child engaged in sexually explicit conduct.107 The ecsr also takes into account that new technologies may lead to new forms of child pornography. Child trafficking means recruitment, transportation, transfer, harbouring, delivering, selling or receiving a child for the purpose of sexual exploitation.108 To ensure compliance with Article 7 § 10, States have “a positive obligation to adopt an adequate legislative framework and an action plan to combat sexual exploitation”.109 In particular, the prohibition of all forms of sexual exploitation must be accompanied by an appropriate monitoring mechanism and sanctions.110 The ecsr developed the minimum requirements from the application of Article 7 § 10. As legislation is a prerequisite for an effective policy against the sexual exploitation of children, Article 7 § 10 requires the enforcement of 104 Isabelle Schömann, “The Right of Children and Young Persons to Protection”, in Niklas Bruun et al. (eds), The European Social Charter and the Employment Relation, cit., p. 292. 105 ecsr, Digest the case law of the European Committee of Social Rights, December 2018; ecsr, Conclusions 2004, Bulgaria. 106 ecsr, Conclusions 2015, Romania. 107 ecsr, Conclusions xvii-​2 (2005), Portugal. 108 ecsr, Conclusions 2004, Bulgaria. 109 ecsr, Federation of Catholic Family Associations in Europe (FAFCE) v. Ireland, complaint No. 89/​2013, decision on the merits of 12 September 2014, § 57. 110 ecsr, Conclusions 2004, Bulgaria.

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criminal law in relation to all acts of sexual exploitation.111 To this end, it is not necessary for a State Party to establish a specific mode of repression of the acts in question, but it must provide for criminal prosecution when such acts are committed. The States Parties must punish all such acts involving children under the age of 18, even if the legal age of sexual consent is lower.112 Child victims of sexual abuse should not be prosecuted for an act involving such abuse.113 A national plan to combat the sexual exploitation of children should be developed.114 B Protection against the Misuse of Information Technology Modern information technologies have facilitated the sexual exploitation of children. The Internet is becoming one of the preferred channels for disseminating child pornography. Some States Parties have adopted legislation on online grooming, i.e. meeting a child below the age of consent in order to commit a sexual offence.115 To combat the sexual exploitation of children through online technologies, the States Parties must adopt legal and practical measures to combat this phenomenon. They should ensure that isp s take responsibility for monitoring the sites they host and encourage the development and use of an optimal system for monitoring online activities (safety messages, warning buttons, etc.) and connection procedures (filtering and classification systems, etc.).116 Internet service providers should be required to remove or prevent access to illegal material of which they are aware, and there should be internet security services that can be contacted at any time to report the presence of illegal material.117 C Protection from other Forms of Exploitation The States Parties must prohibit subjecting children to other forms of exploitation, such as domestic or labour exploitation, including trafficking for labour exploitation, begging or organ harvesting.118

1 11 112 113 114 115

ecsr, Conclusions xvii-​2 (2005), Poland. ecsr, Conclusions xvii-​2 (2005), Czech Republic. ecsr, Conclusions xvii-​2 (2005), United Kingdom. ecsr, Conclusions xvi-​2 (2003), Poland; Conclusions 2006, Albania. ecsr, Digest the case law of the European Committee of Social Rights, December 2018; ecsr, Conclusions xix-​4 (2011), Poland. 116 ecsr, Conclusions 2004, Romania. 1 17 ecsr, Conclusions xix-​4 (2011), Croatia. 118 ecsr, Digest the case law of the European Committee of Social Rights, December 2018; ecsr, Conclusions 2004, Bulgaria.

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The States Parties must also take preventive measures and assist street children and assist them in regaining a dignified and protected living situation.119 In all these cases, States Parties must ensure that their legislation not only prevents abuse and protects children and adolescents, but is also effective in practice.120

Concluding Remarks

The Revised Charter and the escr case law are the most important legal sources for the social protection of children young people in the human rights system, providing a framework for synergies with other EU and Council of Europe instruments and mechanisms in this field.121 Article 7 imposes an unconditional and positive obligation on States Parties to take specific measures and to adopt binding measures of predetermined content or to recognise a specific right in order to effectively guarantee the protection of children and young persons in the workplace. Furthermore, the ecsr, through its dynamic jurisprudence, plays a decisive role in formalising and realising the right by leading to a shift from an obligation of means to an obligation of results. Recent case law on corporal punishment, the situation of young migrants and asylum seekers and the covid-​19 pandemic122 confirms the Revised Charter’s relevance as a living instrument for the protection of children and young persons’ human rights in precarious situations. Child labour remains a worrying problem in a number of States Parties, which has been highlighted again by the ecsr in most recent 119 ecsr, Conclusions 2004, Romania; Conclusions xv-​2 (2001), Observation interprétative de l’article 7 § 10. 120 ecsr, Conclusions 2006, Bulgaria. 121 Luis Jimena Quesada, “Rights of Young People and the European Social Charter”, Studia z Zakresu Prawa Pracy i Polityki Społecznej (Studies on Labour Law and Social Policy), 2021, 28, nr 1: p. 12. 122 The ecsr stated in Statement of Interpretation on the Right to Protection of Health in Times of Pandemic (adopted by the Committee on 21 April 2020): “The Committee wishes to recall that many of the above measures are required to comply not only with the obligation to protect the right to protection of health under Article 11, but also with other Charter obligations related to health, including obligations in respect of … the right of children and young persons to protection and health care (Article 7 §§ 9–​10 and Article 17 § 1). During a pandemic, States Parties must take all possible measures as referred to above in the shortest possible time, with the maximum use of available financial, technical and human resources, and by all appropriate means both national and international in character, including international assistance and cooperation”.

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monitoring cycles. Starting from the 2020 monitoring cycle, the ecsr will also gather information on child poverty and stateless children, as these topics have been identified as problematic trends that require state action.

article 8

The Right of Employed Women to Protection of Maternity Catarina de Oliveira Carvalho, Luísa Andias Gonçalves





With a view to ensuring the effective exercise of the right of employed women to the protection of maternity, the Parties undertake: 1. to provide either by paid leave, by adequate social security benefits or by benefits from public funds for employed women to take leave before and after childbirth up to a total of at least fourteen weeks; 2. to consider it as unlawful for an employer to give a woman notice of dismissal during the period from the time she notifies her employer that she is pregnant until the end of her maternity leave, or to give her notice of dismissal at such a time that the notice would expire during such a period; 3. to provide that mothers who are nursing their infants shall be entitled to sufficient time off for this purpose; 4. to regulate the employment in night work of pregnant women, women who have recently given birth and women nursing their infants; 5. to prohibit the employment of pregnant women, women who have recently given birth or who are nursing their infants in underground mining and all other work which is unsuitable by reason of its dangerous, unhealthy or arduous nature and to take appropriate measures to protect the employment rights of these women.

Introduction Article 8 of the revised Charter aims at protecting employed women with respect to maternity. For this purpose, it recognizes the right to a maternity leave with pay or adequate benefits along with the right to time off for nursing. It also forbids dismissal during pregnancy and maternity leave, as well as dangerous, unhealthy, or arduous work involving pregnant women, women who have recently given birth or who are nursing their infants, and finally regulates the night work of such women. The situations covered by the current Article are also protected by other international and European sources, the interplay of which has been described © Koninklijke Brill NV,

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as an “upward spiral”1 of maternity protection in the labour market. To begin with, the ilo Maternity Protection Convention No. 183 (2000) has to be highlighted, given that it was based on the revised Charter, even though “it sets more elevated requirements”.2 It is the updated version of Convention No. 3 (1919), later modified by Convention No. 103 (1952), which had a major influence on the original version of Article 8 of the 1961 Charter. The ilo Convention No. 171 (1991), regulating night work, also had relevant impact on Article 8 § 4 of the Charter.3 The Universal Declaration of Human Rights (1948) includes the principle of motherhood and childhood protection in Article 25 § 2. Other UN Treaties deserve to be mentioned. Firstly, the International Covenant on Economic, Social and Cultural Rights (1966), whose Article 10 § 2 calls for special protection “accorded to mothers during a reasonable period before and after childbirth”, including “paid leave or leave with adequate social security benefits”. Secondly, Article 11 § 2 of the Convention on the Elimination of All Forms of Discrimination against Women (1979) confers protection to women on the grounds of maternity, namely in case of dismissal or harmful work, along with maternity leave with pay or with comparable social benefits. Finally, at the EU level, two main instruments must be emphasized in this context. Article 33 § 2 of the Charter of Fundamental Rights of the European Union, which addresses “the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child”, was inspired namely by Article 8 of the Charter.4 And Council Directive 92/​85/​e ec of 19 October 1992, on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, whose definition of a female worker has admittedly inspired the interpretation of Article 8 of the Charter.5 As we will mention later, these instruments assume noteworthy importance when interpreting the Charter, since the ecsr takes account of EU law for this purpose.6 Article 8 of the revised Charter has undergone major changes when compared with its predecessor. In fact, the wording of the heading of Article 8 1 Csilla Kollonay-​Lehoczky, “The Right of Women to Maternity Protection”, in Niklas Bruun, et al. (eds.) The Employment Social Charter and the Employment Relationship, Oxford and Portland, Hart Publishing, 2017, p. 310. 2 Csilla Kollonay-​Lehoczky, cit., p. 326. 3 See Explanatory Report to the European Social Charter (Revised), Strasbourg, 3.v.1996, p. 6. 4 Explanations Relating to the Charter of Fundamental Rights (2007/​C 303/​02). 5 Digest of the case law of the ecsr, December 2018, pp. 49–​50; Explanatory Report to the European Social Charter (Revised), Strasbourg, 3.v.1996, p. 6. 6 Digest of the case law of the ecsr, December 2018, pp. 49–​50.

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of the Charter of 1961 was merely “The right of employed women to protection”, being “based on a rather paternalistic, protective, restrictive approach to female workers”,7 which was in line with other important international conventions in force at that time, namely from the ilo.8 This was particularly obvious regarding Article 8 § 4 (a) and (b), which limited women’s access to night work in industrial employment, as well as to all other work considered “unsuitable for them by reason of its dangerous, unhealthy, or arduous nature”. Such constraints could be considered gender discriminatory, since they are not applicable to men. As stated by the cjeu,9 “[a]‌s far as the aims of protecting female workers are concerned, they are valid only if […] there is a justified need for a difference of treatment as between men and women. However, whatever the disadvantages of night work may be, it does not seem that, except in the case of pregnancy or maternity, the risks to which women are exposed when working at night are, in general, inherently different from those to which men are exposed”. Thus, the amendments introduced in Article 8 by the revised Charter took into account the developments occurred in community law since 1961, abolishing restrictions applicable to women in general and limiting the scope of this provision to pregnant women, women who have recently given birth or who are nursing their infants. Article 8 received a new heading –​“The right of employed women to protection of maternity” –​directly inspired by the law of the European Union in order “to ensure full equality between women and men, with the sole exception of the protection of maternity”.10 As Kollonay-​Lehoczky

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Csilla Kollonay-​Lehoczky, cit., p. 308. This paternalistic approach is also underlined by Donna Gomien, David Harris, Leo Zwaak, Convention Européenne des Droits de l´Homme et Charte Social Européenne: Droit et Pratique, Strasbourg, Editions du Conseil de l’Europe,1997, p. 422, and David Harris/​John Darcy, The European Social Charter, 2nd Edition, New York, Transnational Publishers, 2001, pp. 128 and 263. According to Nicolas Valticos, Derecho International del Trabajo, Madrid, Tecnos, 1977, p. 422, during the draft of the 1961 Charter, some Scandinavian representatives opposed to this large scope, defending its limitation to pregnant women, women who have recently given birth and women nursing their infants. This proposal, nonetheless, was rejected. Namely, Maternity Protection Convention Revised (No. 103, from 1952), which updated the previous Convention No. 3 (1919), Night Work (Women) Convention Revised (No. 89, from 1948), and others regulating dangerous and arduous work, such as Convention No. 45 (1935) on Underground Work (Women). cjeu, 25 July 1991, Tribunal de Police, Illkirch, France v. Alfred Stoeckel, C-​345/​89, pt. 15, regarding the general prohibition of night work by women, where night work by men is allowed. Digest of the case law of the ecsr, December 2018, p. 50; Explanatory Report to the European Social Charter (Revised), Strasbourg, 3.v.1996, p. 6.

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pointed out, adding two words to the original title (“of maternity”) has brought “a whole world of change”, “in approach, spirit and substance”.11 This new approach is very close to the so-​called “exception” approach, adopted by community law since Council Directive 76/​207/​e ec of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions,12 where legal protection of women during pregnancy and after birth was justified as an exception to the equal treatment principle.13 And it was also in this view that Council Directive 92/​85/​e ec was approved.14 Nevertheless, the association between maternity issues and gender equality is already well established in EU law, mostly due to the interpretation activity of the cjeu, according to which any unfavourable treatment of a woman related to pregnancy or maternity constitutes direct discrimination on grounds of sex, since pregnancy and maternity are gender-​specific.15 Later, several references in EU legislation explicitly adopted the same rational.16 This reasoning of the cjeu was followed by the ecsr when interpreting the revised Charter, as it will be seen below.

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Csilla Kollonay-​Lehoczky, cit., p. 308 and footnote 3. Repealed by the Recast Directive 2006/​54/​e c of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. 13 This is clearly stated in article § 2.3: “This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity”. A more detailed analysis of this “exception approach” to the topic of maternity protection vis a vis the gender equality principle in employment and occupation can be traced at Maria do Rosário Palma Ramalho, “Reconciling Family and Professional Life and the Gender Equality Principle in Employment”, European Gender Equality Law Review, No. 2, 2009, pp. 10 ff. 14 See Maria do Rosário Palma Ramalho, cit., p. 10. 15 E.g. cjeu, 5 May 1994, Habermann-​Beltermann, C-​421/​92; cjeu, 14 July 1994, Carole Louise Webb, C-​32/​93; cjeu, 30 April 1998, Evelyne Thibault, C-​136/​95; cjeu, 3 February 2000, Silke-​Karin Mahlburg, C-​207/​98; cjeu, 4 October 2001, Tele Danmark A/​S, C-​109/​00. For further developments, see Carvalho, Catarina Oliveira, “Informações Relativas ao Estado de Gravidez e (Não) Contratação de Trabalhadora Grávida para o Exercício de Actividades Proibidas ou Condicionadas Face à Jurisprudência do Tribunal de Justiça das Comunidades Europeias (TJCE)”, in O Direito Material e Processual do Trabalho dos Novos Tempos –​Estudos em Homenagem ao Professor Estêvão Mallet, São Paulo, LTr, 2009, pp. 94 ff. 16 E.g. article 2 § 2 (c) of the Recast Directive 2006/​54/​e c: “For the purposes of this Directive, discrimination includes: (c) any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/​85/​e ec”.

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Article 8 relates to several other provisions of the revised Charter. Firstly, as a consequence of what has just been explained, Article 8 correlates to Article 20 (the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex) since it has been perceived as “a special norm” aimed at guaranteeing equal opportunities for women in the labour market, given that the accommodation of the biological differences between men and women (the ability to become pregnant, to give birth and breastfeed) is a precondition of equal treatment.17 In this context, Articles 4 § 3 and 27 must also be considered due to their connection to sex/​gender equality. Secondly, an obvious link must be established with Articles 3, 2 § 4 and 2 § 7 while regulating health and safety at work, dangerous occupations, and night work. Thirdly, a direct association can be established with Article 12, regulating the right to social security, because of the maternity benefits recognized by Article 8 § 1.18 Regarding the personal scope of Article 8 of the Charter, it seems to be limited by its own wording to “employed women”. That is, to women who have an employment relationship, including civil servants. According to the ecsr, self-​employed women are excluded.19 It is not clear if a (third category) worker must be included.20 On the other hand, as will be seen below, the ecsr gives special attention to the so-​called atypical forms of employment, protecting part-​timers, temporary and fixed-​term employees, as well as migrant workers and employed family members.21 Special employment relationships, such as domestic employees, are also consistently considered.22

17

Csilla Kollonay-​Lehoczky, cit., pp. 308–​309. The same view is shared by Karin Lukas, The Revised European Social Charter –​An Article by Article Commentary, Camberley, Edward Elgar Publishing, 2021, p. 134. Still, as the first Author explains, this inclusion on the list of equality provisions of the Charter is often forgotten due to, on the one hand, “its ‘protective pedigree’ inherited from its 1961 predecessor” and, on the other hand, “the demanding financial obligations, which are far from characteristic of equality provisions that are normally negative”. 18 For further correlations, see Csilla Kollonay-​Lehoczky, cit., p. 311, and Karin Lukas, cit., p. 134. 19 ecsr, Conclusions 2019, Statement of Interpretation on Articles 8 § 4 and 8 § 5 (General Introduction, pp. 5–​6). 20 The ecsr has highlighted that woman working at home are included. ecsr, Conclusions 2019, Italy. In some countries (e.g. Portugal), homeworkers are not considered employees but rather workers or self-​employed. This reference to women working at home might expand the scope of this provision to workers, and not only employees. 21 David Harris/​John Darcy, cit., pp. 128–​129 and 132; Csilla Kollonay-​Lehoczky, cit., p. 309. 22 E.g. ecsr, Conclusions 2019, Italy.

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Article 8 § 1 –​Right to Maternity Leave with Adequate Income

A Leave Length At the time of childbirth, all categories of employed women –​both in the private and public sectors –​shall be guaranteed the right to a leave of at least 14 weeks, that can be spread before and after delivery. The scope is “both to grant employed women protection in the case of maternity and to reflect a more general interest in public health, i.e. the health of the mother and child”.23 In the Charter of 1961 this period was only 12 weeks. The extension of the leave to 14 weeks is consistent with the period provided by the European Code of Social Security Revised (Article 56 § 2).24 It is also aligned with Directive 92/​85/​e ec (Article 8), and ilo Maternity Protection Convention No. 183 (Article 4). The maternity leave must be guaranteed by law, as customary rights are insufficient to comply with this obligation,25 or even collective agreements alone.26 It must be regulated as a maternity leave and not as a sick leave,27 including when the child is stillborn.28 Even so, national law may authorise women to opt for a shorter period of maternity leave. National legislation must recognize the right of women to use all or part of the maternity leave, ensuring by means of a scheme of benefits set at an adequate level that they freely choose to use it in full, if that is their wish, forcing the employer to respect that choice. As long as this is granted, national law may admit that women choose to shorten the period of maternity leave.29 That is, for example, the case of Portugal, whose domestic law allows women to choose not to use the total period of maternity leave.30 However, the ecsr also considers that a minimum period of cessation of work must be taken after the childbirth to avoid practices that infringe the aim of this provision. This means that a compulsory maternity leave of no less 23

ecsr, Conclusions 2011, Statement of Interpretation on Article 8 § 1; Digest of the case law of the ecsr, December 2018, p. 116. 24 Karin Lukas, cit., p. 135. 25 ecsr, Conclusions iii (1973), Statement of Interpretation on Article 8 § 1. 26 ecsr, Conclusions iv (1975), United Kingdom. See, on this issue, Donna Gomien, David Harris, Leo Zwaak, cit., p. 421; David Harris /​John Darcy, cit., p. 129; Csilla Kollonay-​ Lehoczky, cit., p. 312. 27 Conclusions xii-​1 (1993), Greece; Digest of the case law of the ecsr, December 2018, p. 116. 28 Conclusions xii-​1 (1993), Greece. 29 ecsr, Conclusions 2011, Statement of Interpretation on Article 8 § 1. 30 ecsr, Conclusions 2011, Portugal.

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than six weeks must be implemented.31 In fact, despite accepting that national law may permit women to opt for a maternity leave shorter than 14 weeks, the ecsr considers that women shall be guaranteed six weeks’ leave after the birth of the child. This period of six weeks shall be mandatory, binding both the employer and the employee.32 The possibility to waive the leave in favour of the father is, therefore, only admitted with respect to the period after the compulsory six weeks postnatal leave.33 This interpretation was held consistently by the ecsr until 2011,34 in spite of some dissenting opinions that advocated women’s freedom of choice over how much leave to take.35 Since 2011, case law has progressively changed, adjusting to international and European law.36 The ecsr has accepted that the guarantee of the enjoyment of the postpartum period by women can be achieved by means other than the legal determination of compulsive maternity leave. It is demanded that, in such cases, national law provides “adequate legal safeguards” that assure women are not pressured to shorten their maternity leave, or, in other words, that women really choose freely when to return to work after childbirth.37 These alternative ways to ensure the effective enjoyment of six weeks leave after giving birth, whenever that is the woman’s will, may be, for example, legislation against discrimination at work based on gender and family responsibilities, the existence of agreements with social partners on the question of postnatal leave that protects the free choice of women, or additional 31

ecsr, Conclusions viii (1984), Statement of Interpretation on Article 8 § 1; Conclusions xix-​4 (2011), Statement of Interpretation on Article 8 § 1; Conclusions 2011, Statement of Interpretation on Article 8 § 1. 32 In Conclusions 2019, Azerbaijan, the ecsr concluded that the situation was not in conformity with article 8 § 1 of the Charter “on the grounds that it has not been established that the right to compulsory maternity leave is guaranteed”. 33 Conclusions xiii-​5, Portugal. 34 For further developments, see Csilla Kollonay-​Lehoczky, cit., pp. 310–​312. 35 E.g. Dissenting opinion of M. Mikkola on Article 8 § 1 (Conclusions 2005, Sweden); Dissenting opinion concerning article 8 § 1 by Fritz Fabricius (Conclusions viii, 1984). 36 See Csilla Kollonay-​Lehoczky, cit., pp. 314–​315; ecsr, Conclusions 2011, Statement of Interpretation on Article 8 § 1. According to Directive 92/​85/​e ec (article 8 § 2), maternity leave must only include a compulsory period of at least two weeks. On the other hand, ilo Maternity Protection Convention No. 183 (article 4) stipulates a compulsory period of six weeks after childbirth but admits otherwise when “agreed at the national level by the government and the representative organizations of employers and workers”. 37 Conclusions 2011, Statement of Interpretation on Article 8 § 1. In Conclusions 2019, Hungary, the ecsr considered that the situation was not in conformity with article 8 § 1 on this point on the grounds that it had not been established that there were, “in law and in practice, adequate safeguards to protect employees from pressure to take less than six weeks’ postnatal leave”. The same happened in Conclusions 2019, Ukraine.

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protection provided by collective agreements. Furthermore, the ecsr’s conclusions about this issue usually require an analysis of the general framework surrounding maternity, such as looking for the existence of other paid parental leaves and finding what is the proportion of women taking less than six weeks postnatal leave.38 For example, when analysing Slovenia’s national law, the ecsr considered that, despite the absence of a mandatory period of six weeks of paid leave, the other guarantees offered (prohibition of workers’ discrimination on grounds of pregnancy, maternity and parental leaves, together with sanctions against employers who commit such discrimination, paternity and childcare paid leaves) were enough to ensure that women were not pressured to waive their rights connected to maternity leave.39 Similarly, in Sweden the law does not fix a compulsory post-​natal leave of at least six weeks. Still, the ecsr was able to conclude that 99% of women in Sweden use their whole maternity leave and legislation provides enough protection against hostile treatment from an employer connected to maternity or parental leave. Furthermore, “it noted that parental leave, which includes maternity leave, affords both parents a right to thirteen months’ paid leave (80% of their previous income) to be shared between them as they wish and that the level of maternity benefits is of an adequate level to avoid economic pressure on women to return to work early”. Plus, “many collective agreements in both the public and the private sectors provide that the employer pays 10% extra under the ceiling (i.e., workers receive 90% income as parental benefit) and up to 90% above the ceiling”.40 Based on this scenario, the ecsr concluded that Swedish law is in conformity with the esc (rev).41 B Leave Payment Under Article 8 § 1 of the esc (rev), it is mandatory that during their maternity leave women get economic compensation. This payment can assume different modalities: a paid leave, in which the employer continues paying the wage to their employee despite the absence of work activity; social security benefits; or alternative benefits from public funds. Parties are free to choose the modality

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Conclusions 2011, Statement of Interpretation on Article 8 § 1; Conclusions 2011 and 2019, Ireland; Conclusions 2015, Slovenia, Hungary, Latvia, and Russian Federation; Conclusions 2019, Hungary and Russian Federation. Conclusions 2015, Slovenia. For other analyses on this matter, see Conclusions 2015 and 2019, Latvia and Lithuania. ecsr, Conclusions 2015, Sweden. A different interpretation had been held, regarding Sweden, in Conclusions 2005.

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of payment, or a combination thereof, provided that the level of economic compensation is adequate. Similar solutions are provided by Directive 92/​85/​e ec (Article 11 § 2)42 and ilo Maternity Protection Convention No. 183 (Article 6). Nevertheless, the ilo Convention establishes that benefits “shall be provided through compulsory social insurance or public funds, or in a manner determined by national law and practice”. As a rule,43 the employer shall not be individually liable for the direct cost of such monetary benefits, since this option can backfire resulting in the discrimination of women at work, and can lead to payment difficulties.44 1 Qualifying Period In most countries, maternity benefits are financed by social security, and national law can make entitlement to payments depend on a minimum period of employment and/​or contributions. Nevertheless, the conditions imposed for access to the payment cannot be excessive.45 It is important, in this matter, to make clear if qualifying periods allow for some interruptions in the employment record.46 For instance, the ecsr concluded that the situation in Greece is not in conformity with Article 8 § 1 of the Charter “on the grounds that periods of unemployment are not taken into account when calculating the qualifying periods required to be entitled to maternity benefits”.47 42

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“[I]‌n the case referred to in Article 8, the following must be ensured: (a) the rights connected with the employment contract of workers within the meaning of Article 2, other than those referred to in point (b) below; (b) maintenance of a payment to, and/​or entitlement to an adequate allowance for, workers within the meaning of Article 2; 3. the allowance referred to in point 2 (b) shall be deemed adequate if it guarantees income at least equivalent to that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health, subject to any ceiling laid down under national legislation; 4. Member States may make entitlement to pay or the allowance referred to in points 1 and 2 (b) conditional upon the worker concerned fulfilling the conditions of eligibility for such benefits laid down under national legislation”. Except where: “(a) such is provided for in national law or practice in a member State prior to the date of adoption of this Convention by the International Labour Conference; or (b) it is subsequently agreed at the national level by the government and the representative organizations of employers and workers”. Nicolas Valticos, cit., pp. 412 and 422. According to Directive 92/​85/​e ec (article 11 § 4), “Member States may make entitlement to pay or the allowance referred to in points 1 and 2 (b) conditional upon the worker concerned fulfilling the conditions of eligibility for such benefits laid down under national legislation. These conditions may under no circumstances provide for periods of previous employment in excess of 12 months immediately prior to the presumed date of confinement”. ecsr, Conclusions 2015, p. 6; ecsr, Conclusions 2019, Armenia and Hungary. ecsr, Conclusions 2019, Greece.

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With respect to Albania, the ecsr concluded for non-​conformity, since Albanian national law demands for a twelve-​month contribution period prior to pregnancy in order to be entitled to maternity benefits, corresponding this period to the last full calendar year preceding the year during which maternity benefits are paid, including periods of unemployment.48 In Azerbaijan, the qualifying period required to receive maternity benefits is only six months. Still, unemployment periods are not taken into account for this qualifying period, which led the ecsr to conclude that the situation in Azerbaijan was not in conformity in this regard.49 However, in Conclusions 2019, Azerbaijan stated that, when assessing this six-​month period, interruptions in a woman’s employment record –​such as periods when she receives pension or unemployment benefits, periods of paid engagement in Civil Service or periods of lawful employment abroad –​are included in her general employment record and, therefore, taken into account in the assessment of the qualifying period for maternity benefits. Consequently, the ecsr considered the situation in conformity with Article 8 § 1 of the Charter in this respect. Another example is the Hungarian legislation, which demands 365 days of contributions during the previous two years before the birth. The birth must take place while the person is insured, or within 42 calendar days of its expiry (28 days if the person receives sickness benefit) or while in receipt of accident benefit. This period was considered “rather lengthy” by the ecsr.50 Yet, that was not enough for the ecsr to conclude for non-​conformity. Instead, it requested clarifications on “how such qualifying period is calculated and, in particular, whether interruptions in the employment record are taken in account as contributory periods”. Additionally, the ecsr asked for statistical data on women who are employed but do not qualify for pregnancy-​confinement benefits, as well as information on the respective allowances available. 2 Adequate Level of Protection The level of benefits shall be sufficient to allow women to freely choose to take up the full leave.51 As for what is considered “adequate social security benefits” or “adequate benefits from public funds”, the ecsr stated that “[i]n case of continued payment of wages or earnings-​related benefits, these shall be equal to the previous salary or close to its value, and not be less than 70% of

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ecsr, Conclusions 2011 and 2019, Albania. ecsr, Conclusions 2015, Azerbaijan. ecsr, Conclusions 2015 and 2019, Hungary. David Harris /​John Darcy, cit., p. 131.

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the previous wage”.52 As a result, the level of maternity benefits in the Slovak Republic was considered insufficient in 2015, since it only corresponded to 65% of the worker’s salary.53 Regarding Turkey, the ecsr also concluded that the regime especially applicable to women employed in the press sector was not adequate, as these women, when on maternity leave, were only entitled to the payment of half of their salary by their employer.54 Furthermore, for the benefit to be adequate it shall not fall below 50% of the median equivalised income. When the benefit in question stands between 40% and 50% of the median equivalised income, other benefits, including social assistance and housing, will be considered. On the contrary, “if the level of the benefit is below 40% of the median equivalised income, it is manifestly inadequate and its combination with other benefits cannot bring the situation into conformity with Article 8 § 1”.55 In Serbia, the regulation raised some doubts. Women with at least six months of continuous insurance coverage, when on maternity leave, get a compensation corresponding to 100% of previous earnings. However, women insured for more than three but less than six months only get a payment corresponding to 60% of the salary, and women insured for less than three months have the right to a compensation corresponding to 30% of the salary. In order to clarify the situation, the ecsr asked the next report to indicate the criteria for entitlement to maternity benefits, in particular whether interruptions in the employment record are taken into account in the calculation of the qualifying

52 53

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ecsr, Conclusions 2015, Statement of Interpretation on Article 8 § 1, p. 6. ecsr, Conclusions 2015, Slovak Republic. Nevertheless, the amount of maternity benefits increased from 65% to 75% of the employee’s salary (Conclusions 2019) and is now in conformity with article 8 § 1 of the Charter on this point. In Conclusions 2019, Bosnia and Herzegovina, the ecsr also considered that the situation is not in conformity with article 8 § 1 of the Charter on the grounds that maternity benefits are inadequate in certain parts of the country. The same happened in Conclusions 2019, Ireland, where the ecsr concluded that the situation was not in conformity with article 8 § 1 “on the grounds that the amount of maternity benefit was manifestly too low in the private sector”. ecsr, Conclusions 2015 and 2019, Turkey. ecsr, Conclusions 2019, Andorra; Conclusions 2019, Armenia. In Conclusions 2019, Moldova, although maternity benefit is equal to 100% of the average monthly wage, the ecsr declared the non-​conformity of domestic legislation “since the minimum wage in the public sector is lower than the national subsistence level”. A similar situation was identified regarding the Russian Federation (Conclusions 2019), where “the minimum wage is less than the minimum subsistence level during the reference period”, which means that “the minimum amount of maternity benefits is manifestly too low”.

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period, and to provide statistical data on the proportion of women getting less than 70% of their previous salary as maternity benefits.56 In its 2015 Conclusions, the ecsr also noted that, under Cyprian legislation, maternity allowance was “still based on the wages earned in the previous insurance contribution year, instead of those earned in the months closer to maternity leave”. Regarding this, the ecsr considered Cyprian national law did not fail to conform with the Charter but asked for the next report to provide information about employed women who do not qualify for maternity allowance.57 3 Maximum and Minimum Limits A ceiling on the amount of compensation for high salary earners is not, in itself, contrary to Article 8 § 1.58 As we can read in 2017 Conclusions apropos Turkish domestic law, “[v]arious elements are taken into account in order to assess the reasonable character of the benefit reduction, such as the upper limit for calculating benefit, how this compares to overall wage patterns and the number of women in receipt of a salary above this limit”.59 Minimum rate of compensation shall not fall below the poverty threshold defined as 50% of median equivalised income, calculated on the basis of the Eurostat at-​risk-​of-​poverty threshold value.60 Irish legislation was considered as non-​conforming with Article 8 § 1 of the Charter in 2011. In fact, despite a rate of 80%, maternity benefits were subject to maximum and minimum rates, both considered too low when compared to the annual at-​risk-​of-​poverty threshold in Ireland.61

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ecsr, Conclusions 2015, Serbia. The report related to the 2019 Conclusions failed to answer this question, so the ecsr repeated it. ecsr, Conclusions 2015, Cyprus. ecsr, Conclusions 2015, p. 6. Directive 92/​85/​e ec (article 11 § 3) also allows maternity benefits to be subject to the applicable national ceiling for sick benefits. ecsr, Conclusions 2017, Turkey. ecsr, Conclusions 2015, p. 6. ecsr, Conclusions 2011, Ireland. From January 2014, “a single weekly payment of €240 was paid to qualifying persons, with the amount paid no longer dependent on income level”. The ecsr recalled that the maternity benefit must be equal or close to the normal salary, i.e. at least 70% of the person’s previous earnings, and concluded that the situation was not in conformity with article 8 § 1 of the Charter “on the grounds that the amount of maternity benefit of female employees in the private sector is manifestly too low”.

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Article 8 § 2 –​Prohibition of Dismissal during Pregnancy and Maternity Leave

Personal Scope A All categories of employed women –​both in the private and public sectors –​benefit from the prohibition of dismissal from the time they notify the employer of their pregnancy until the end of maternity leave, including special employment relationships such as domestic employees, women working at home,62 and seafarers.63 The prohibition applies equally to women on fixed-​term and open-​ended contracts.64 Still, this does not forbid the expiry of fixed-​term contracts on the agreed expiry date.65 Nevertheless, the ecsr recognizes that the expiry of such contracts during the absence of maternity leave might deprive this prohibition of its effects. Consequently, it frequently asks the States Parties to provide figures on the proportion of women on fixed-​term contracts “outside the specific and traditional instances justifying their use” and their effects on the protection of female employees while on maternity leave.66 Dismissal Prohibition Period B In the 1961 Charter, Article 8 § 2 dictated that Contracting Parties had “to consider it as unlawful for an employer to give a woman notice of dismissal during her absence on maternity leave or to give her notice of dismissal at such a time that the notice would expire during such absence”. The ecsr considered, then, that “notice of dismissal as such was not incompatible with the Charter provided that the period of notice and any procedures were suspended until the end of the leave”. It also believed that “the same rules governing suspension of the period of notice and procedures during maternity leave must apply in the event of notice of dismissal prior to maternity leave, irrespective of the length of the period of notice”.67 The Revised Charter enlarged the prohibition period, anticipating its beginning to the moment when the employer is notified about the pregnancy. Its ending remains the same: the end of the maternity leave. During this period, two things must be prevented: that a woman is given a notice of dismissal; and 62 ecsr, Conclusions i (1969), Italy. 63 ecsr, Conclusions xiii-​4 (1996), Greece. 64 Conclusions xiii-​4 (1996), Austria; Conclusions 2019, Latvia and Italy. 65 ecsr, Conclusions xv-​2 (2001), Cyprus; Conclusions 2019, Italy. 66 ecsr, Conclusions xv-​2 (2001), Cyprus, Malta and Slovak Republic. 67 ecsr, Conclusions xiii-​4 (1996), Statement of Interpretation on Article 8 § 2.

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that a previous notice of dismissal given to a woman comes to an end, expiring. If one of them happens, it shall be sanctioned as unlawful.68 The aim is to protect women during pregnancy and maternity leave against the economical and psychological effects of dismissal and safeguard their financial security and security of employment,69 preventing discriminatory dismissals due to pregnancy.70 As it happened with reference to the 1961 Charter, the mere existence of the notice of dismissal itself should not be considered as non-​conform with the Charter, as long as it comes with the prevision of suspension of the period of notice and any procedures until the end of the maternity leave.71 Similar dismissal prohibitions can be found in Article 10 of Directive 92/​85/​ eec, as well as in Article 8 of ilo Maternity Protection Convention No. 183, although the scope of the admitted exceptions may vary. Exceptions to the Dismissal Prohibition C In Conclusions i,72 the ecsr interpreted Article 8 § 2 of the Charter of 1961 declaring that its prohibition was not absolute. The same interpretation is followed regarding the revised Charter,73 and these exceptions are now explicitly incorporated in the Appendix to the Charter, including namely the following situations:74

(a) an employed woman has been guilty of misconduct which justifies breaking off the employment relationship;75 (b) the undertaking concerned ceases to operate; (c) the period prescribed in the employment contract has expired.76

Since the aim of the protection is to ward off discriminatory dismissals by reason of pregnancy, the ecsr accepts that in some cases women can be given 68 In ecsr, Conclusions 2019, Albania, the ecsr considered that the situation was not in conformity with article 8 § 2 of the Charter, since dismissal was possible during pregnancy, before claiming maternity benefits. Therefore, “the existence of adequate protection against unlawful dismissal during pregnancy has not been established”. 69 Conclusions 2015 and 2019, Slovak Republic. 70 David Harris /​John Darcy, cit., p. 133; Csilla Kollonay-​Lehoczky, cit., p. 317. 71 Digest of the case law of the ecsr, December 2018, p. 117. 72 ecsr, Conclusions i (1969), Statement on Interpretation on Article 8 § 2, p. 51. 73 ecsr, Conclusions 2011, Bulgaria, Ireland and Italy; Conclusions 2019, Bulgaria, Ireland. 74 ecsr, Conclusions i (1969), Statement of Interpretation on Article 8 § 2; Conclusions 2019, Albania. 75 ecsr, Conclusions x-​2 (1990), Spain. 76 ecsr, Conclusions 2005, Estonia.

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notice of dismissal or see the notice period expire between the moment they notify their employers of their pregnancy and the end of maternity leave, as long as such discriminatory bias is absent. Still, exceptions shall be strictly interpreted, as stated by the ecsr in many different cases.77 Dismissals for objective reasons independent from the person of the employee dismissed are not per se allowed. For instance, the inclusion of pregnant women in collective redundancies78 or the abolition of their job on economic, market, technological or structural grounds79 were found in breach of the Charter. Also, the dismissal of a pregnant woman in case of relocation of the undertaking where she works, if she does not follow the company, was not accepted as an admissible exception to the prohibition stated by Article 8 § 2.80 The same goes to legislation according to which a pregnant employee can be dismissed in a case where the work post she is occupying was previously occupied by a person who was illegally dismissed and must be reintegrated.81 Even objective reasons that are related to the capability of the employee, as it happens in cases of unsuitability for the functions performed82 or failure to meet the work objectives,83 are considered unacceptable. The ecsr also understood that “the employee’s inability to perform her work for reasons related to her health is not a circumstance which authorises dismissal under Article 8 § 2 of the Charter”.84 Finally, dismissal for subjective reasons, namely of a disciplinary nature, must imply serious fault on the part of the employee (e.g. “non-​conformity to the instructions of the employer”, “neglected performance of duties” and “repeated unauthorised absence from work”).85 For instance, the ecsr 77 78

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ecsr, Conclusions 2011 and 2019, Bulgaria; Conclusions 2015 and 2019, Lithuania; Conclusions 2019, Albania. ecsr, Conclusions 2011, Ireland. In Conclusions xiii-​4, Spain, the ecsr states that a collective dismissal (based on economic or technical reasons or for reasons relating to organisation and production) “could only correspond to the grounds allowed by the Committee where the undertaking in question ceased to operate”. ecsr, Conclusions xiii-​3 and xiii-​5, Portugal. The suppression of jobs on objective structural, technological or economic grounds concerning the company may in principle only overrule the dismissal prohibition “where the company itself is ceasing its activities”. ecsr, Conclusions xvii-​ 2, Czech Republic; Conclusions 2011 and 2019, Bulgaria; Conclusions 2015 and 2019, Slovak Republic. ecsr, Conclusions 2011, Bulgaria. ecsr, Conclusions xiii-​3 and xiii-​5, Portugal. ecsr, Conclusions 2019, Montenegro. ecsr, Conclusions 2015, Lithuania. ecsr, Conclusions xiii-​1, Greece (examples based on Greek case law).

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considered that the mere “employer’s loss of trust in the employee” is “couched in terms that are too vague and can potentially lead to abuse”.86 The same goes for the non-​compliance with the obligations laid down in law, collective agreements, or employment contract.87 Even in cases in which the employment contract will be terminated following a court decision that prevents the employee from continuing work, or is the consequence of the fact that an employee is deprived of special rights to perform certain work in accordance with a procedure prescribed by law, or happens upon request of bodies or officials authorised by law, the ecsr understands that the legitimation of those exceptions depend on the way such provisions are interpreted and applied.88 Thus, further guarantees may be required to carry out the protection granted by the Charter. On the contrary, an exception according to which a woman can be dismissed (during the period of the general prohibition previewed on Article 8 § 2) if her trial period has been unsuccessful, and she is protected against discrimination in that situation, was accepted by the ecsr.89 Also, the liquidation of the company, the bankruptcy of the employer,90 the expiry of the contract on the death of the employer if the contract was concluded for the purpose of providing services specifically to this person,91 a criminal judgment preventing the employee from continuing her work,92 or the employee losing through her own fault the necessary certificates to carry out her work,93 are deemed acceptable. 86 87 88

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Conclusions 2011, Armenia. Conclusions 2019, Montenegro. ecsr, Conclusions 2015, Lithuania; Conclusions 2005, Estonia. According to Irish domestic law, “dismissals are unfair if they result wholly or mainly from the employee’s pregnancy, or matters connected with it, unless the employee, by reason of her pregnancy or matters connected with it, was unable (i) to perform adequately the work for which she was employed, or (ii) to continue to do her work without contravention of a statutory requirement by her employer, (iii) and her employer had no other suitable vacancy to offer at the time of the dismissal, or (iv) she refused an offer for a suitable alternative job in order to keep her employed, notwithstanding her pregnancy. It also noted that discrimination based on pregnancy was covered by the Employment Equality Act”. Nevertheless, the ecsr asked for further information on how such legislation “interacted in the event of the dismissal of a pregnant woman and how the relevant authorities and courts interpreted them”, since such situations seem to go beyond the exceptions acceptable under article 8 § 2 (Conclusions 2019, Ireland). ecsr, Conclusions 2011, Italy. ecsr, Conclusions xix-​4, Poland; Conclusions 2011, Armenia. ecsr, Conclusions 2011, Lithuania. ecsr, Conclusions 2011, Armenia. ecsr, Conclusions xix-​4, Poland.

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Consequences of Unlawful Dismissal D 1 Reinstatement An employee dismissed in breach of Article 8 § 2 of the Charter must have the right to take their case before the courts or other independent judicial organs, and demand legal remedies. If an employer dismisses a woman in contradiction to the prohibition related with Article 8 § 2 of the Charter, domestic law must recognise her right to reinstatement. The lack of this consequence in national regulation leads to the declaration of its non-​conformity with the Charter. It should be underlined that non-​conformity remains even if national law, under these circumstances, grants women an economic compensation. In fact, the provision of compensation is not enough. Reinstatement must be the rule. Therefore, when analysing Albanian national law, the ecsr concluded that it was not in conformity with Article 8 § 2 because “reinstatement is not the rule in cases of dismissals on the grounds of pregnancy or maternity leave (after childbirth) in the private sector”.94 Also in Conclusions 2011, but regarding Finnish legislation, the ecsr decided for non-​conformity. In its report, Finland had clarified that, although legislation did not ensure women reinstatement in case of unlawful dismissal during pregnancy or maternity leave, an agreement could be struck between employer and employee to consider the dismissal null and void. In spite of that, the ecsr considered that such a solution was not a sufficient safeguard to fulfil the requirement of Article 8 § 2.95 2 Compensation Whenever unlawful dismissal occurs overpassing the prohibition dictated by Article 8 § 2 of the Charter and women refuse reinstatement, or it simply is not possible (e.g. the enterprise has closed down), they must have the right to financial compensation. If domestic law does not regulate the right to a compensation in case of unlawful dismissal related with these circumstances, it shall be considered as non-​conforming to the Charter.96

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ecsr, Conclusions 2011 and 2019, Albania. The same was determined in ecsr, Conclusions 2019, Finland. Although reinstatement in cases of unlawful dismissal now covers, in the public sector, civil servants at the State and Municipal level, and the Evangelical Lutheran Church of Finland, legislation still does not provide for the right to reinstatement in case of unlawful dismissal in the private sector, even if an agreement can be reached between employer and employee to consider the dismissal null and void. ecsr, Conclusions 2017, Bosnia and Herzegovina and Turkey.

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This compensation assumes a double goal: 1) compensate the female victims of dismissal for the loss suffered; 2) discourage employers from adopting this type of behaviour. Thus, it must be proportionate to the victim’s injury and sufficiently dissuasive for employers.97 Compensation shall attend both the loss of employment and the finding of new employment.98 In order to ensure the achievement of these aims, national legislations cannot introduce any ceiling on the level of compensation. The existence of a ceiling could preclude damages from being totally commensurate or hinder the desired deterrent power of the compensation. This interpretation of the ecsr comes with dissenting opinions.99 As a result, after 2011, the ecsr lightly loosened the criteria of compliance. The existence of an upper ceiling is no longer automatically considered a contravention of Article 8 § 2 of the Charter.100 In reality, if the ecsr detects a ceiling for pecuniary damage, the conformity of the domestic law with Article 8 § 2 depends on the fact that the victim can seek compensation for non-​pecuniary damage through other legal avenues (e.g. anti-​discrimination legislation).101 In this situation, it is also required that the competent courts decide within a reasonable time.102

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ecsr, Conclusions 2011, Statement of Interpretation on Article 8 § 2. Matti Mikkola, Social Human Rights, Karelactio, 2010, p. 455. See Dissenting opinion by Monika Schlachter on Article 8 § 2 concerning the following States: Luxembourg, Poland, Lithuania, Slovenia, Turkey (Conclusions 2011): “For achieving a deterring effect the established consequences must be sufficiently severe and the likelihood to face such consequences must be substantial. The effect, however, will not be determined by the composition of elements of payments due. If the amount of money that has to be awarded is high in absolute terms, the mere existence of an upper limit will not destroy the deterring effect. Whenever an employer has to award a substantial amount of money to the wrongfully dismissed former employee for which the recipient doesn’t have to work, such deterring effect will be achieved. Therefore, I conclude that the Committee should not judge the compliance with the said Charter provisions on the mere existence of an upper limit for compensation in national law but should assess the likelihood of a deterring effect by taking into consideration the amount that a wrongfully dismissed former employee could be awarded in absolute terms”. 100 See Csilla Kollonay-​Lehoczky, cit., p. 320. 1 01 ecsr, Conclusions 2019, Bulgaria, Albania and Turkey. Regarding Italy (Conclusions 2019), the ecsr considered that the right of the employee to “choose between reinstatement and compensation in lieu amounting to 15 months’ actual total salary” is not in conformity with the Charter “on the grounds that adequate compensation may not be awarded in case of unlawful dismissal during pregnancy or maternity leave if the woman concerned does not wish to be reinstated”. 102 ecsr, Conclusions xix-​ 4 and Conclusions 2011, Statement of Interpretation on Article 8 § 2.

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Article 8 § 3 –​Right to Time Off for Nursing

This Article has its origins in Article 8 § 3 of the Charter of 1961. It was maintained, with no modifications, in the Revised Charter. Similar time off rights for nursing can be found in Article 10 of ilo Maternity Protection Convention No. 183. A Personal Scope Time off for mothers who are nursing their infants must be given to all women employed in both the private and public sectors.103 Regarding different types of employment contracts, the ecsr has highlighted that domestic employees, as well as women working at home,104 are included.105 The same applies to fixed-​term employees106 and women working part-​time, although in this last case an adaptation according to a proportionality principle can be applied.107 Nursing Definition B A doubt that may arise to begin with is the concept of nursing. Should it be interpreted as including only breastfeeding, or can it also take in situations of bottle feeding? As it happens in ilo regulation108 and in EU Law,109 it seems like this special protection is exclusive to breastfeeding women. In other words, to women who feed their babies with breast milk rather than with formula milk from a bottle.

103 ecsr, Conclusions xxi-​4, Spain; Conclusions 2011 and 2019, France;. The ecsr concluded that French domestic law was not in conformity with article 8 § 3 of the Charter since women working in the civil service were not entitled to breastfeeding breaks. 104 This reference to women working at home might expand the scope of this provision to workers, and not only employees. 105 ecsr, Conclusions 2019, Italy. For further developments, see point D infra –​Sufficient time off for nursing. 106 ecsr, Conclusions 2015 and 2019, Montenegro. 107 ecsr, Conclusions 2019, Portugal. Still, in this case, a minimum period of 30 minutes is established for part-​time employees. 108 Article 10 of ilo Convention No. 183: “1 –​A woman shall be provided with the right to one or more daily breaks or a daily reduction of hours of work to breastfeed her child. 2 –​The period during which nursing breaks or the reduction of daily hours of work are allowed, their number, the duration of nursing breaks and the procedures for the reduction of daily hours of work shall be determined by national law and practice. These breaks or the reduction of daily hours of work shall be counted as working time and remunerated accordingly”. 109 Council Directive 92/​85/​e ec.

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In fact, the ecsr, in its conclusions, consistently refers to employed mothers who breastfeed their babies.110 The explanation for this is probably related with the fact that Article 8 § 3 establishes a singular protection for women (and not for men). If a child is fed in an alternative way to breastfeeding, men can perform that task. Consequently, the different treatment of both parents in this situation could infringe the principle of equal treatment for men and women as regards working conditions.111 Some domestic laws grant a larger protection to employees, which is naturally considered in conformity with the Charter. For example, in Cyprus employees have the right to reduce their daily working time by one hour until the child is nine months old, whether they are nursing their infant or not. This time is considered as working time and is remunerated as such.112 C Infant Age It is the ecsr’s understanding that breastfeeding breaks shall be granted at least until the child reaches the age of nine months.113 However, breaks may be reduced over the course of the nine months. That is, for instance, the case of Slovakia, where women are entitled to two half-​hours nursing breaks per shift (for each child) until the child reaches six months of age and, in the succeeding six months, one half-​hour break per shift (for each child).114

110 Digest of the case law of the ecsr, December 2018, p. 118, as well as in several of its conclusions (e.g. Conclusions 2019, Italy). 111 This problem was analysed by the cjeu, 30 September 2010, Pedro Manuel Roca Álvarez v. Sesa Start España ETT SA, C-​104/​09, regarding the company’s refusal to accord Roca Álvarez a so-​called nursing leave, which could also be granted in cases of bottle feeding. The cjeu noted that the leave had been detached from the biological fact of breastfeeding, so that it could be considered as time purely devoted to the child and as a measure that reconciled family life and work following maternity leave. Therefore, “the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, must be interpreted as precluding a national measure such as the one at issue in the main proceedings, which provides that female workers who are mothers and whose status is that of an employed person are entitled, in various ways, to take leave during the first nine months following the child’s birth, whereas male workers who are fathers with that same status are not entitled to the same leave unless the child’s mother is also an employed person”. 112 ecsr, Conclusions 2015, Cyprus. 113 ecsr, Conclusions 2007, Armenia. 114 ecsr, Conclusions 2015, Slovakia.

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Regarding Bulgarian domestic law, the ecsr deferred its conclusions on (non)conformity, since after the child reaches eight months of age, breaks only exist where the medical authorities find that it is necessary for the woman to continue to breastfeed the child. Therefore, the ecsr considered that a conformity declaration should depend on the information about whether in practice women wishing to continue breastfeeding their child over eight months were granted the necessary certificate from the medical authorities.115 In response, the Bulgarian report of 2019 explains “that employers have no discretion in such cases and are obliged to comply with the prescriptions of the medical authorities”. Thus, the ecsr considered that the situation is in conformity on this point.116 D Sufficient Time Off for Nursing All employed women shall be entitled sufficient time off for nursing. The ecsr has been very flexible when appreciating what is considered “sufficient time” for these breaks. In fact, several different solutions have been declared as in conformity with Article 8 § 3. Each situation is assessed on a case-​by-​case basis, since the length of the pauses “varies between countries and is frequently combined with specific solutions”.117 For instance, in Andorra’s domestic law,118 women employed in the public sector can be absent for two hours a day, which may be divided into two one-​ hour periods, so as to care for a child under nine months of age, during a period of not more than six months. These periods of time off may be accumulated in a single period of paid leave, equivalent to 40 days, from the end of maternity leave, a solution that has been considered in conformity with Article 8 § 3. In Ukraine, “employed women with children under 18 months are entitled to take nursing breaks of at least 30 minutes (60 minutes in case of two or more children) at intervals of three hours (…)”. Regarding the schedule and modalities for these breaks, they are defined “by the employer or an organisation authorised by the employer, in cooperation with trade union representatives of the enterprise concerned, and taking into consideration the mother’s wishes”.119 A similar regime can be found in Latvian law, where breaks for nursing may also be added to regular work breaks or, if so requested by the employee, transferred to the end of the day, shortening the length of the 1 15 116 117 118 119

ecsr, Conclusions 2011, Bulgaria. ecsr, Conclusions 2019, Bulgaria. Csilla Kollonay-​Lehoczky, cit., p. 321. See also Matti Mikkola, cit., pp. 458–​459. ecsr, Conclusions 2015, Andorra. ecsr, Conclusions 2015, Ukraine.

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working day.120 The same option is provided in Azerbaijan legislation, where women are granted 30 minutes break every three hours (for two or more children breaks will be of at least one hour each) to feed children under the age of 18 months.121 In the Slovak Republic, the number of nursing breaks is set based on the length of the working day. Women working less than half of the statutory working time, for instance two full working days twice a week, are entitled to two breaks for each day.122 Several models of part-​time work (shortening the workday) can also be accepted, as long as they do not involve a pay reduction or, otherwise, “loss of income is compensated by parental benefit or other allowance”.123 All these diverse solutions were considered in conformity with Article 8 § 3, provided that these periods are treated as working time and remunerated as such. E Time Off Payment Nursing breaks must be granted during working hours and treated as normal working time, including being remunerated as such. The non-​remuneration of this time off is reason enough for the ecsr to consider domestic law in non-​conformity with the Charter. For instance, the ecsr concluded that French law was not in conformity with Article 8 § 3 of the Charter because the remuneration of breastfeeding breaks was not guaranteed to employed women covered by the Labour Code.124 Also, Italian domestic law was considered as non-​conform to Article § 8.3 of the Charter. The detected problem was that organisational workers and home workers were not entitled to paid breaks for the purposes of breastfeeding their infants.125 Even though domestic workers had the possibility to reach an

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ecsr, Conclusions 2015 and 2019, Latvia. ecsr, Conclusions 2011, Azerbaijan. ecsr, Conclusions 2015, Slovak Republic. Matti Mikkola, cit., p. 459. The Author further explains the evolution of the ecsr case law regarding Sweden on this matter from non-​conformity to conformity with the Charter. 124 ecsr, Conclusions 2011 and 2019, France. 1 25 ecsr, Conclusions 2011, Italy. More recently, in Conclusions 2019, Italy argued that the payment of home workers is “based on piece rates, without reference to an hourly or monthly wage”. Therefore, “since remuneration is based not on hours worked but on piece rates, it is impossible to calculate the share of working time corresponding to breaks, with the result that the legislation on nursing breaks cannot apply to this category of women workers”.

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agreement with their employer on remunerated breaks, that was not considered sufficient by the ecsr.126 Nevertheless, the ecsr has accepted that the mere provision for part time work could fulfil the purposes of Article 8 § 3, provided the loss of income be compensated by a parental benefit or another allowance.127 That is the case of Sweden’s legislation, in which women nursing their children can reduce their daily working time and the loss of income is compensated by parental benefits.128 iv

Article 8 § 4 –​Employment of Pregnant Women, Women Who Have Recently Given Birth and Women Nursing Their Infants in Night Work

Scope and Purpose A According to Article 8 § 4, the Parties undertake to regulate the employment of pregnant women on night work, women who have recently given birth and women nursing their infants. This paragraph has its origins in Article 8 § 4 (a) of the Charter of 1961: “With a view to ensuring the effective exercise of the right of employed women to protection, the Contracting Parties undertake to regulate the employment of female workers on night work in industrial employment”. When interpreting Article 8 § 4 (a) of the Charter of 1961, the ecsr declared that the scope of such regulation was “to limit the adverse effects of night work on the worker’s health and family life and to prevent abuses”.129 The revised Charter, on the one hand, enlarged the protection to employed women in all sectors (and not only in industry) and, on the other hand, specified that the protection is intended, not to all women, but only to pregnant 126 ecsr, Conclusions 2011, Italy. More recently, in Conclusions 2019, the Representative of Italy highlighted “a distinction between two scenarios in this respect: 1) if the employee works full time with the employer’s family, she may take nursing breaks in the context of the organisation of her working time and these will be remunerated; 2) if she works part-​ time for several employers, arrangements for nursing breaks shall be left to the discretion of the parties, bearing in mind the relationship of trust inherent in this type of work”. The ecsr asked what guarantees are in place to ensure full-​time domestic workers are entitled to paid nursing breaks and deferred its conclusion pending receipt of the information requested. 127 ecsr, Conclusions 2015, Serbia. 128 ecsr, Conclusions 2015, Sweden. 129 ecsr, Conclusions x-​2 (1987), Statement of Interpretation on Article 8 § 4.

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women, women who have recently given birth and women nursing their infants.130 Otherwise, we would be facing discrimination based on sex, as explained above in the Introduction. Therefore, the reason behind the modification of 8 § 4 is “treating men equality with women where possible”.131 As far as other women are concerned, they are protected, as well as men, by Article 2 § 7, requiring “that workers performing night work benefit from measures which take account of the special nature of the work”.132 This different approach held into account ilo Convention No. 171 (1991), regulating night work, as well as Council Directive 92/​85/​e ec (Article 7).133 The aim is now narrowed to limiting the adverse effects of night work on the health of these women (pregnant, who have recently given birth and nursing),134 along with, as more recently the ecsr clarified,135 the protection of the health of the child (unborn or new-​born). Such protection depends on the assurance of safe and healthy working conditions, i.e. “working conditions which take due regard to their specific needs during respective periods”.136 Moreover, following the reasoning of the cjeu,137 ecsr has made it clear that safe and healthy working conditions must include “protection against less favourable treatment due to pregnancy and maternity”. This means that, since pregnancy and maternity are gender-​specific, any less favourable treatment due to these circumstances is to be considered as direct sex discrimination. Therefore, “the non-​provision of specific rights aimed at protecting the health and safety of a mother and a child during pregnancy and maternity, or the erosion of their rights due to special protection during such a period, are also direct sex discrimination”.138 130 Article 8 § 4 requires some form of protection for women as long as they are breastfeeding their children, even beyond the end of the statutory maternity leave period, as stated by the escr, Conclusions 2003, France. 131 David Harris /​John Darcy, cit., p. 264. As Csilla Kollonay-​Lehoczky, cit., p. 322, puts it, this change “eliminates discrimination in two directions. First, women are not excluded from jobs that, though more demanding, may offer better earnings and career opportunities. Second, men shall enjoy equal –​equally better! –​protection with women against obvious harms and dangers that previously were considered properly addressed by the exclusion of women from those jobs”. 132 See David Harris /​John Darcy, cit., p. 263. 133 See Explanatory Report to the European Social Charter (Revised), Strasbourg, 3.v.1996, p. 6. 134 Digest of the case law of the ecsr, December 2018, p. 119. 135 ecsr, Conclusions 2019, Statement of Interpretation on Articles 8 § 4 and 8 § 5 (General Introduction, pp. 5–​6). 136 Ibid. 137 Ibid., p. 5. 138 Ibid.

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Regarding the definition of pregnant women, women who have recently given birth and women nursing their infants, is referenced to Directive 92/​85/​ eec (Article 2),139 which admittedly inspired the interpretation of Article 8 of the Charter.140 Besides, as previously mentioned, the ecsr takes account of the law of the EU when interpreting the Charter.141 Yet, although the Directive refers to “national legislation and/​or national practice” for the purpose of the definition, this reference cannot narrow the personal scope of Article 8 § 4. For instance, it would not be admissible for such reference to exclude women having recently given birth who do not breastfeed.142 The problem regarding the definition of “women having recently given birth” was addressed in the context of 8 § 5 of the Charter. The ecsr considered that it is up to the States’ Parties to define it in national law. However, women who do not breastfeed but have recently given birth must be protected. Consequently, in 2011, Bulgarian legislation was declared as non-​conform to Article 8 § 5 of the Charter because women who had recently given birth, but were not breastfeeding, did not benefit from the possibility of adjustments to their working conditions, nor from temporary reassignment to an adequate post.143 With regard to these categories of women, all who have a paid employment are protected, including civil servants. Only self-​employed women are excluded.144 Night Work Definition B The definition of the night work frame is left to national laws. Similarly to what we have seen for breastfeeding breaks, here too the ecsr has acknowledged a variety of solutions. 139 “For the purposes of this Directive: (a) pregnant worker shall mean a pregnant worker who informs her employer of her condition, in accordance with national legislation and/​ or national practice; (b) worker who has recently given birth shall mean a worker who has recently given birth within the meaning of national legislation and/​or national practice and who informs her employer of her condition, in accordance with that legislation and/​ or practice; (c) worker who is breastfeeding shall mean a worker who is breastfeeding within the meaning of national legislation and/​or national practice and who informs her employer of her condition, in accordance with that legislation and/​or practice”. 140 Digest of the case law of the ecsr, December 2018, pp. 49–​50; Explanatory Report to the European Social Charter (Revised), Strasbourg, 3.v.1996, p. 6. 141 Digest of the case law of the ecsr, December 2018, pp. 49–​50. 142 ecsr, Conclusions 2011, Bosnia and Herzegovina. ecsr, Conclusions 2017, Federation of Bosnia and Herzegovina. See, also, Csilla Kollonay-​Lehoczky, cit., p. 323. 143 ecsr, Conclusions 2011, Bulgaria. 144 Digest of the case law of the ecsr, December 2018, p. 119, referring directly to article 8 § 5.

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For instance, the ecsr has accepted the following night work frames: between 8.00 pm and 5.00 am (in the summer and 6.00 am during winter);145 between 10.00 pm and 6.00 am;146 between 8 pm and 7 am;147 between 8 pm and 6 am.148 C Night Work Regulation In order to comply with the goals of Article 8 § 4, night work does not need to be prohibited for pregnant women, women who have recently given birth and women nursing their infants, it only needs to be regulated in order to limit the adverse effects on the health of these women.149 That is the reason why Federation of Bosnia and Herzegovina legislation was declared by the ecsr in non-​conformity with Article 8 § 4 of the Charter, since night work of pregnant women, women having recently given birth and women nursing their infants was not regulated.150 According to the ecsr, night work shall only be authorised where necessary, “having due regard to working conditions and the organisation of work in the firm concerned”.151 Furthermore, domestic laws must stipulate special conditions for night work of pregnant women, women who have recently given birth and women nursing their infants, such as “prior authorisation by the Labour Inspectorate (when applicable), prescribed working hours, breaks, rest days following periods of night work, the right to be transferred to daytime work in case of health problems linked to night work, etc”.152 For example, regarding Armenian law, the ecsr began by issuing a declaration of non-​conformity and, after Armenia amended its legislation, it considered that it was in conformity with the Charter. In fact, in its 2011 Conclusions, the ecsr found that employees working at night were subject to a pre-​entry medical examination and periodical medical examinations. The ecsr thought it was crucial to know whether the compulsory medical examination had to take place not only upon recruitment, but whenever a pregnant woman, a woman having recently given birth, or breastfeeding her child was assigned to night work, and whether those periodic medical check-​ups were also 1 45 146 147 148 149 150 151 152

ecsr, Conclusions 2011, Albania. ecsr, Conclusions 2011, Armenia, and Conclusions 2015, Latvia. ecsr, Conclusions 2011, Portugal. ecsr, Conclusions 2015, Austria. ecsr, Conclusions 2015, Georgia; Conclusions 2011, Bosnia and Herzegovina. Conclusions 2017, Federation of Bosnia and Herzegovina. Digest of the case law of the ecsr, December 2018, p. 119. ecsr, Conclusions x-​2 (1990), Statement of Interpretation on Article 8 § 4; Digest of the case law of the ecsr, December 2018, p. 119.

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mandatory afterwards. Otherwise, Armenian legislation could not be declared as conforming with Article 8 § 4 of the Charter.153 In 2017, after being informed that Armenian law had been amended in order to require a medical exam and the submission of its results to the employer in all cases where a pregnant woman or a woman taking care of a child under the age of three has to perform night work, when an employee performing night work becomes pregnant, or when she returns to night work following maternity leave, the ecsr concluded with a conformity statement.154 D Exemption from Night Work If pregnant women, women who have recently given birth and women nursing their infants are exempted from performing night work, it is necessary, in order to ensure non-​discrimination on the grounds of gender, to ensure that these women are not placed in a less advantageous situation due to this exemption (see above point iv.A).155 Following similar criteria to the ones defined in Article 7 of Council Directive 92/​85/​e ec,156 the ecsr required some positive measures. Firstly, “an adjustment of their working conditions in order to ensure the required level of the protection of health”, which can imply transfer to daytime work, including another work post. Secondly, if such transfer is not possible, they should be granted a leave from work. In both cases, their income shall not be affected. Therefore, “during the protected period, she is entitled to her average previous pay or provided with a social security benefit corresponding to 100% of her previous average pay”. Additionally, she has the right to return to her

1 53 ecsr, Conclusions 2011, Armenia. 154 ecsr, Conclusions 2017, Armenia. 155 ecsr, Conclusions 2019, Statement of Interpretation on Articles 8 § 4 and 8 § 5 (General Introduction, pp. 5–​6). 156 “1. Member States shall take the necessary measures to ensure that workers referred to in Article 2 are not obliged to perform night work during their pregnancy and for a period following childbirth which shall be determined by the national authority competent for safety and health, subject to submission, in accordance with the procedures laid down by the Member States, of a medical certificate stating that this is necessary for the safety or health of the worker concerned. 2. The measures referred to in paragraph 1 must entail the possibility, in accordance with national legislation and/​or national practice, of: (a) transfer to daytime work; or (b) leave from work or extension of maternity leave where such a transfer is not technically and/​or objectively feasible or cannot reasonably be required on duly substantiated grounds”.

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previous post when the health reasons disappear or at the end of the protection period.157 For example, in its 2015 Conclusions, the ecsr noted that in Montenegro employees who were pregnant or had a child under three years old could not perform night work. Exceptionally, an employed woman with a child over two years of age might do it, but only if she accepts it in a written statement. In this scenario, the ecsr asked for clarifications about what happens to women who do not perform night work, in particular if they are transferred to daytime work until their child is three years old, and what rules apply if such transfer is not possible.158 v

Article 8 § 5 –​Employment of Pregnant Women, Women Who Have Recently Given Birth and Women Nursing Their Infants in Unsuitable Work, by Reason of Its Dangerous, Unhealthy or Arduous Nature

A Scope and Purpose Article 8 § 4 (b) of the Charter of 1961 determined that: “With a view to ensuring the effective exercise of the right of employed women to protection, the Contracting Parties undertake to prohibit the employment of women workers in underground mining, and, as appropriate, on all other work which is unsuitable for them by reason of its dangerous, unhealthy, or arduous nature”. This means that, in its origin, the prohibition to perform dangerous, unhealthy, or arduous work was addressed to all women. However, in its Statement of interpretation on the old Article 8 § 4, the ecsr stated that the prohibition of employment of women in the above-​mentioned occupations should be limited “to the sole cases where this is necessary, in particular to protect motherhood, notably pregnancy, confinement and the postnatal period, as well as future children”.159 Similarly to what happened with Article 8 § 4 (a), the prohibition’s scope of application was amended in the Revised Charter. Article 8 § 4 (b) has given place to Article 8 § 5, establishing that its prohibition only applies to pregnant women, women who have recently given birth or who are nursing their infants. The purpose is to protect the employment rights of these women, in particular 157 ecsr, Conclusions 2019, Statement of Interpretation on Articles 8 § 4 and 8 § 5 (General Introduction, pp. 5–​6). 158 ecsr, Conclusions 2015, Montenegro. 159 ecsr, Conclusions x-​2, Statement of Interpretation on Article 8 § 4.

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to safeguard their (and their foetuses/​children) safety and health,160 avoiding sex discrimination issues. As referred above, the ecsr issued a common statement of interpretation on both Articles 8 § 4 and 8 § 5, according to which safe and healthy working conditions must include “protection against less favourable treatment due to pregnancy and maternity”. Therefore, “the non-​provision of specific rights aimed at protecting the health and safety of a mother and a child during pregnancy and maternity, or the erosion of their rights due to special protection during such a period are also direct gender discrimination”.161 The personal and material scope of Article § 8.5 is identical to that of Article 8 § 4, to which we refer. The personal scope of the underground mining work prohibition will be addressed in the following point. B Prohibited Activities Under Article § 8.5 of the Charter, pregnant women, women who have recently given birth and women who are nursing their infants must be prohibited from working in underground mining. The scope, as we have seen, is to protect the safety and health of women and their foetuses/​children. Therefore, it is not necessary to prohibit those categories of women from performing all kinds of works related to underground mining. What must be prohibited is performing the extraction work. Consequently, it is the ecsr’s opinion that the provision does not apply to women who: a) “occupy managerial posts and do not perform manual work”; b) “work in health and welfare services”; and c) “spend brief training periods in underground sections of mines”.162 Besides work in underground mining, Article 8 § 5 also refers “all other work which is unsuitable by reason of its dangerous, unhealthy or arduous nature”, and which includes activities which imply exposure to lead, benzene, ionizing radiation, high temperatures, vibration, or viral agents.163 Nevertheless, this is not a closed list. States’ Parties must ensure a high level of protection against all known hazards to the health and safety of women, prohibiting or strictly regulating all activities that may increase these hazards. These activities can

160 ecsr, Conclusions 2019, Statement of Interpretation on Articles 8 § 4 and 8 § 5 (General Introduction, pp. 5–​6). 161 Ibid. See also supra iv. Article 8 § 4. 162 Digest of the case law of the ecsr, December 2018, p. 119; Conclusions 2015, Hungary. 163 Digest of the case law of the ecsr, December 2018, p. 119.

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either be totally prohibited or only strictly regulated. It will depend on the risks posed by the work.164 For example, the ecsr considered that the legislation of Bosnia and Herzegovina was not in conformity with Article 8 § 5 of the Charter, because it did not prohibit or strictly regulate the work of pregnant women, women who are nursing their infants and women who have recently given birth in dangerous activities such as those involving exposure to lead, benzene, ionizing radiation, high temperatures, vibration, or viral agents.165 Georgia’s domestic law was also declared as non-​conform with Article 8 § 5, since, although it prohibited the employment of pregnant or nursing women in dangerous, unhealthy, and arduous work, it had adopted no detailed regulation to materialize that protection.166 C Measures of Protection Whenever pregnant women, women who have recently given birth and women nursing their infants perform an activity that raises risks to their, or to their child’s, safety and health, they must be reassigned to another hazard-​free work post. In line with EU law, the measures to be adopted in this regard are the same as mentioned in the subject of night work exemption (see point iv.D). In order to ensure non-​discrimination on the grounds of gender, these women cannot be placed in a less advantageous situation due to such reassignment.167 Therefore, this modification cannot imply a loss of pay. If reassignment is impossible, women must be entitled to paid leave. Also in this situation, their income cannot be affected: “during the protected period, she is entitled to her average previous pay or provided with a social security benefit corresponding to 100% of her previous average pay”.168 As soon as women lose their special condition, they have the right to return to their previous employment/​work post.169

164 Digest of the case law of the ecsr, December 2018, p. 119; Conclusions 2017, Azerbaijan; Conclusions 2017, Georgia. 165 ecsr, Conclusions 2015 and 2019, Bosnia and Herzegovina. 166 ecsr, Conclusions 2017 and 2019, Georgia. 167 ecsr, Conclusions 2019, Statement of Interpretation on Articles 8 § 4 and 8 § 5 (General Introduction, pp. 5–​6). 168 Ibid. 169 Digest of the case law of the ecsr, December 2018, p. 119; ecsr, Conclusions 2007, Albania; Conclusions 2015, Azerbaijan, Russia and Serbia; Conclusions 2017 and 2019, Georgia.

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Concluding Remarks

As stated above, the protection of pregnant women, women who have recently given birth and breastfeeding women within the labour market is the outcome of a virtuous circle of reciprocal interactions between the esc (rev), the United Nations Treaties (particularly, under ilo) and EU law.170 It is likely that this reciprocity and synergy will continue to foster broader interpretations of Article 8 of the Charter. In fact, EU law is evolving from a traditional approach to maternity issues towards an approach that also includes paternity issues and, more broadly, reconciliation of family and working life topics.171 After recognizing that maternity provisions involve not only a problem of women’s health and safety, but a challenge to gender equality, the new EU legislation is progressing towards an integrated approach of maternity and paternity protection and balanced reconciliation of work and family life as a material requirement for gender equality at work.172 This integrated approach can be perceived in Article 33 § 2 of the European Charter of Fundamental Rights, which mentions maternity and paternity rights and the right to the reconciliation of family and working life.173 Furthermore, the recent Directive (EU) 2019/​1158 on work-​life balance for parents and carers174 –​one of the first initiatives aimed at promoting the European Pillar of Social Rights, specifically its principles 2 (Gender equality) and 9 (Work-​life balance), as well as part of the development of the EU Strategic Engagement for Gender Equality (2016–​2019) –​adopts a broader scope, as well as the explicit formalization, in Article 1, of the link between reconciliation and equality between men and women with regard to labour market opportunities and treatment at work. Additionally, the evolution of the EU concept of worker,175 also concerning Directive 92/​85/​ 170 1 71 172 1 73 174 175

Csilla Kollonay-​Lehoczky, cit., p. 325, speaks about “a triangular and constant flow of interactions”. Maria do Rosário Palma Ramalho, cit., p. 11. This “integrated approach” is explained and upheld by Maria do Rosário Palma Ramalho, cit., pp. 11 ff. Maria do Rosário Palma Ramalho, cit., p. 12. This new Directive builds on the rules laid down in the previous Directive 2010/​18/​EU of 8 March implementing the revised Framework Agreement on parental leave concluded by businesseurope, ueapme, ceep and etuc and repealing Directive 96/​34/​e c. See, namely, Stefano Giubboni, “La Nozione Comunitaria di Lavoratore Subordinato”, in Silvana Sciarra/​Bruno Caruso (eds.) Il Lavoro Subordinato, Turino, Giappichelli Editore, 2009, pp. 35 ff.

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eec,176 may influence the personal scope of Article 8 of the Charter. Remembering what has been said regarding the ecsr taking account of EU law when interpreting the Charter,177 this evolution can impact its case law regarding Article 8, challenging the ecsr with new interpretational perspectives.

1 76 E.g. cjue, 11 November 2010, Dita Danosa, C‑232/​09. 177 Digest of the case law of the ecsr, December 2018, pp. 49–​50.

article 9

The Right to Vocational Guidance Iulia Boghirnea and Ioana Nely Militaru With a view to ensuring the effective exercise of the right to vocational guidance, the Parties undertake to provide or promote, as necessary, a service which will assist all persons, including the handicapped, to solve problems related to occupational choice and progress, with due regard to the individual’s characteristics and their relation to occupational opportunity: this assistance should be available free of charge, both to young persons, including schoolchildren, and to adults. i

General Presentation: Relationship to other International Instruments and to Other Provisions of the Charter1

Vocational guidance (Article 9) and vocational training (Article 10) are the two key rights in the Charter that are meant to establish a harmonious and mutually beneficial link between the workforce and the constantly changing labour market’s needs and increasing standards. Their aim is to improve the individual’s “employability” which, according to Article 2 letter d) of the ilo Human Resources Development Recommendation No. 195/​2004, is relating to the “portable competencies and qualifications that enhance an individual’s capacity to make use of the education and training opportunities available in order to secure and retain decent work, to progress within the enterprise and between jobs, and to cope with changing technology and labour market conditions”. As the Committee pointed out in 1969 during its first supervisory cycle, the right set out in the Article 9 of the 1961 Charter has been “a considerable innovation in the history of international labour law”,2 as for the first time, the vocational guidance was enshrined by an international treaty as a free-​standing, 1 The authors would like to thank Ms. Cristina Sâmboan for her valuable guidance and assistance. 2 ecsr, Conclusions i (1969), Statement of Interpretation on Article 9 (“Article 9 is a considerable innovation in the history of international labour law, this being the first time that there has been any international undertaking concerning vocational guidance; until now, the principle appeared in international law only through various recommendations”).

© Koninklijke Brill NV,

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fundamental social right doubled by a correlative obligation on behalf of the State Parties, and not just as a recommendable tool of employment policy anymore. Indeed, by that time, the main international instrument addressing vocational guidance was a recommendation adopted within the ilo framework in 1949 (the Vocational Guidance Recommendation No. 87/​1949), while spars references could be found in other ilo instruments, such as the Employment Service Convention No. 88/​1948 or the Employment Service Recommendation No. 83/​1948.3 Recommendation No. 87/​1949 was, on the other hand, the most comprehensive ilo instrument in the area, covering in a detailed manner various aspects related to vocational guidance –​from providing a definition of vocational guidance and setting its aims, principles and methods, to describing the concrete way of implementing vocational guidance policies by the states, laying down the criteria to be considered at the administrative level, tackling aspects regarding the suitable training for vocational guidance staff or the measures that should be taken in order to promote the continuous research and experiment in the vocational guidance’s methods. Recommendation No. 87/​1949 would have been repealed twenty-​six years after its adoption (see infra), but it served as a source of inspiration for the writing of Article 9 and for the way in which the Committee shaped its assessment criteria when it comes to the States’ compliance with Article 9’s provisions. Only later on, in 1975, a Convention on both vocational guidance and vocational training was adopted within the ilo framework, bringing to another level the states’ commitment in the two aforementioned areas.4 The Convention on Human Resources Development (C-​142/​1975) –​still in force –​is formulated in general terms, laying down the basic principles of vocational guidance and vocational training policies, but it was accompanied at the time of its adoption by the more detailed Recommendation No.150/​1975 which replaced both the above-​mentioned Recommendation No. 87/​1949 and the Recommendation No. 117/​1962 on vocational training, which contained more elaborated provisions. The new challenges brought about by the acceleration of the process of globalization and by the technological developments that occurred at the end of the 90s’ led to the adoption of a “new and more dynamic instrument”,5 3 Where vocational guidance is mentioned among other tasks of the free public employment service that has to be ensured by the State Parties. 4 Vocational training had been regulated also by a recommendation up until that time (Recommendation No. 117/​1962). 5 See the ilo Reference Paper The new ilo Recommendation 195; Human resources development: education, training and lifelong learning, ilo, cinterfor, 2006, p. 7.

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i.e. the Human Resources Development Recommendation No. 195/​2004 that superseded Recommendation No.150/​1975. While the new recommendation is focusing heavily on vocational training and education needs “in the modern world of work”,6 the provisions dedicated to vocational guidance have been significantly reduced and confined to a few general guidelines contained in the Article 15 (chapter viii), indicating the will to leave State Parties more room in choosing the methods of implementation. All in all, the basic principles and aims of the vocational guidance, as they had been established by Recommendation No. 87/​1949, were maintained by both the Convention No. 142/​1975 and the Recommendation No. 195/​2004. Outside the ilo framework, there are very few references to vocational guidance in other significant European or international instruments. The second paragraph of the Article 6 of the 1966 UN International Covenant on Economic, Social and Cultural Rights lists vocational guidance among other means of achieving the “full realization” of the right to work;7 as for the cfreu, while recognizing in the first paragraph of Article 14 (“right to education”) “the right to have access to vocational and continuing training” as a fundamental component of the right to education, it remains completely silent when it comes to vocational guidance.8 As already mentioned, the right provided by the Article 9 of the Charter is closely linked to the right to vocational training (Article 10) and they were both taken as such, without change, by the revised European Social Charter. While through education and vocational training people gain and improve their knowledge and their work skills, thus becoming more capable to successfully find a satisfactory place in the working environment according to their own interests and aspirations, through vocational guidance individuals are assisted with professional help to identify their creative potential and to find the best

6 Ibid., p. 8. 7 According to Article 6 of icescr, “1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. 2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual”. 8 EU law in this area takes the form of guiding policy only (see for instance the guideline Investing in career guidance, revised edition 2021, elaborated by Cedefop, European Commission, etf, ilo, oecd, unesco, available at: https://​www.etf.eur​opa.eu/​en/​publi​ cati​ons-​and-​resour​ces/​publi​cati​ons/​invest​ing-​car​eer-​guida​nce).

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ways to develop it and to capitalize on it, via education or through work opportunities, based on the characteristics and necessities of the labour market and the general needs of society. Investing in human resource development is beneficial for both the beneficiaries and the state, since more people are educated, well trained and well informed regarding the opportunities and necessities provided by the labour market, the better the chances for full employment and sustained economic growth at the national level.9 They are both also strongly connected to the right to work, since their ultimate goal is to enhance the balance between the labour market’s requirements and the labour supply by improving and refining what Simon Deakin calls the labour capacity10 of the natural persons engaged in the pre-​employment and employment dynamic, thus increasing their ability to freely choose and successfully find an occupation suited to their particular skills and interests –​which represents, basically, the very essence of the right to work. Not surprisingly, the fourth paragraph of the Article 1 of the Charter (the right to work) overlaps the provisions of Article 9 and Article 10,11 inasmuch as it presents vocational guidance and vocational training among the State Parties’ main tools to ensure the effective exercise of the right to work. As a consequence, despite none of these two articles being part of the so-​called ‘hard-​core’ of the Charter, State Parties may come under scrutiny when it comes to the obligations to ensure vocational guidance and vocational training via Article 1§4.12 However, the Committee made clear that the material scope of Article 9 (and Article 10) is broader than “the general aspects” covered by Article 1§4, the latter being complemented by the wider range of “more specific rights” contained in the formers’ provisions.13 As a consequence, if a State Party has accepted the provisions of Article 9, no further examination is necessary under 9

10 11 12 13

“(…) education, training and lifelong learning are fundamental and should form an integral part of, and be consistent with, comprehensive economic, fiscal, social and labour market policies and programmes that are important for sustainable economic growth and employment creation and social development” (Preamble of the Human Resources Development Recommendation No. 195/​2004). Simon Deakin, “The Right to Work”, in The European Social Charter and the Employment Relation, edited by Niklas Bruun, Klaus Lörcher, Isabelle Schömann and Stefan Clauwaert, Hart Publishing, Oxford, 2017, pp. 148–​149. According to Article 1 § 4: “With a view to ensuring the effective exercise of the right to work, the Parties undertake (…) 4. to provide or promote appropriate vocational guidance, training and rehabilitation”. If they choose to be bounded by Article 1 § 4 (Article 1 is on the list of the nine articles that represent the ‘hard-​core’ of the Charter). ecsr, Conclusions ii (1971), Statement of interpretation on Article 1§4; ecsr, Bulgaria, Conclusions 2007; ecsr, Netherlands Aruba Conclusions xx-​1 (2016).

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Article 1§4, while the converse is not implied.14 On the other hand, since Article 9 provisions set out a broader range of rights than Article 1§4, a conclusion of non-​conformity under one of these rights doesn’t necessary imply a similar outcome when it comes to the compliance with Article 1§4, unless the ground of non-​conformity is linked specifically to one of the general aspects covered by Article 1§4.15 On the other hand, if a State Party has not accepted the provisions of Article 9, the conformity of the situation is examined under Article 1§4, but only in respect of the general aspects covered by this provision.16 A similar reasoning is applied by the Committee –​yet, the other way around –​when it comes to the periodical assessments based on another text of the Charter related to Article 9, i.e. Article 15 § 1. Article 9 provisions partially overlap the first paragraph of Article 15. Article 15 deals with the rights of persons with disabilities, aiming to ensure their independence and social integration, while Article 15 § 1 refers specifically to these persons’ rights to guidance, education and training. Starting from the premise that Article 15 § 1 lays down a broader range of obligations, the Committee stated that, in the case of those State Parties that have accepted both Article 9 and Article 15 provisions, state’s obligation to provide persons with disabilities with vocational guidance services is assessed under Article 15 § 1 of the Charter.17 ii

Personal Scope

“All Persons …” A According to the very wording of Charter’s provisions, the Article 9’s beneficiaries are “all persons”, young and adults, “including schoolchildren”, who are assisted in order to solve their problems related to “occupational choice and progress”. As referred to in Article 3. of ilo Convention No. 142/​1975 on Human Resources Development, “Each Member shall gradually extend its systems of vocational guidance, including continuing employment information, with a view to ensuring that comprehensive information and the broadest possible guidance are available to all children, young persons and adults, including appropriate programmes for all handicapped and disabled persons”.18

14 15 16 17 18

ecsr, Conclusions 2008, Statement of Interpretation on the Article 1§4. Idem (see also the commentary of Article 1 § 4). ecsr, Conclusions 2003, Bulgaria. ecsr, Conclusions 2003, France. See supra, section i.

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Therefore, vocational guidance should reach not only employable persons, but also “all categories of students”.19 Since it aims to identify the creative potential of the individual, such an endeavor may start at a very young age, during the school years. The Committee pointed out that the right to vocational guidance must be guaranteed within both the school system (information on training and access to training) and the labour market (information on vocational training and retraining, career planning etc),20 with the States having to distinctively present their achievements in each of these two areas in their regular reports.21 Furthermore, within the labour market, vocational guidance services should be placed at the disposal not only of unemployed persons or people threatened by unemployment,22 but of employees also, such as persons who already have a job but wish to advance their careers or to change jobs.23 As for the sensitive groups (unemployed, people threatened with unemployment, school-​leavers etc.), they a fortiori require a special attention from the state when it comes to the right provided by Article 9.24 The Committee pays close attention to the special need for vocational guidance of the sensitive groups (such as job-​seekers, workers facing redundancy, miners, armed forces affected by cuts in personnel etc.),25 by requiring information from the State Parties with regard to the special guidance schemes designed for them.26 The Committee also made clear from the first Statement of Interpretation that the expression “as necessary” in the text of Article 9 should not be read in the sense of relieving the State Parties from their obligation in those periods with high level of employment, but in the sense of bounding them to make “a special effort” with regards to vocational guidance when faced with “a fairly high” level of unemployment27 (for instance, the regions more affected by unemployment require a larger number of guidance centres).28 In the same vein, it highlighted the special importance of vocational guidance at time of economic recession.29 19 20 21 22 23 24 25 26 27 28 29

ecsr, Conclusions i (1969), Statement of Interpretation on Article 9; Estonia, Conclusions 2007, 2008, 2012. ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 9. ecsr, Azerbaijan, Conclusions 2020. ecsr, Estonia, Conclusions 2007, 2008, 2012. ecsr, Moldova, Conclusions 2016, Russian Federation, Conclusions 2016. ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 9. ecsr, Conclusions xiii-​3 (1995), Portugal. Ibidem. ecsr, Conclusions i (1969), Statement of Interpretation on Article 9. ecsr, Conclusions iii (1973), xii-​2 (1992), xiii-​2 (1994), Italy. ecsr, Conclusions iv (1975), Statement of Interpretation on Article 9.

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“Handicapped …” B Article 9 expressly mentions “the handicapped” among its beneficiaries. As mentioned above, Article 9 provisions partially overlap Article 15 § 1. Article 15 (regarding the right of persons with disabilities to independence, social integration and participation in the life of the community) enshrines a range of specific rights in the benefit of people with disabilities, while its first paragraph deals precisely with the rights of these persons to vocational guidance, education and training. State Parties’ obligation to secure the enjoyment of the rights set forth in the Charter without discrimination on ground of health (inter alia) is already explicitly stipulated in the Preamble of the 1961 Charter and by Article E of Part 5, in the 1996 revised Charter. Hence, even in the absence of any specific reference to the persons with disabilities, State Parties that have accepted Article 9 provisions would have been obliged to ensure vocational guidance services for these persons under Article E of Part 5. Yet, their specific mentioning in the text of Article 9 indicates the highlighted importance the drafters of the Charter attached to the vocational guidance when it comes to people with disabilities, which requires special measures, specialised counsellors and additional efforts in order to be efficiently implemented.30 Not coincidentally, their situation is approached distinctively in the reports on Article 9. As for the State Parties that have accepted both Article 9 and Article 15 provisions, as shown above, their obligation to provide persons with disabilities with vocational guidance services is assessed under Article 15 § 1 of the Charter.31 C Nationals of the other Parties to the Charter As any other article of the Charter, Article 9 has to be read in conjunction with Paragraph 1, sub-​paragraph 1 of the Appendix to the esc (rev), which guarantees equal treatment to other States Parties’ nationals in regards to the exercise of the most of the rights enshrined by the Charter (Article 9 included), in so far as they lawfully reside or regularly work within the territory of another State Party.32 Similarly to the situation of persons with disabilities, the Committee 30

31 32

See, for instance, ecsr, Conclusions xxii-​1 (2021), Croatia; ecsr, Conclusions 2016, 2020, Bosnia and Herzegovina. See also Article 3 of ilo Convention No. 142/​1975 on Human Resources Development, which requires “(…) appropriate programmes for all handicapped and disabled persons”. ecsr, Conclusions 2003, France. According to Paragraph 1, sub-​paragraph 1 of the Appendix to the esc (rev), “Without prejudice to Article 12, paragraph 4, and Article 13, paragraph 4, the persons covered by Articles 1 to 17 [20 to 31 of esc (rev)] include foreigners only in so far as they are nationals of other [Contracting] Parties lawfully resident or working regularly within the territory of the [Contracting] Party concerned (…)”.

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places particular emphasis on the compliance with these provisions of the Charter when it comes to Article 9 provisions,33 mostly to prevent the risk of discrimination against the persons concerned. It repeatedly underlined that, under equal treatment principle, no length of residence is required from students and trainees residing in any capacity, or having authority to reside in reason of their ties with persons lawfully residing, on the territory of the Party concerned before starting training. To this purpose, any additional requirements such as length of residence34 or employment requirements35 and/​or the application of the reciprocity clause36 are contrary to the provisions of the Charter. The right to vocational guidance has to be guaranteed equally to nationals of all the other States Parties, including those that are not EU member countries nor part of the European Economic Area.37 Yet, this does not apply to students and trainees who, without having the above-​mentioned ties, entered the territory with the sole purpose of attending training, and is not a right under Article 9.38 In addition, the equal treatment has to be explicitly guaranteed in law.39 iii

Main Content (Material Scope)

State’s Substantive Obligations under Article 9 A According to the very text of Article 9, its purpose is to make compulsory for the States to provide a service, free of charge, that assists all persons to solve their problems related to occupational choice and with due regard to the individual’s characteristics and their relation to occupational opportunity.40 According to the Committee, the obligation laid down in Article 9 is a two-​ folded one: on one hand, the promotion and provision of guidance relating 33 34 35 36 37 38 39 40

ecsr, Conclusions iv (1975), Statement of Interpretation on Article 9. ecsr, Conclusions xvi-​2 (2003), Poland; ecsr, Conclusions 2008, Lithuania. ecsr, Conclusions 2016, Serbia. ecsr, Conclusions iv (1975), Statement of Interpretation on Article 9. ecsr, Conclusions 2007, Ireland; ecsr, Conclusions xxii-​1 (2021), Croatia. ecsr, Conclusions iv (1975), Statement of Interpretation on Article 9. Spain, Conclusions xix –​1 (2008); Moldova, Conclusions 2008. ecsr, Conclusions i (1969), Statement of Interpretation on Article 9; ecsr, Conclusions iv (1975), Statement of Interpretation on Article 9. Article 9 drew inspiration from the former ilo Recommendation No. 87/​1949’s definition of ‘vocational guidance’. According to Article i.1. of ilo Recommendation No. 87/​1949 on Vocational Guidance, “vocational guidance means assistance given to an individual in solving problems related to occupational choice and progress with due regard for the individual’s characteristics and their relation to occupational opportunity”.

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to education possibilities, and on the other hand, guidance services for vocational opportunities.41 Except for the unambiguous expression “free of charge” which leaves no room for interpretations, the obligation laid down by Article 9 is phrased in general terms, leaving States Parties the choice of the methods they consider the most appropriate in order to achieve its purpose. Although the text in itself doesn’t make reference to other specific requirements, based on the ilo relevant instruments in the area and the principle of effectiveness, the Committee fleshed out two additional obligations that are implied in the Article 9’s provisions. Hence, the vocational guidance services must be:



A) provided free of charge;42 B) provided by qualified staff (counsellors, trainers, psychologists, teachers etc.) that is required higher level education in pedagogy, sociology, psychology, career advising, experience in support and guidance, knowledge of specific legislation etc.;43 C) promoted by efficient means of dissemination.

The Committee has repeatedly drawn attention to the importance of disseminating information regarding both the way to access vocational guidance services and the guidance itself (which does not exclude, of course, the individual counselling as the main tool of vocational guidance), in order to ensure the effective exercise of the right provided by Article 9.44 The regular reports have to approach this particular obligation in a distinct section, and the states are called to employ various45 and efficient means of dissemination of the relevant information, with a view to reaching as many people as possible. 41 42 43

44 45

ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 9. In extremely rare and specific situations, the Committee accepts charging a fee for vocational guidance services (Netherlands, Conclusions xvi-​2, 2004). ecsr, Conclusions xvi-​2 (2004), Poland; ecsr, Conclusions 2007, Belgium; ecsr, Conclusions 2007, Moldova; ecsr, Conclusions 2012, Ireland; ecsr, Conclusions 2012, Azerbaijan; ecsr, Conclusions 2016, Ukraine; ecsr, Conclusions 2020 Hungary; ecsr, Conclusions 2020, Lithuania and others. (see also Article 15 letter c of the Human Resources Development Recommendation No. 195/​2004). ecsr, Conclusions i (1969), Statement of Interpretation on Article 9; ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 9; ecsr, Conclusions iv (1975), Italy; ecsr, Conclusions xiii-​2 (1994), Belgium. ecsr, Conclusions 2008, Malta. The national reports reveal a wide range of means serving this end (apart from the classical employment centres or agencies): websites, databases gathering job offers and demands, software packages for vocational guidance of youth located in general education institutions, printed material (folders, brochures, guides and books), vocational guidance events (seminars, presentations of professions, visits

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Non-​compliance with at least one of the above-​mentioned requirements or failure to provide information regarding the way in which they are fulfilled leads the Committee to the conclusion of non-​conformity with Article 9.46 It worth mentioning that the Committee also emphasises the importance of respecting the free will of vocational guidance’s beneficiaries, freedom of choice being the essence of fundamental rights. This aspect becomes especially relevant in the higher education system. The Committee has repeatedly asked the States if students can choose to follow or not the advice received through guidance and, in the case the advice is compulsory, which are the consequence in case of non-​compliance by the student.47 A Programmatic Right with a Progressive Realisation. Assessment Criteria. Minimum requirements The ultimate goal of the right provided by Article 9 is to ensure high quality vocational guidance services to all interested persons. On the other hand, the right to vocational guidance is a classic example of “claim-​right”, based exclusively on State’s positive obligations, the enforcement of which requires time, staging, elaborated policies, establishment of adequate administrative structure, budgetary resources and complex actions –​all of these adapted to the peculiar needs and resources of each country.48 As a first consequence, apart from the obligations mentioned at section iii.A. –​which articulate the substance of vocational guidance –​the States that accepted Article 9 are not expected to instantaneously reach the highest standards in terms of quality and quantity of vocational guidance services (to which the Charter aims), but to consistently and progressively approach them, while avoiding any regressive tendencies in the process (the principle of non-​regression). Another consequence of the unavoidable complexity attached to any endeavor meant to enforce Article 9 provisions is that the Charter does not impose specific ways or methods of organizing the vocational guidance services, leaving State Parties large room to make their choices according to their specific national `equation`. The regular reports reveal a wide range of options

B

46 47 48

to enterprises or job fairs, workshops), mobile centres, local radio and television, local press etc.. ecsr, Conclusions xi-​2 (1990), Italy; ecsr, Conclusions 2012, Moldova; ecsr, Conclusions 2016, Slovak Republic. ecsr, Conclusions xvi-​2 (2004), Greece; ecsr, Conclusions xvi-​2 (2004), Netherlands; ecsr, Conclusions 2007, Moldova; ecsr, Conclusions 2008, Estonia. See also Article 1 § 1–​3 of the ilo Convention on Human Resources Development C-​142/​ 1975.

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when it comes to the national policies in the area, that may vary considerably, from the way of organization or the distribution of functions, to the sources of financing or the actors involved (private bodies, ngo s, social partners, regional authorities etc.). Yet, as the Committee has repeatedly stated, the aim and purpose of the Charter as a human rights protection instrument is to protect rights not merely theoretically, but also “so as to give life and meaning to the fundamental social rights”.49 In that respect, States’ efforts must be real and effective in order not to reduce the right to vocational guidance to a simple text, constantly aiming to approach its standards as much as possible. Therefore, although the Committee presumes the gradually achievement of Article 9 provisions, without enforcing certain percentages or certain numbers of beneficiaries to be reached, and it does not interfere in the state’s strategies related to vocational guidance, in order to conclude the conformity with the Charter it still needs proofs that the States:

–​ are consistently and effectively engaged on the path of improving both the quality and the quantity of the vocational guidance services (in accordance with the principle of non-​regression); –​ are maintaining some minimal standards in the process. Thus, the Committee constantly recalls that the budgetary resources allocated to this aim must be “adequate”, the number of the trained staff must be “sufficient”, while the vocational guidance services must reach a “significant” number of persons and that it is “aiming at reaching as many people as possible”.50 These requirements are evaluated by the Committee on a case-​to-​case basis, taking into consideration the specific situation of each State.

In order to figure out all these aspects, from the first supervisory cycle51 the Committee laid down its set of relevant assessing criteria, pointing out that it could not regard a Contracting State which have accepted this article as complying with its requirements unless the regular reports does not contain 49

50 51

ecsr, International Commission of Jurists (ICJ) v. Portugal, complaint no. 1/​1998, decision on the merits of 9 September 1999; ecsr, FIDH v. France, complaint no. 14/​2003, decision on the merits of 9 September 2004; ecsr, European Federation of National Organisations Working with the Homeless (FEANTSA) v. Slovenia, complaint no. 53/​2008, decision on the merits of 8 September 2009. ecsr, Conclusions 2016, 2020, Azerbaijan; ecsr, Conclusions 2016, Montenegro; ecsr, Conclusions 2016, 2020, Ukraine; ecsr, Conclusions 2020, Hungary. ecsr, Conclusions i (1969), Statement of Interpretation on Article 9.

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adequate information regarding the said criteria, i.e. (inter alia):52 1. the functions, organisation and operation of public and private vocational guidance services and measures to improve and co-​ordinate those services; 2. the financing of vocational guidance services, the size of their professional staffs and the number of people assisted by them. The mere failure to provide relevant data on one of these particular topics leads to conclusion of non-​compliance with Article 9 provisions.53 The “adequate” information consists mostly in figures and statistic data based on the specific situation of each country54 and must be provided separately for the labour market and education system.55 Such information is essential for the Committee in order to assess the consistency (principle of non-​regression), efficiency and the equitability of States’ policies in the field of vocational guidance –​in other words, their status and their progress in terms of quality and quantity of the vocational guidance services –​and thus to be able to conclude the conformity (or not-​conformity) with the Charter. For instance, based on the data provided in regards to the two aforementioned criteria, the Committee noted that in Italy there were only a few guidance centres in those areas with a “fairly high” level of unemployment or that despite the increased level of unemployment the public expenditure on vocational guidance had “sharply” fallen during the reference period.56 On other occasions, it also found regressing tendencies in terms of number of

52 “The Committee wished to point out that it could not regard a Contracting State which had accepted this article as complying with its requirements unless the State included in its report adequate information on the following: 1.The functions, organisation and operation of public and private vocational guidance services; 2. Measures to improve and co-​ordinate those services, including measures to assist handicapped persons; 3. Measures taken to promote social advancement through vocational guidance (including measures to inform the public); 4.The financing of vocational guidance services, the size of their professional staffs and the number of people assisted by them”. (ecsr, Conclusions i (1969), Statement of Interpretation on Article 9). As can be seen, some of the criteria refers to the states’ substantive obligations, while others are meant to assess the consistency and the efficiency of their efforts. 53 ecsr, Conclusions 2003, Italy; ecsr, Conclusions 2016, 2020, Azerbaijan; ecsr, Conclusions 2016, Belgium; ecsr, Conclusions 2016, Moldova; ecsr, Conclusions 2012, 2016, Slovak Republic; ecsr, Conclusions 2016, Ukraine; ecsr, Conclusions 2020, Hungary; ecsr, Conclusions xxii-​1 (2021), Germany. 54 For instance, the Committee required Belgium to provide separate data for each of the competent entities at federal, regional and/​or community level, given the distinct organisation of vocational guidance services between the French-​speaking community and the German-​speaking community (ecsr, Conclusions, 2016, Belgium). 55 ecsr, Conclusions xxii-​1 (2021), Germany. 56 ecsr, Conclusions iii (1973); xii-​2 (1992); xiii-​2 (1994), Italy.

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beneficiaries,57 persistent disproportionalities between the number of counsellors and the number of registered unemployed,58 uncovered industries by the vocational guidance services,59 uncovered categories of people,60 irrelevant allocated budgetary resources,61 etc..

Concluding Remarks

The right provided by Article 9 of the esc (rev) is a classic “claim-​right”, a social right based almost exclusively on state’s positive obligations of implementation,62 and the remarkable Committee’s case-​law on Article 9 as reflected in the regular assessments63 may serve as a good illustration of the mechanisms through which such a complex right can be scrutinised and enforced –​in other words, of its justiciability. Not in the least, it worth mentioning that the European Social Charter is the only international (European) instrument that recognized explicitly the vocational guidance’s statute of fundamental right.

57 58 59 60 61 62

63

ecsr, Conclusions xiv-​2 (1998), Finland; ecsr, Conclusions xvi-​2 (2004), Austria; ecsr, Conclusions 2007, Moldova. ecsr, Conclusions 2016, Serbia; ecsr, Conclusions 2020, Bosnia and Herzegovina. ecsr, Conclusions xix–​i (2008), Spain. ecsr, Conclusions 2007, Estonia; ecsr, Conclusions xxii–​i (2021), Croatia. ecsr, Conclusions 2020, Ukraine. For a detailed analysis of the application of the “stratified obligations” –​respect, protection, implementation –​in relation to all human rights, see Gregor T. Chatton, L’harmonisation des pratiques jurisprudentielles de CEDH et du CEDS: une évolution discrète, in Christine Chappuis, Bénédict Foëx, Thomas Kadner Graziano (eds.), L’harmonisation internationale du droit, Schulthess Médias Juridiques SA, Geneva, 2007, pp. 49–​60. There have been no collective complaints based on Article 9 up to this date.

article 10

The Right to Vocational Training Maria Giovannone





With a view to ensuring the effective exercise of the right to vocational training, the Parties undertake: 1 to provide or promote, as necessary, the technical and vocational training of all persons, including the handicapped, in consultation with employers' and workers' organisations, and to grant facilities for access to higher technical and university education, based solely on individual aptitude; 2 to provide or promote a system of apprenticeship and other systematic arrangements for training young boys and girls in their various employments; 3 to provide or promote, as necessary: a adequate and readily available training facilities for adult workers; b special facilities for the retraining of adult workers needed as a result of technological development or new trends in employment; 4 to provide or promote, as necessary, special measures for the retraining and reintegration of the long-​term unemployed; 5 to encourage the full utilisation of the facilities provided by appropriate measures such as: a reducing or abolishing any fees or charges; b granting financial assistance in appropriate cases; c including in the normal working hours time spent on supplementary training taken by the worker, at the request of his employer, during employment; d ensuring, through adequate supervision, in consultation with the employers' and workers' organisations, the efficiency of apprenticeship and other training arrangements for young workers, and the adequate protection of young workers generally.

Article 10 of the revised Charter enshrines the right to vocational training, setting out the areas of action by States to ensure its effective exercise. In short, States undertake to: (i) ensure or encourage technical and vocational training for all persons (Article 10 § 1), (ii) ensure or encourage a system of apprenticeships and other on-​the-​job training tools for young people (Article 10 § 2), (iii) adopt or encourage measures for the vocational training and re-​education of

© Koninklijke Brill NV,

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adults (Article 10 § 3) and reintegration of the long-​term unemployed (Article 10 § 4), (iv) encourage full utilisation of resources through incentive measures and (v) include training required by the employer in normal working hours and mechanisms for monitoring effectiveness (Article 10 § 5). In order to cope with the rapid obsolescence of workers’ knowledge and skills, the technical progress, the digitalisation of production and work, and the ecological transition have required a rethink of training policies, especially in the sense of lifelong learning. In this sense, vocational training, which has always been an instrument of cultural growth, has played a distinctly functional role. In particular, Vocational and Educational Training (vet) is increasingly perceived by companies as an investment in human capital for competitive purposes. At the same time, the State has seen it as an appropriate tool to support the rapid absorption of labour demand. This approach also considers the peculiarities of today’s labour market, characterised by job instability and frequent occupational transitions. In this context, vocational training represents a concrete social protection tool to support both periods of transition and the unemployed searching for stable and quality work.1 Indeed, especially since the 2000s, EU employment strategies have actively focused on the efficient functioning of vocational training systems designed to combat unemployment and make Europe “the most competitive and dynamic knowledge-​based economy in the world”.2 The structure of Article 10 of the Charter is fully in line with the mercantilist approach. From the outset, this approach also underpins the right to work in Article 1, understood above all as the right of access to the labour market. Thus, if the right to work mainly protects labour capacity,3 vocational training can only be conceived as a functional tool to increase this commodity owned by the worker. It is no coincidence that, in a logic including both prevention and protection, Article 10 focuses above all on guaranteeing vocational training for the most vulnerable subjects of the labour market.

1 On vocational training as an instrument of social protection, especially in the context of green transitions, Maria Giovannone, “Le nuove dinamiche della contrattazione collettiva per la Just Transition: prospettive regolative per la convergenza tra interessi economici, sociali e ambientali”, Rivista Giuridica del Lavoro e della Previdenza Sociale, No. 4, 2021, pp. 637–​658; Maria Giovannone, “Perspectives de régulation des liens entre travail et environnement dans l’UE et en Italie”, Revue de Droit Comparé du Travail et de la Sécurité Sociale, No. 1, 2021, pp. 58–​71. 2 European Council, Presidency Conclusions, Lisbon European Council, 23 and 24 March 2000. 3 Simon Deakin, “The Right to Work”, in Niklas Bruun, et al. (eds.), The European Social Charter and the Employment Relation, 2019, p. 148–​151.

320 Giovannone If this is the only way to interpret vocational training, there is a risk that it will be conceived as being exclusively at the service of the functioning of the market, as some doctrine has pointed out.4 However, it is possible to mitigate this interpretation by pointing out that training generates a “shared value”5 both in economic and social impact. Indeed, access to vocational training represents a social value (cultural, civil, etc.) for the community and an economic value for the business competitivity stimulated through the enhancement of human capital.6 i

Vocational Training in Other International Instruments

The adoption of vocational training measures and programmes is a cornerstone for the full realisation of the right to work as enshrined in Article 6 of the International Covenant on Economic, Social and Cultural Rights (icesr). Thus, the icesr does not establish an autonomous right to vocational trai­ning. Rather than oriented towards the fulfilment of the individual and the fight against social marginalisation, vocational training is an instrument for pursuing “full and productive employment” according to a markedly economic logic. On the other hand, the right to vocational training is incorporated in the ilo Constitution and the ilo regulatory and recommendatory acts. In particular, Convention 140 (1974) on Paid Educational Leave requires Parties to plan and implement a policy to promote paid educational leave, while Convention 142 (1975) on Human Resources Development urges States Parties to establish a general, vocational and technical system of education. The ratio is different to that adopted by the icesr, through a fairer balance between economic and social interests. According to Article 3, vocational training is functional to both employment needs and the “human, social and cultural advancement of workers”. Thus, employment-​oriented training is conceived to pursue human and social objectives.

4 Aurora López-​Fogués, “The Discourses of Vocational Education and Training: a developmental response from a European perspective”, European Educational Research Journal, vol. 11, no. 4, 2012, pp. 558–​569. 5 Michael E. Porter, Mark R. Kramer, “The Big Idea: Creating Shared Value”, Harvard Business Review, 2011, vol. 89, No. 1–​2, pp. 62–​77. 6 Some quantitative surveys demonstration correlation between vocational training and business innovation. See Benoit Dostie, “The Impact of Training on Innovation”, ilr Review: The Journal of Work and Policy, Vol. 71, No. 1, 2018, pp. 64–​87.

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This balance was reformulated in the 2019 ilo Centenary Declaration. Through the “human-​centred” approach, pursuing of social justice places people’s aspirations and rights at the heart of policies for the future of work. Based on this guiding principle, training systems and the transition from training to work must ensure full employment and decent work opportunities (Part 2, A). EU competence for vocational training is based on Article 166 tfeu. Following the principle of subsidiarity, the EU reinforces and supplements the actions of the Member States, which remain responsible for the content and organisation of vocational training. Therefore, as in other social matters, the EU can adopt acts aimed at the functioning of the European labour market and the promotion of intra-​European mobility, in particular by stimulating regulatory cooperation and harmonisation between the Member States. As part of the fundamental instruments of the European Union, the Charter of Fundamental Rights of the European Union (cfreu) also enshrines the right to vocational and continuing training, albeit very generally (Article 14). The European Union has created two agencies at the institutional level, Cedefop (European Centre for the Development of Vocational Training) in 1975, and etf (European Training Foundation), which has been operational since 1994. Cedefop supports the development of EU policies on vocational education and training. The etf supports the EU’s neighbouring Countries in reforming their education, vocational training, and labour market systems. Within the (narrow) scope of action established by the Treaties, the European Union has intervened in vocational training since the 1960s.7 Most of the acts adopted within the competences attributed to the EU have a soft nature and a promotional and coordinating purpose. This is one reason why the vocational training systems of the EU Member States still suffer from significant regulatory and implementation inconsistencies. Decision (63/​266/​e ec) initially established the general principles for implementing a common policy in this field, orienting national policies towards lifelong learning. In fact, most EU efforts have been focused on the expendability of skills and experience gained through vocational training in the intra-​European labour market. Since the Lisbon Strategy of 2000, the European Union has tried to promote the harmonisation of national rules on vocational qualification, including certification of competences. Among the first acts in this sense are Decision 2241/​2004/​e c, which led to the establishment of europass, and Directive 2005/​36/​e c, which set out the rules on the recognition of regulated 7 For a reconstruction, Kathryn Telling, Martino Serapioni, “The Rise and Change of the Competence Strategy: Reflections on Twenty-​Five Years of Skills Policies in the EU”, European Educational Research Journal, vol. 18, No. 4, 2019, pp. 387–​406.

322 Giovannone professions between Member States. However, the continuing lack of coordination between Member States led the EU Parliament to adopt Resolution (2018/​C 458/​08), which urged the European Commission to improve the “comparability” of different professions among Member States. Going beyond regulated professions, the European institutions have given impetus to structuring adequate lifelong learning infrastructures by establishing the eqf (European Qualifications Framework), which was revised in 2017.8 This was brought about through Recommendation (2006/​962/​e c) and the coordination between national skills qualification systems for their expendability in the European labour market. Arguably, the design of the eqf represents the most obvious attempt to introduce market principles into the education sector.9 A series of recommendations followed to promote the improvement of national education and training systems10 in the face of continuing inconsistencies between Member States’ policies. More recently, the European Pillar of Social Rights (epsr), proclaimed in 2017, reaffirmed the right to vocational training. In particular, Principle 1 enshrines “the right to quality and inclusive education, training and lifelong learning in order to maintain and acquire skills that enable them to participate fully in society and manage transitions successfully in the labour market”. On reading the Principle, the social (social inclusion) and economic (functioning of the labour market) aims appear balanced. Finally, as part of the European Education Area project11 and the Strategic Framework on Education and Training (2021–​2030),12 launched in 2021, new impetus has been given to the theme by the economic and social recovery efforts following the Covid-​19 pandemic. These actions enhance the employment function of vocational education and training, especially considering the post-​pandemic economic crisis and the changes generated by the green and digital transition.

8 9 10

11 12

Council Recommendation (2017/​C 189/​03) (ojeu c 189/​15, 15.6.2017). In a critical sense, Pia Cort, “Stating the Obvious: The European Qualifications Framework is not at Neutral Evidence-​Based Policy Tool”, European Educational Research Journal, Vol. 9, No. 3, 2010, pp. 304–​316. In particular, Recommendation of the European Parliament and of the Council (2009/​ C 155/​01) (ojeu, c 155/​1, 8.7.2009); Recommendation of the European Parliament and of the Council (2009/​C 155/​02) (ojeu c 155/​11, 8.7.2009); Council Recommendation (2012/​ C 398/​01) (ojeu c 398/​1, 22.12.2012); Council Recommendation (2016/​C 484/​01) (ojeu c 484/​1, 24.12.2016); Council Recommendation (2018/​C189/​01) (ojeu c 189/​1, 4.6.2018). Commission Communication (com(2020) 625 final, Brussels, 30.9.2020). See also Council Recommendation (2020/​C 417/​01) (ojeu c 417/​1, 2.12.2020). Council Resolution (2021/​C 66/​01) (ojeu c 66/​1, 26.2.2021).

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Article 10 in the Revised Charter System

The current wording of Article 10 of the Charter results from several revisions. Initially, the right to vocational training was only included in Article 1 § 4 of the 1961 Charter, which has remained unchanged. However, it is worth noting that the first draft of 1955 included this right in Article 2, among the right to fair working conditions13 requirements. Furthermore, the Committee of Ministers introduced an autonomous Article into the Charter in 1959.14 Finally, the Revised Charter included paragraph 4 (that replace § 4 of 1961 Charter that become § 5 in Revised esc) to encourage the reintegration of the long-​term unemployed into the labour market through “special” vocational training measures.15 While revising the Charter, the Assembly made proposals to strengthen the mandatory nature of professional training and involve professional bodies in the consultation process provided for in Article 10 § 1. The proposals were rejected.16 The right to vocational training, which is expressly set out in Article 10, actually pervades the entire structure of the Charter. Article 1 § 4 lays down the general obligation of States to provide and promote adequate employment services, including training. In these terms, Article 10 is a lex specialis regarding Article 1. In addition, Article 7§ 4 states that vocational training requirements limit the employment of young people under 18. A very close link can be found between Article 10 § 1 and Article 15 § 1. Here, Article 15 § 1 constitutes a lex specialis of Article 10 § 1 insofar as it details the right to vocational training of persons with disabilities. Furthermore, the right to equal opportunities and treatment under Article 20 (gender equality) and Article 27 (for workers with family responsibilities) also applies explicitly in vocational training. The effective exercise of the right to protection against poverty and social exclusion (Article 30) is also guaranteed through promotional measures in vocational training. Finally, the right to vocational training,

13 14 15 16

Council of Europe, pace, (Former) Social, Health and Family Affairs Committee, Doc. 403, 26 October 1955. Council of Europe, pace, Doc. 927, 12 January 1959. Council of Europe, European Social Charter (revised) –​Explanatory Report, 1996. Council of Europe, Committee on the European Social Charter (Charte-​Rel), Final Activity Report, Appendix iv, Strasbourg, 19 October 1994. For a reconstruction of the drafting history, Karin Lukas, “Article 10. The Right to Vocational Training”, in Karin Lukas, The Revised European Social Charter. An Article by Article Commentary, Elgar Commentaries, Elgar, 2021, p. 151.

324 Giovannone mainly aimed at protecting workers, is also important for promoting social inclusion and combating discrimination. iii

Article 10 § 1: The Scope of Vocational Training

Article 10 § 1 clarifies in principle the field of the beneficiaries to the right to vocational training. This right must be guaranteed to “all persons”.17 The notion of vocational training is broad and covers general and vocational secondary education (so-​called initial training), university and non-​university higher education, and vocational training organised by public and private bodies, including continuing training, which is dealt with in § 3. The Committee has made it clear that both university and non-​university higher education is covered by the concept of vocational training insofar as it provides the knowledge and skills needed to exercise a profession.18 This assertion is in line with the interpretation given by the EU Court of Justice.19 The notion of vocational training has been espoused by European countries which, since the second half of the 20th century, have broadened their policies towards integrating education and training systems along a dead-​end pathway.20 In other words, the vocational training systems implemented by European States are oriented towards the concept of lifelong learning, which is embodied in “the blurring of the boundaries between education and training at all levels”,21 as the Committee pointed out. In detailing the duties of States (as signatory parties),22 these duties must guarantee all levels and forms of vocational training included in the concept above. These include secondary, general and vocational education, higher education, university and non-​university, and other forms of vocational training.23 The structure of vocational training must not involve non-​communicating levels of training. Above all, States must endeavour to design links between secondary and higher education. In order to guarantee access to higher levels 17 18 19 20 21 22 23

ecsr, Conclusions i (1969), Statement of Interpretation on Article 10 § 1; ecsr, Conclusions 2020, Montenegro. ecsr, Conclusions 2003, France. cjeu, 13 february 1985, Gravier, C-​293/​83. John West, The Evolution of European Union Policies on Vocational Education and Training, lakess Research Paper, No. 34, 2012, p. 19. Council of Europe, Digest of the case law of the European Committee of Social Rights, December 2018, p. 122. ecsr, Conclusions 2003, France; ecsr, Conclusions 2007, Ireland. ecsr, Conclusions 2007, Ireland.

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of education and the attainment of a qualification, States must introduce mechanisms for the recognition and validation of acquired knowledge and experience. Central importance is given to the functional link between vocational trai­ ning and the labour market. States must make secondary and higher education systems and qualifications useful for professional integration into the labour market. Knowledge and skills acquired through lifelong learning must also be made marketable in the labour market. In this regard, States should introduce mechanisms to recognise qualifications acquired in this context. States Parties must also facilitate access to higher, technical or university levels of education.24 Besides financial assistance measures (Article 10 § 5), tuition fees and educational costs should not create obstacles for candidates. Furthermore, educational structures facilitating the recognition of knowledge/​experience must be established, and the transition to different types and levels of education must be guaranteed. Despite the functional link with the labour market, Article 10 § 1 specifies that the only criterion that States must follow is that of “indivi­ dual aptitude”. Thus, the Charter highlights the need to balance the needs of the labour market and personal aspirations in order to support the full realisation of the individual beyond work. To assess the relevance and effectiveness of national measures, the Committee has developed a set of indicators.25 The main ones are, (i) the existence of the education and training system, (ii) total expenditure on education as a percentage of gdp (iii) total capacity (places-​to-​applicants ratio) and (iv), completion rate. Other indicators are used to assess the expendability of knowledge and experience in the labour market, including the employment rate of people with higher education qualifications and the time lag between obtaining qualifications and getting the first skilled job. More generally, Article i, Part 5, states that the commitments arising from Article 10 (§§ 1, 2, 3, 5) will be considered fulfilled as soon as these provisions are applied “to the great majority of the workers concerned”. In this regard, Article i§ 1 states that applying the provisions may be affected by legislation, regulation, collective bargaining (or a combination of these sources), or other appropriate means.

24 25

ecsr, Conclusions 2003, France; ecsr, Conclusions 2012, Ukraine. ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 10 § 1; ecsr, Conclusions 2020, Russian Federation.

326 Giovannone Equal treatment between nationals and foreigners regarding access to vocational training is established.26 As stated in the Annex to the Charter, “nationals of other Contracting Parties lawfully resident or working regularly within the territory of the Contracting Party concerned” are considered to be foreigners. Consequently, students and trainees who reside in the host State in any capacity whatsoever or who have permission to reside prior to the start of training, due to their links with legally resident persons, are not required to have a period of residence. Furthermore, the Committee has made it clear that these constraints do not apply to students/​trainees who have entered the national territory for the sole purpose of attending training courses. In this respect, the reciprocity clauses and the residence requirements are contrary to the provisions of the Charter.27 Article 10 § 1 and its interpretation by the Committee take specific categories of persons considered particularly vulnerable in the labour market into account. In primis, the right to vocational training for persons with disabilities is established. This is a very general formulation, given that the specific regu­ lation is contained in Article 15 of the Charter for those States that apply it. Second, special attention is paid to young people. The Committee has pointed out that priority should be given to young people as they are particularly affected by unemployment, especially in times of economic recession.28 The provisions give the signatory States a wide margin of discretion on their implementation. This implementation flexibility is clear from a literal reading of the Article since States may “provide or promote” technical and vocational training. Similarly, States are called upon to facilitate access to vocational trai­ ning through the possibility of reducing costs, establishing educational facilities, and facilitating the transition between levels of education. The Committee has frequently noted non-​compliance with Article 10(1) regarding national provisions deemed insufficient to ensure a link between acquired knowledge and marketability in the labour market.29

26 27 28 29

escr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 10 § 1. ecsr, Conclusions 2003, Slovenia. ecsr, Conclusions iv (1975), Statement of Interpretation on Article 10. ecsr, Conclusions 2016, Montenegro. In this regard, Karin Lukas, cit., p. 154.

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Article 10 § 2: Vocational Training for Young People

Article 10 § 2 provides for the guarantee of the effective exercise of the right to vocational training by young people. Generally, young people have the right to access apprenticeship and other training arrangements. More specifically, an apprenticeship may comprise training based on an employment contract between an employer and an apprentice for vocational training.30 In addition, other training arrangements may include school-​based vocational training.31 The Committee has drawn up several indicators to assess (i) the adequacy of apprenticeships32 (ii) the duration and time division between theoretical and practical learning (iii) the mechanisms for selecting apprentices and trainers; the training of trainers and (iv) and the termination of the apprenticeship contract. The principle of equal treatment of nationals and non-​nationals, as laid down in Article 10(1),33 also applies to vocational training for young people. The Committee has provided guidance on the content of learning, clarifying that apprenticeships and other training arrangements must, in any case, combine theoretical and practical training. Emphasis is again placed on the functional link with the labour market since training institutes must maintain close links with the world of work.34 Compliance with the provisions is assessed based on several indicators, including: the existence of apprenticeships and other training arrangements for young people; the quality of training; other indicators such as the number of students enrolled, the availability of places for applicants and total expenditure, public and private.35 The most common situations of non-​compliance relate to the lack of information about the apprenticeship system and the ineffectiveness of its operation.36

30 31 32 33 34 35 36

ecsr, Conclusions xix-​1 (2008), Slovak Republic. ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 10 § 2; ecsr, Conclusions 2003, Sweden. ecsr, Conclusions xvi-​2 (2003), Malta. ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 10 § 5 (i.e. Article 10 § 4 of the 1961 Charter); ecsr, Conclusions 2003, Slovenia. ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 10 § 2. ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 10 § 2. Conclusions 2016, Georgia; Conclusions 2016, Ukraine. On this point, Karin Lukas, cit., p. 155.

328 Giovannone v

Article 10 § 3: Continuing Vocational Training

To support job retention on the one hand and facilitate re-​entry into the labour market on the other, Article 10 § 3 establishes the right to continuing vocational training for adult workers and unemployed persons. However, continuing vocational training must be guaranteed for both employed and unemployed persons, including young people. While Article 1 § 1 prescribes appropriate measures to support unemployed persons in their search for work, Article 10 § 3 focuses on vocational training measures that pursue the same aim. Thus, the closest link is found with Article 1 § 4, which stipulates the obligation of States to provide vocational guidance and training for employed and unemployed persons.37 The subjective scope of application is broad, including the self-​employed. Equally broad is the notion of continuing education, which includes adult education.38 As far as measures for the benefit of persons in an employment relationship are concerned, States must set up structures for the training and retraining of adult workers.39 These measures are explicitly preventive in nature since they prevent the de-​skilling of active workers and, therefore, the weakening of their ability to compete in the labour market in the face of technological and economic change.40 Moreover, this field of action has become a priority to support the active ageing of the workforce in the face of the demographic changes that are affecting Europe.41 As mentioned above, vocational training must also be made available to the unemployed.42 The evaluation of national measures is based on the activation rate43 and the existence of legislation on training leave, its characteristics (duration, remuneration, access criteria),44 the distribution of the cost

37 ecsr, Conclusions 2003, Bulgaria. 38 Conclusions xiv-​2 (1998), Statement of Interpretation on Article 10 § 3. 39 escr, Conclusions xix-​1 (2008), Spain. 40 ecsr, Conclusions 2003, Italy. 41 Juhani Ilmarinen, Promoting active ageing in the workplace, EU-​OSHA, 2012; Mikkel Barslund (ed.), Policies for an Ageing Workforce. Work-​life balance, working conditions and equal opportunities, ceps, niesr, factage, Eurofound, 2019. 42 ecsr, Conclusions xix-​1 (2008), Hungary. 43 Or “the ratio between the annual average number of previously unemployed participants in active measures divided by the number of registered unemployed persons and participants in active measures”. Cfr. Council of Europe, Digest, cit., p. 125. 44 ecsr, Conclusions 2020, Cyprus; ecsr, Conclusions 2020, Malta; escr, Conclusions 2020, Serbia; ecsr, Conclusions 2020, Ukraine.

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of continuing training between public bodies (state and collective), and unemployment insurance systems, enterprises and households.45 Compliance indicators46 include: the types of continuing vocational education and training available in the labour market, the overall participation rate and gender balance, specific training measures for groups such as women, the percentage of workers involved in continuing training, and total expenditure. The Committee has recently focused its assessment on national measures to increase workers’ e-​skills to support their competitiveness in emerging labour markets.47 Here too, equal treatment of nationals and non-​nationals must be guaranteed according to Article 10 § 1.48 Furthermore, direct and indirect discrimination between categories of workers must also be avoided. In particular, the existence of direct costs and indirect burdens, such as the absence of expense relief, could limit access to vocational training, giving rise to discrimination between workers.49 vi

Article 10 § 4: Vocational Training for the Long-​Term Unemployed

Pursuant to Article 10 § 4, States must provide or promote special redevelopment and reintegration measures to counter long-​term unemployment. Long-​ term unemployment means the absence of work for at least twelve months.50 As mentioned above, paragraph 4 was introduced later to cope with long-​ term inactivity. However, this phenomenon is particularly difficult to curb because it is often linked to structural imbalances between labour supply and

45 46 47 48 49

50

ecsr, Conclusions 2003, Slovenia. ecsr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 10 § 3; ecsr, Conclusion 2020, Andorra; ecsr, Conclusions 2020, Lithuania. ecsr, Conclusions 2020, Latvia; ecsr, Conclusions 2020, Netherlands; ecsr, Conclusions 2020, Slovak Republic; escr, Conclusions 2020, Sweden; ecsr, Conclusions 2020, Turkey; ecsr, Conclusions xxii-​1 (2020), Denmark. ecsr, Conclusions iv (1975), Statement of Interpretation on Article 10 § 3; ecsr, Conclusions xvi-​2 (2003), Addendum, Ireland. ecsr, International Association Autism-​Europe (AIAE) v. France, compliant No. 13/​2002, decision on the merits of 4 November 2013, §§ 51–​52; ecsr, European Roma Rigts Centre (ERRC) v. Bulgaria, compliant No. 31/​2005, decision on the merits of 18 October 2006, § 40; ecsr, Associazione sindacale “La Voce dei Giusti” v. Italy, collective compliant No. 105/​ 2014, decision on the merits of 18 October 2016. Sul punto, Karin Lukas, cit., pp. 155–​156. ecsr, Conclusions 2003, Italy.

330 Giovannone demand.51 In this context, vocational training can help match labour supply and demand. The leading indicators for assessing the conformity of national measures include52 the types of training and retraining measures available in the labour market, the impact of the measures on reducing long-​term unemployment, the number of people involved, and the focus on young people.53 Non-​compliance has been detected in the presence of conditions to access vocational training and financial support, such as the presence of a job or employment assurance or the requirement of a minimum duration of residence.54 More recently, non-​compliance has been due to the inadequacy55 or actual lack56 of special measures for the retraining and reintegration of the long-​term unemployed. vii

Article 10 § 5: Guaranteeing Effective Access to Vocational Training

Article 10 § 5 sets out the complementary measures that the Parties must take to ensure effective access to vocational training. In short, States must:

51 52 53 54 55 56 57 58 59

1. reduce or abolish economic burdens in order to ensure that the professional training referred to in Article 10(1) is free, or provide for the gradual reduction of commissions. In general,57 and on this particular point,58 there is equal treatment for foreigners under the conditions set out in Article 10(1). Moreover, access to vocational training may depend heavily on financial assistance provided by States.59 Marco Biagi, “Recession and the labour market: training for flexibility –​The Italian case in a comparative perspective”, Comparative Labour Law Journal, vol. 15, no. 3, 1994, pp. 303–​320. ecsr, Conclusions 2012, Serbia; ecsr, Conclusions 2016, Malta; ecsr, Conclusions 2020, Andorra; escr, Conclusions 2020, Austria; ecsr, Conclusions 2020, Cyprus; ecsr, Conclusions 2020, Estonia. ecsr, Conclusions 2020, Lithuania. ecsr, Conclusions xiv-​2, Denmark; ecsr, Conclusions xxii-​1 (2020), Denmark. ecsr, Conclusions 2020, Montenegro. ecsr, Conclusions 2016, Serbia; ecsr, Conclusions 2020, Georgia; escr, Conclusions 2020, Turkey; ecsr, Conclusions 2020, Ukraine. ecsr, Conclusions 2003, Slovenia; ecsr, Conclusions 2020, Andorra; ecsr, Conclusions 2020, Austria. ecsr, Conclusions xvi-​2 (2003), United Kingdom; ecsr, Conclusions 2020, Cyprus; ecsr, Conclusions 2020, Malta. escr, Conclusions viii (1984), Statement of Interpretation on Article 10 § 5.

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60 61 62 63 64 65

331

2. provide financial assistance in appropriate cases. In this respect, all the requirements for financial assistance relating to vocational trai­ ning up to and including higher education are set out in Article 10 § 4.60 In fact, States are given a wide margin of discretion on the extent of such support. Financial assistance may be granted universally, or it may be means-​tested or allocated based on merit. However, a minimum standard of protection is imposed by which compliance with the provision is assessed: assistance must be available at least to individuals in need61 and must be adequate to overcome that need, considering above all the cost of living.62 The Committee provided guidance on the forms of financial assistance, clarifying that these may also consist of loans at reduced interest rates or scholarships. Compliance indicators include the amount of financial assistance and the number of beneficiaries.63 3. Include supplementary training carried out at the employer’s request during normal working hours. As mentioned above, supplementary training carried out by the employee at the employer’s request must be carried out during regular working hours and during the employment relationship (c). Supplementary training refers to training of any kind that is useful and related to the current employment in order to increase the worker’s skills in that particular work context. The term ‘during employment’, on the other hand, refers to supplementary training carried out by the employee during his employment with the same employer who requires the training.64 4. Ensure the effectiveness of learning, especially for younger people. Article 10(5) concludes with a further measure to guarantee young people’s effective exercise of vocational training. In fact, States undertake to guarantee the effectiveness of learning and other forms of training for young workers, as well as the adequacy of their general protection. This guarantee is ensured through consultation with employer and trade union organisations through adequate supervision.65 escr, Conclusions xiv-​2 (1998), Statement of Interpretation on Article 10 § 5; escr, Conclusions xvi-​2 (2004), Slovak Republic. ecsr, Conclusions xiii-​1 (1993), Turkey. ecsr, Conclusion xvi-​2 (2004), Slovak Republic. ecsr, Conclusions xiv-​2 (1998), Ireland. Council of Europe, Digest, cit., pp. 126–​127. escr, Conclusions xiv-​2 (1998), United Kingdom; ecsr, Conclusions 2016, Lithuania; ecsr, Conclusions 2020, Ukraine; ecsr, Conclusions xxii-​1 (2020), United Kingdom.

332 Giovannone viii

Critical Issues and Prospects for Implementation

Phenomenological surveys shed both light and shade on the implementation scenario. In particular, in the European panorama, a substantial lack of homogeneity persists in implementing vocational training policies. First of all, there are different models involving the public actor and collective bargaining to a greater or lesser extent. For example, social partners play a decisive role in Germany, while in France, public intervention prevails. In contrast, the United Kingdom has adopted a free-​market model with little public commitment.66 Moreover, although the States have incorporated the broad notion of vocational training into their policies, it is still largely confined to the school environment. However, it should not be overlooked that, in recent years, State efforts have concentrated on disseminating extracurricular training programmes, especially in the workplace, as well as through the more active involvement of the private and collective sector, to meet the needs of the labour market.67 It is well known that the main challenges lie in the effective implementation of vocational training policies. In this respect, Article 10 of the Charter probably gives slight emphasis to the role of the social partners, which is limited to consultation. Collective bargaining –​national, territorial and corporate –​can be a particularly useful source of regulation in this area, especially by linking the certification of skills, qualifications and the worker classification68 system and introducing contractual instruments geared to continuous training in company contexts,69 such as leave for training. For example, in this respect,

66

67

68 69

For a more comparative analysis, Andy Green, Tom Leney, Alison Wolf, Convergence and divergence in European education and training systems, London, University of London, Institute of Education, 1999; Wolf-​Dietrich Greinert, “European vocational training systems: the theoretical context of historical development”, in Wolf-​Dietrich Greinert, Georg Hanf (eds.), Towards a history of vocational education and training (VET) in Europe in a comparative perspective: proceedings of the first international conference October 2002, Florence, Volume i, The rise of national vet systems in a comparative perspective, Cedefop Panorama series no. 103, Luxembourg, Office for Official Publications of the European Communities, 2004; Marius R. Busemeyer, Christine Trampusch (eds.), The Political Economy of Collective Skill Formation, Oxford, Oxford University Press, 2012. Jörg Markowitsch, Günter Hefler, Future developments in Vocational Education and Training in Europe: Report on reskilling and upskilling through formal and vocational education training, jrc Working Papers Series on Labour, Education and Technology, no. 2019/​07, European Commission, Joint Research Centre (jrc), Seville, 2019. Philippe Méhaut, Christopher Winch, “The European Qualification Framework: skills, competences or knowledge?”, European Educational Research Journal, vol. 11, no. 3, 2012, pp. 369–​381. On the Italian, French and German examples, see Marco Biagi, cit., pp. 303–​320.

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the involvement of bargaining autonomy in the relevant regulatory policies could remedy non-​compliance with Article 10(3) of the Charter by those States that do not even provide for training leave.70 The need to tailor vocational training to production needs also calls for the adoption of instruments to promote investment by businesses themselves, including through tax incentives.71 Indeed, training is increasingly perceived as a shared responsibility between the State and business.72 In Europe, an instrument based on co-​responsibility between the public and private sectors is certainly represented by the apprenticeship scheme73 promoted by Article 10(2). Still, another critical point concerns the effective guarantee of national vocational training systems on the implementation side. In this regard, it is worth noting the correlation between the right to vocational training laid down therein and the obligation of States to establish and maintain efficient free employment services (Article 1 § 3 and § 4). It is no coincidence that the European Union also recommends that Member States address labour market challenges through training and retraining strategies and, in parallel, the strengthening of employment services.74 Finally, it is worth pointing out that the expendability of skills acquired through vocational training is ensured by methodologies for assessing results leading to the certification of skills, according to Article 10 § 1. In this respect, the European Union is concentrating –​with difficulty75 –​on facilitating the transnational mobility of workers. Another challenge relates to the ability of training policies to intercept those most in need, both in terms of entering and remaining in the labour market and their more general education and training deficits. Surveys, in particular, show that people with general education are more likely to receive lifelong 70

ecsr, Conclusions 2020, Malta; ecsr, Conclusions 2020, Serbia; ecsr, Conclusions 2020, Ukraine. 71 Florin Fainişi, George Gruia, “Comparative view on tax incentives for promoting educational programs and professional training in the European Union”, Contemporary Readings in Law and Social Justice, vol. 9, no. 2, 2017, pp. 245–​258. 72 Jose Luis Gil Y Gil, “Training in the Contract of Employment”, Comparative Labour Law & Policy Journal, vol. 41, no. 3, 2021, 659–​694. 73 Cedefop, Financing apprenticeships in the EU, Luxembourg, 2020. 74 Regulation (EU) 2021/​241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Facility, ojeu l 57/​17, 18.2.2021; Commission Recommendation (EU) 2021/​402 of 4 March 2021 on an effective active support to employment following the covid-​19 crisis (ease), ojeu l 80/​1, 8.3.2021. 75 On the implementation critical issues of European strategies, Christopher Winch, “Learning Outcomes: The Long Goodbye: Vocational Qualifications in The 21st Century”, European Educational Research Journal, 2021, pp. 1–​19.

334 Giovannone learning.76 The provisions of Article 10 of the Charter are therefore particularly modern, as they direct State efforts towards the inclusion of the most vulnerable, such as young people. The European Union is also committed to this, primarily through the involvement of neet s in training systems.77 Furthermore, in the context of vulnerable persons, the Committee’s eva­ luations reveal the need to strengthen the guarantees of equal treatment for foreign nationals, especially concerning adequate access to vocational trai­ ning systems through facilities. The Committee has found several cases of non-​compliance with Article 10 § 5 of the Charter, regarding the absence of equal treatment guarantees for access to financial assistance or the reduction of commissions,78 including the imposition of (direct and indirect) minimum periods of residence.79 The focus on the vulnerable connects the logic of employment promotion with the logic of prevention, since the involvement of these people in vocational training programmes mitigates the risk of labour polarisation that relegates less qualified workers to occupations with low wages and poor working conditions.80 In this sense, the correlation between labour market policies and the protection of workers’ rights is more evident.

Concluding Remarks

Vocational training policies have long been neglected in labour law and indust­ rial relations. Even in times of economic crisis, many European States have favoured the use of passive policy instruments to protect workers’ income, primarily through redundancy funds, even without real prospects of job preservation. This approach is based on the priority given to stability and continuity

76 Cedefop, The changing nature and role of vocational education and training in Europe. Education and labour market outcomes for vocational education and training graduates in different types of vet systems in Europe, vol. 5, Cedefop research paper no. 69, Luxembourg, Publications Office of the European Union, 2018. National surveys also show the same trend. On the Italian case, anpal, xix Rapporto sulla formazione continua. Annualità 2017–​2018, collana biblioteca anpal no. 13, 2020, p. 6. 77 Council Recommendation (2020/​C 372/​01) (ojeu c 372/​1, 4.11.2020). 78 ecsr, Conclusions 2020, Austria; ecsr, Conclusions 2020, Cyprus; ecsr, Conclusions 2020, Hungary; ecsr, Conclusions 2020, Malta. 79 ecsr, Conclusions 2020, Andorra; ecsr, Conclusions 2020, Slovenia; ecsr, Conclusions 2020, Sweden. 80 Enrique Fernández-​Macías (ed.), Transformation of the employment structure in the EU and USA, 1995–​2007, Basingstoke, Palgrave Macmillan, 2012.

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of employment.81 In contrast, States have hardly devised a mix of active and passive policies that, besides providing income support, improve employabi­ lity and support rapid employment transitions to better jobs. However, it is now clear that “job security is no more than an illusion of the past”82 and that, therefore, worker protection in the employment contract must be complemented by worker protection in the labour market.83 This need is also exacerbated by the consequences of the Fourth Industrial Revolution, which has led to an increase in the demand for high-​skilled labour and a parallel decline in the demand for low and medium-​skilled jobs.84 Therefore, it is not surprising that the 2008–​2009 economic crisis and the pandemic have shown the need to reinforce investments in vocational trai­ ning, a cornerstone of active labour policies, which is even more useful in times of economic difficulty as a fundamental welfare tool. This view is also supported by the ilo, according to which the lifelong training system must be “combined with universal social protection”,85 in the logic of integrating labour promotion and protection instruments.

81

Maurizio Del Conte, “The Difficult Cultural Turning Point in Labour Protection and the Key Role of Vocational Training”, Comparative Labour Law & Policy Journal, vol. 41, no. 3, 2021, pp. 641–​658. 82 As prof. Marco Biagi already stated in 1994. See Marco Biagi, cit., p. 313. In the same sense, Ralf Dahrendorf, “Prosperity, Civility and Liberty. Can We Square the Circle?”, in Ralf Dahrendorf (ed.) After 1989: Morals, Revolution and Civil Society, Basingstoke, Palgrave Macmillan, 1997, p. 60. 83 Silvia Ciucciovino, Apprendimento e tutela del lavoro, Torino, Giappichelli editore, 2013, pp. 4 ff. 84 Eurofound, Upgrading or polarisation? Long-​term and global shifts in the employment structure: European Jobs Monitor 2015, Luxembourg, Publications Office of the European Union, 2015. 85 ilo, Work for a brighter future, Global Commission on the Future of Work, 2019, p. 32. The outcomes of the Report led to the ilo Centenary Declaration for the Future of Work.

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