2.1.2 Council of Europe

• Right to strike; • Dissolution and suspension of organisations; • Right of employers’ and workers’ organisations to establish federations and confederations and to affiliate with international organisations of employers and workers; • Protection against discrimination; • Protection against acts of interference; • Collective bargaining; • Consultation with the organisations of workers and employers (social dialogue); • Facilities for workers’ representatives.

16. CONCLUSION - In conclusion, the International Labour Organisation is interesting as it has produced international treaties on a wide range of industrial relations subjects and social rights which most European Countries have ratified. Its monitoring systems are authoritative but remain weak as they do not have any legally binding force. Furthermore, ILO recommendations and complaints are always directed towards governments and not towards employers. For ECA the different monitoring procedures of the ILO can be interesting to put pressure on national governments (but also on the EU, as it sees itself as an important partner organization of the ILO and it has an observing non-member status in in the International Labour Conference) to take action to solve certain issues. Moreover, ILO recommendations, views and reports can be used as legal arguments before European and national courts.

2.1.2 Council of Europe

17. ECHR AND ESC - The Council of Europe is the leading human rights organisation in Europe, not to be confused with the European Union or with its institution the Council of the European

Union. The Council of Europe has 47 member states, including all EU countries and amongst others, the UK, Norway, Switzerland, Russia and Turkey. The only missing European country is

Belarus. Based in Strasbourg (France), the Council of Europe has two important legal instruments which impact fundamental social rights, the European Convention on Human

Rights and the European Social Charter. We will discuss both below.

A. The European Convention of Human Rights

18. INTRODUCTION AND CONTENT - The European Convention of Human Rights (ECHR) of 1950 is Europe’s most important human rights’ treaty. It is enforced by the European Court of Human Rights (ECtHR) seating in Strasbourg, not to be confused with the Court of Justice of the European Union seating in Luxembourg. As the first important human rights treaty post World War II the ECHR gained immense importance as one of the legal instruments that have to guarantee the prevention of another major war and large-scale violations of human rights like under the fascist regimes. The ECHR is conceived as a more traditional human rights instrument, focusing on civil and political fundamental rights and thus less on economic and social rights. Nonetheless the ECHR is also of importance for industrial relations and social rights. Especially the following provisions are often used in social law cases: • Article 8: right to privacy, which also extends to the privacy of workers in a professional employment context.

• Article 9: freedom of thought, conscience and religion, which can also extend to the employment context. • Article 10: freedom of expression, which is also valid for workers expressing their personal opinion. • Article 11: freedom of association, which indirectly extends to the right to collective bargaining and, in a lesser degree, to the right to take collective action (right to strike). • Article 14: prohibition of discrimination based on sex, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth or other status, extended by the ECtHR to sexual orientation.

19. JUSTIFICATION OF RESTRICTIONS - These rights are not absolute and can be restricted, usually on the condition that restrictions are "in accordance with law" and "necessary in a democratic society". The ECtHR’s justification test will include an assessment of: • the legality of the measure: laid down in legislation in a broad sense (internal, impersonal legal norm which is known to the citizen and formulated in such a way that he can see its legal consequences with reasonable foreseeability); • the legitimate aim of the measure, which has to correspond to an aim which is expressly named by the relevant provisions in the ECHR, e.g. interests of national security, public safety, prevention of disorder or crime, protection of health or morals, protection of the reputation or the rights of others; • The appropriateness of the measure in light of the legitimate aim (does it actually serve the purpose); • The proportionality of the measure in light of the legitimate aim, considering whether the same could not have been achieved with less intrusive measures and considering the rights and interests of affected persons and others.

20. THE ECTHR - What makes the ECHR such a powerful instrument is the fact that its implementation is enforced by the supervision of the ECtHR. The Court consists out of independent judges which are elected by the Parliamentary Assembly of the Council of Europe (each Member State can appoint 3 candidates for the function). Judges are usually senior national judges or important legal scholars (the ECHR demands that judges are of "high moral character" and have qualifications suitable for high judicial office or be jurists of recognised competence). Its case law can be found on the HUDOC website, it’s views on industrial relation rights are summarised in the ECtHR’s Guide on Article 11 – Freedom of Assembly and Association.5

Individuals, groups, organisations and countries can file a complaint against a member state of the Council of Europe for an alleged violation of the ECHR. The judgments of the Court are binding and final. Neither the accusing party nor the state complained against can appeal, except to the Grand Chamber of the Court itself. When a Member State is unsuccessful, it is obliged to do everything possible to prevent the violation from recurring in the future. The Committee of Ministers of the Council of Europe will monitor the execution by Member States of the judgements of the ECtHR, if an execution or implementation is not forthcoming, the Committee may call out the Member States by way of a resolution. The EU and EEA Member

5 For the Hudoc database, see https://hudoc.echr.coe.int/ ; for the ECtHR Guide on Article 11, see https://www.echr.coe.int/Documents/Guide_Art_11_ENG.pdf.

States of the Council of Europe usually execute the judgements without many problems (less can be said of countries like Russia and Turkey).

The facts that the ECtHR is the principal interpreter of the Convention and the fact that its decisions are legally binding for the Member States means that national courts will have to look at the case law and interpretation of the ECtHR when they are confronted by a case which involves a fundamental right which is protected by the ECHR. Therefore, the ECtHR has a major influence of the judicial system of most of its Member Systems, although some countries have difficulties with recognising the hierarchical superiority of international law and international courts over their own supreme and constitutional courts.

21. PROCEDURE BEFORE THE ECTHR - Any individual, organisation or Member State may bring a case before the ECtHR. However, before the Court can take up a case, a number of conditions must be met. First of all, the petitioner himself must be the victim (he must suffer a disadvantage) of a violation of the ECHR; this makes it more difficult for trade unions to lodge a complaint themselves, although this is certainly not impossible. Next, the complaint must be directed against the public body or government. This means that no complaint can be directed against another citizen, a private organisation or the employer. It is also essential that a complaint can only be filed when there is no longer a legal remedy available in the country where the violation took place (subsidiarity principle). In other words, a judgment of a court of last instance is required before one can turn to the ECHR. Further, there is a time limit that must be observed: one must file a complaint before the Court within 4 months after the final adverse national judicial decision. This term was brought down from 6 months as from 1 February 2022. Finally, it must not be an anonymous complaint; the identity of the complainant is indispensable in the procedure. The great importance of the judgments of the ECtHR have made it a very popular last resort for legal claims in Europe. This resulted in the overflooding of the Court with cases, causing a significant procedural delay in examinations by the Court and a strict test of admissibility. However, the exit of Russia from its adherence to the ECHR in 2022 will significantly decrease the number of cases.

The ECtHR is also monitored by a reporting system before the Secretary General and the Committee of Ministers of the Council of Europe. However, this system is of minor importance.

22. CONCLUSION - In conclusion, the ECtHR is a very interesting instrument as it is a legally binding document which can be used by individuals and organisations like trade unions before national courts and which is monitored by a powerful international Court. However, a procedure before the ECtHR needs to comply with strict conditions. Furthermore, the ECHR only contains a limited number of relevant rights for industrial relations and as social rights is not the core of the convention, the ECtHR might have less interest in the specific background and context of industrial relation disputes.

B. The European Social Charter

23. INTRODUCTION - The European Social Charter (ESC) is the less known sister of the ECHR. It was established in 1961 and revised in 1996. However, not all ratifying parties to the original ESC have ratified the revised version of 1996 so it is always important to see which version

should be applied. 6 All EU and EEA Member States have ratified a version of the ESC, just like i.a. the UK, Switzerland, Turkey, Ukraine, Georgia and Armenia. As most EU Member States have ratified the revised version, we will focus on this version below.

24. CONTENT - The revised ESC (96 version) is very interesting because it covers a wide range of social rights, including: • Art. 1: Right to work • Art. 2. Right to just conditions of work (limited working time, paid public holidays, paid annual leave, weekly rest periods, right to information regarding main conditions, measures regarding night work) • Art. 3. Right to safe and healthy working conditions • Art. 4. Right to fair remuneration (decent living standards, overtime pay, equal pay, reasonable period of notice for termination, limitations for wage deductions) • Art. 5. Right to organise (right to establish and join trade unions and employers’ organisations) • Art. 6. Right to bargain collectively: − 1. Social dialogue − 2. Collective bargaining − 3. Conciliation and voluntary arbitration to settle disputes − 4. Right to take collective action, including strikes • Art. 8. Right of employed women to protection of maternity • Art. 9. Right to vocational guidance • Art. 10. Right to vocational training • Art. 20. Right to equal opportunities without discrimination on the grounds of sex • Art. 21. Right to information and consultation • Art. 22 Right to take part in the determination and improvement of the working conditions and working environment (worker involvement within the undertaking) • Art. 24. Right to protection in cases of termination of employment (right to valid reasons for dismissal) • Art. 25. Right of workers to protection of their claims in case of insolvency of the employer • Art. 26. Right to dignity at work (against sexual harassment, reprehensible conduct like bullying) • Art. 27. Right of workers with family responsibilities to equal opportunities and equal treatment.

• Art. 28. Right of workers' representatives to protection in the undertaking and facilities to be accorded to them (right to facilities to exercise their function and effective protection against retaliation).

6 Have only ratified the original ESC: Croatia, Czech Republic, Denmark, Iceland, Luxembourg, Poland (and also Switzerland and the UK).

• Art. 29. The right to information and consultation in collective redundancy procedures. The rights which are most important for industrial relations are in bold.

25. EXCEPTIONS AND RESERVATIONS - It is important to know that every Member States has the right to make reservations or ask for opt-outs regarding certain rights, but they have to respect a minimum number of certain core rights. In case of a conflict, it is recommended to see if the relevant Member State has posed any reservations before trying to claim a right within the Charter. The website of the Council of Europe provides a nice overview of this.7

26. NATURE OF RIGHTS - Some of the rights in the ESC are of a more programmable nature, this means that they include positive obligations for the Member States to develop a policy to support these rights, but do not offer a substantive right for individuals. Other rights, like the right to take collective action in art. 6.4 are more seen as negative obligations for the Member States, which does mean that an individual or trade unions could be able to claim these rights before the European Committee of Social Rights (ECSR, see below) or their national courts (if a right is recognised to have a direct effect by the national jurisdiction).

27. WEAK ENFORCEMENT - Although the ESC offers a wide range of social rights, it is often seen as the little brother of the ECHR because the lack of strong enforcement mechanisms. The main enforcement mechanism is not a court like the European Court of Human Rights but a committee called the European Committee of Social Rights (ECSR). Therefore, the enforcement of the ESC resembles the enforcement mechanisms of the ILO (see above) and is more based on a monitoring and name and shame system than on “hard law” court rulings which are directly applicable in a Member State.

28. PROCEDURE BEFORE THE ECSR - The ECSR consists of 15 independent, impartial members are elected by the Council of Europe’s Committee of Ministers for a period of six years, renewable once. Often, they are highly regarded law professors.

The ESC knows two different enforcement mechanism. First, there is a monitoring system. Every year the Member States have to submit a report on the respect and implementation of the rights within the ESC, to which the national social partners can add their remarks. The ECSR will investigate these national reports and will publish conclusions. These conclusions can declare that the Member State is in conformity, ask for further information, contain recommendations to improve the situation or even clearly state that a Member State is violating a specific right. Especially in the last cases, a negative conclusion is seen as a reprimand which could shame a member state into action (but which cannot be used before the national) courts.

Next, for Member States which have ratified the 1995 collective complaint protocol to the ESC, it is also possible for organisations and trade unions to introduce a collective complaint before the ECSR against a Member State if they think that it is violating a right in the ESC. This

7 For the 1961, ESC see: https://www.coe.int/en/web/conventions/full-list?module=treatydetail&treatynum=035 ; for the 1996 ESC, see https://www.coe.int/en/web/conventions/fulllist?module=treaty-detail&treatynum=163.

collective complaint procedure is ratified by Belgium, Croatia, Cyprus, Czech Republic, France, Greece, Ireland, Italy, Netherlands, Norway, Portugal and Sweden. This means that it cannot be used against the majority of the ESC Member States. In a collective complaint procedure, the ECSR will judge a specific case like a court under the following conditions: • Individuals cannot submit a complaint (are allowed: the European social partners, national social partners, Employers’ organisations and Trade Unions in the country concerned and specific international NGO’s). • Complaint can only be lodged against a member state, not against private employers. • Individual situations may not be submitted (it needs to be about a continuous situation or practice). • complaints may be lodged without domestic remedies having been exhausted and without the claimant organisation necessarily being a victim of the relevant violation.

After a negative Decision of the ECSR, the Council of Ministers of the Council of Europe will make a recommendation in which it will advise the concerned Member State to stop the violation as soon as possible and the Member State will have to report on its implementation of this recommendations. In any case the decisions of the ECSR must be respected by the States concerned but they are not enforceable in the domestic legal system.

The collective complaint procedure is seen as a more effective form of naming and shaming than the monitoring procedure with reports and conclusions, as there is a clear decision of the ECSR which is not hidden in the more generic conclusions, but both enforcement systems have the same legal effect. The success of these mechanisms will mostly depend on how serious the Member States will take their responsibilities and the attention of national doctrine and case law for these systems (which varies from country to country) as national courts could be inspired by decisions of the ECSR. All the ECSR’s conclusions and decisions can be found on the HUDOC database, the ECSR’s viewpoints are summarised in its Digest of 2018.

8

29. CONCLUSION - In conclusion, the ESC offers a lot of interesting rights to trade unions and workers, but just like the ILO, these rights are often difficult to enforce seen the absence of strong enforcement mechanisms. However, that does not make the ESC worthless. A condemnation by the ECSR could be followed by the national case law. Moreover, it could also be a good idea to claim the rights within the ESC before the national courts, especially when they offer clear and precise rights to workers and therefore could be directly applicable (even horizontally against employers), this is e.g. the case in the Netherlands for the right to take collective action in art. 6.4. ESC. But whether a right has a horizontal and direct effect in a Member State mostly depends on the national case law.

8 For the conclusions and decisions of the ECSR, see https://hudoc.esc.coe.int/; For the Digest, see https://rm.coe.int/digest-2018-parts-i-ii-iii-iv-en/1680939f80.