Check against delivery 6th Fundamental Rights Platform meeting
Vienna, 25th April 2013
Social Rights: the Role of the Council of Europe (focus on the
System of Collective Complaints). The Role of NGOs in
Ensuring Effectiveness of Social Rights in Europe
Luis Jimena Quesada
President of the European Committee of Social Rights
I. Key position of NGOs within the different European mechanisms for the
protection of social rights. II. Complementarity of European mechanisms:
looking for the most favourable solution for the effectiveness of social rights. III.
Overcoming the pretext of economic crisis: crisis of positive will?
I. Key position of NGOs within the different European mechanisms for the
protection of social rights
NGOs enjoy an essential position in the institutional framework of both
the Council of Europe (CoE) and the European Union (EU).
In the case of the CoE, the active role played by NGOs has been
reinforced by granting participatory status to these organisations, which
collectively make up the Conference of INGOs of the CoE. Their participatory
status allows INGOs to become effectively engaged in the decision-making
process at the CoE and in the implementation of its programmes in order to
meet the expectations of 800 million people in Europe. Indeed, participatory
status has a stronger meaning than mere consultative status and, therefore, it
implies an active involvement and stronger commitment. From this point of
view, the entitlement to submit complaints to the European Committee of Social
Rights is perhaps the most striking example of the potential achievement of
participatory status (currently 75 organisations are entitled to submit
complaints)1. Consequently, this status/this entitlement must be used and put
into practice.
In the case of the EU, through its Fundamental Rights Platform (FRP),
civil society organisations can take an active role in the work of the
Fundamental Rights Agency (FRA). From this perspective, the idea of
“participant organisation” (currently the network of civil society organisations
within the FRP is composed of over 300 NGOs) implies that this unique forum
allowing a truly European debate on fundamental rights must focus on the
protection of social rights.
1
See http://www.coe.int/t/dghl/monitoring/socialcharter/OrganisationsEntitled/OrgEntitled_en.asp.
Check against delivery II. Complementarity of European mechanisms: seeking the most
favourable solution for the effectiveness of social rights
As you well know, the necessary synergies between the CoE and the EU
have been taken into account ever since the two organisations came into
existence.
With regard to the synergies of both organizations at NGOs level, this
approach is clearly illustrated by the fact that the most of the 75 NGOs entitled
to lodge complaints with the European Committee of Social Rights also take
part in the network composing the FRP. So, in this way there is a direct
connection between FRP and the complaints submitted to the Committee for
action.
Furthermore, if we take into consideration that FRP helps to better tailor
the agency’s work to the genuine needs of European citizens (e.g. by providing
feedback and suggestions for the agency’s Annual Work Programme and
Annual Report, or participating as stakeholders at different stages of FRA
thematic projects) and, in addition, that FRA provides valuable input into the
Committee’s judicial work (findings from FRA are important as a factual source
in the Committee’s assessment, when taking decisions on the merits in the
collective complaints procedure), there is also an indirect connection between
FRP and complaints before the Committee to be exploited.
Moreover, if we specifically tackle the protection of social rights in
Europe, this complementarity is clearly illustrated by the Charter of
Fundamental Rights of the EU, the catalogue of social rights of which has been
elaborated following the model of the European Social Charter (as explicitly
indicated in the Appendix of the EU Charter). As a result of this complementarity
of text, the complementarity of mechanisms must also become a reality by
seeking the most favourable solution for the effectiveness of social rights, as
imposed by the EU Charter (Art. 53) and, and in parallel, by the European
Convention on Human Rights (Art. 53), or the European Social Charter (Art. 32
of the 1961 Charter and Art. H of the 1996 Revised Charter).
With this in mind, the feedback between the case law of the respective
judicial bodies (the Court of Justice of the EU, the European Court of Human
Rights and the European Committee of Social Rights) is essential in order to
ensure the effectiveness of social rights in Europe by being consistent with this
favor libertatis principle.
These parameters imply likewise a consistent role by NGOs or, in other
words, NGOs should change their mind. What I do mean? I understand that the
visibility of one NGO is improved when using the figure of “amicus curiae”
before the Court of Justice of the EU or before the European Court of Human
Rights and, therefore, when “introducing” its name in a case (in a judgment) of
the Court of Luxembourg or the Court of Strasbourg. Nevertheless it is also
important taking into account the real impact of this kind of third-party
Check against delivery intervention: all cases are important, but does an individual case or an “inter
partes” judgment provide a real solution for other cases? Does this degree of
“justiciability” imply an effective solution?
I think we are not always aware of the real impact of each European
mechanism. I would like to underline that NGOs may not only intervene as
“amici curiae” before the European Committee of Social Rights in the framework
of the collective complaint procedure, but they also may (and must) submit
those collective complaints. Degree of “justiciability” must be read in terms of
degree of “effectiveness”.
From this perspective, there is very often a kind of “obsession” (not only
at University level but also at NGOs level) in seeking protection of social rights
before the European Court of Human Rights or before the Court of Justice of
the EU. It is unquestionable that the “social” case law of both Courts is of great
interest, even if there is always room for improvement. However, our
expectations are very often too high and as a result, we are sometimes
disappointed with the judgments of both Courts in the field of social rights. Why
not turn alternatively to the European Committee of Social Rights and its
specific task and case law in this field? With regard to degrees of effectiveness,
it is possible to provide examples of judgments where the Court of Strasbourg
and the Court of Luxembourg have faced problems of execution and, in
comparison, examples where decisions of the Committee were enforced after
only several months. At the very least, this bears some reflection on the part of
NGOs.
III. Overcoming the pretext of economic crisis: crisis of positive will?
Civil society organisations are key actors in building a social Europe. You
are the actors placed nearest to citizenship. You enjoy a formal status before
European institutions (both within the Council of Europe and the European
Union); you enjoy this kind of privilege and this is wonderful. But this privilege
implies a strong responsibility.
In your case, this privilege must be used. Not using this privilege means
increasing the democratic deficit, because this entitlement has been conferred
to develop citizenship, in particular social citizenship. How can you use this
privilege? Let me share some ideas or proposals with you.
You must be more active in:
•
Formulating cases before the European Committee of Social Rights
against the 15 countries having accepted the collective complaints
mechanism:
o
o
This procedure is reasonably reactive, as it does not imply the
exhaustion of domestic remedies and, therefore, its length allows for
solutions in some 12 to 15 months in average.
And, what is more important, the solutions reached in relation to the
States Parties to this procedure can be also applied to the other
Check against delivery States Parties to the Social Charter (that is to say, to all EU member
states). E.g. if the Committee has adopted a decision concerning
anti-crisis legislation in one State Party having accepted the
collective complaint procedure, this decision must be extended to the
other countries having analogous legislation.
•
Exercising pressure in relation to those countries not having not yet
accepted this procedure, or the1996 Revised Charter, to do so,
especially in relation to EU member states:
o
o
o
There is a contradiction in the fact that EU member states accept the
Charter of Fundamental Rights of the EU (whose catalogue of social
rights is broadly based on the Revised Social Charter) and, at the
same time, these States have not accepted the Revised Charter of
the CoE.
This is also a contradiction in defending the indivisible character of
all human rights within the EU Charter, that is to say indivisibility of
recognition, and, at the same time, refusing to defend the
indivisibility of guarantees: it is not reasonable to separate the broad
recognition of social rights through the Revised Social Charter and
the effectiveness of this catalogue potentially provided for by the
collective complaints mechanism (e.g. Germany, Spain or UK).
When the EU Charter was drafted we complained about the lack of a
specific remedy for the protection of its broad catalogue (a kind of
“amparo” appeal); in the case of the Social Charter this remedy
exists, but it is not sufficiently or efficiently exploited.
Finally it is paradoxical to accept other similar mechanisms within the
international system for the protection of human rights (e.g. the
system of individual communication before the UN Committee of
Economic, Social and Cultural Rights) and to refuse to accept the
collective complaints procedure before the European Committee of
Social Rights.
These are some ideas or proposals aiming at making all of us more
aware of our respective roles and shared responsibilities. We cannot exclusively
accuse institutions of democratic deficit and lack of social citizenship if we are
not consistent with our responsibilities. For example, if you don’t submit
collective complaints, the European Committee of Social Rights cannot adopt
decisions and, consequently, States do not have any decision (as a source of
legitimacy) to improve their domestic legal order, that is to say, the
effectiveness of human rights. For us, the “triple-A” is not a matter of
“dependency” in the context of the economic or financial crisis; for us the “tripleA” is a matter of positive will, that is to say, the will of civil society Actors (NGOs
entitled to draft or to submit complaints), the will of governmental Actors
(respondent States and all State Parties to the Social Charter) and the will of
institutional Actors (in this case, the European Committee of Social Rights)… to
be dynamic and active. And this is consistent with the idea of NGOs as
promoters of democracy and active citizenship in Europe.