PRESERVING EUROPE’S SOCIAL MODEL
As we enter the 7th year of the economic crisis, the end is not yet in sight. Worse, in most countries, the adoption of austerity measures has so far contributed little to recovery, but has exacerbated the dire living conditions of millions of people. Not surprisingly, disillusioned Europeans are increasingly giving their support to populist movements and parties, which poses a serious threat to the stability of our societies.
Yet, this situation is far from inevitable. If Government leaders and money lenders started considering socio-economic rights not as a luxury, but as an integral part of recovery plans, they would increase the chances of reversing course, averting future shocks and boosting economic development. Growing evidence suggests that economic development is more sustainable and societies are more resilient when social rights are protected.
In this context, a renewed interest in the European Social Charter seems indispensable.
A pillar of human rights protection
By adopting the Charter in Turin 53 years ago, and by modernising it over the decades, European Governments took a visionary decision: Europe’s construction would be based not only on the pursuit of economic prosperity and the protection of civil and political rights, but also on the rights of all citizens to have a job, decent housing, health protection, social security and quality education, and on protection from poverty and from social exclusion.
In a few days, the commitment made in Turin can be rejuvenated, as Ministers, representatives of International Organisations, academia and civil society representatives gather in the capital of the Piedmont region to find ways of improving the Charter’s implementation and strengthening its role in the European system of human rights protection.
By looking at the accomplishments of the Charter, we understand how topical it is for our daily lives. Were it not for the Charter, many more children would still be working, women treated as second-class citizens and vulnerable people denied adequate access to health and social protection.
Among the most striking accomplishments of the Charter is the introduction of legislation in many countries, including Czech Republic, Greece, Italy, Portugal, which prohibits children’s work under the age of 15 and strictly regulates the work of older children.
In Austria, Germany and Italy, just to mention a few countries, the increased protection of women, both in terms of maternity rights and job security, as well as access to health care and equal pay helped overcome longstanding discrimination.
In other countries, including Portugal, Spain and the UK, the Charter contributed to the ban on corporal punishment of children while in Cyprus, France and Lithuania it also promoted the adoption of legislation fostering the social inclusion of persons with disabilities.
True, the situation on the ground is still far from satisfactory. In many countries children still work and suffer domestic violence, women and persons with disabilities are still discriminated against and other vulnerable groups, including Roma and migrants, still struggle to access their basic needs.
This reality shows that we still have a lot of work to do to close the implementation gap between commitments and reality.
From theory to reality
To get there, I see three main steps that need to be taken.
The most obvious is the ratification of all the Charter’s provisions by all Council of Europe member States. This would create a homogenous European space where citizens would be able to enjoy comparable social protection. To date, 43 countries have ratified the Social Charter as revised in 1996[1], with only France and Portugal having ratified all its provisions.
The second step is to widen the application of the collective complaints procedure. Since 1998 this procedure has allowed trade unions, employers’ organisations and international NGOs to lodge complaints with the European Committee of Social Rights. Though individuals are not authorised to use this procedure, it still represents a powerful bottom-up tool to have socio economic rights enforced at national level, with a relatively quick procedure of only 18 months. So far only 15 countries have accepted this procedure, and in Finland also national NGOs can use it. This is an example that the other 14 countries should follow, not to mention the remaining 32 - 14 of which are also EU member States - that have not even accepted the procedure yet. In this context, a more proactive approach of the EU in promoting the ratification of the procedure among its member States and, more generally, in taking into account the Charter and the Committee’s case-law would be highly beneficial to establish a more coherent legal space for the enforcement of social rights.
The third step is to increase the use of the Committee’s jurisprudence by national courts, tribunals and national human rights structures. Judgments and decisions of national courts informed by the Committee’s jurisprudence can in fact have a huge impact for people’s everyday lives. Encouraging examples of national judgments referring to the Charter have already started to appear. In Italy, the Court of Cassation and the Regional Administrative Tribunal of Lazio pronounced two judgments in 2013 highlighting the normative obligations derived from the Charter.
Another interesting example comes from Spain, where in November 2013 a Labour Court in Barcelona set aside national legislation which had introduced the possibility of dismissing workers in their probation period without notice or compensation. The Court grounded its rationale on the decision of the Committee on a Greek case, considering that the Troika-imposed measures introduced in Spain were analogous to those adopted in Greece.
The significance of this judgment, followed by other Spanish labour Courts, has a bearing well beyond the case in question. First of all, it legitimises the transnational applicability of the Committee’s jurisprudence, which can be therefore enforced by national courts without necessarily waiting for a case concerning their country. Second, by doing so, national courts can incorporate decisions taken under the collective complaints procedure also in countries, like Spain, which have not yet accepted it.
In addition to Courts, national human rights structures, such as Ombudsmen, human rights commissions and equality bodies, can contribute to strengthening socio-economic protection. By way of example, I was particularly impressed by the work done by the Ombudsman of Spain over the last few years in the field of socio-economic rights. In a recent visit to the Netherlands, I could also see how strong social rights are anchored in the work of the country’s human rights bodies, in particular the Children’s Ombudsman.
All these initiatives must be encouraged and further expanded because they provide additional tools to keep Europe’s social promise.
Balancing financial and human rights concerns
Undoubtedly, finding the right formula to tackle the impact of the financial and economic crisis and reorganise national budgets represents an extraordinary challenge for national and local governments alike.
In this difficult exercise, human rights concerns cannot be ignored. By laying down the foundations of our social model, the Charter has become Europe’s crowning achievement and the aspiration for millions of Europeans.
We have to use its values and standards to carefully steer our response to the crisis. The society we want to live in and bequeath to future generations depends on our ability to take decisions today based on human rights norms and principles.
Nils Muižnieks
[1] Only Liechtenstein, Monaco, San Marino and Switzerland have not ratified it.