Background
The European Social Charter sets out social and economic rights for people within the jurisdiction of the 47 Members of the Council of Europe. The Charter was initially adopted in 1961, revised in 1996 and has three additional protocols.
All countries that have ratified the Charter must accept at least six of the core provisions of the treaty and no fewer than 16 of the articles of the Charter. This means that the obligations of States under the treaty vary. You can check which provisions each State has ratified through the Council of Europe’s website.
The European Committee of Social Rights monitors States’ compliance with the rights within the Charter. States report to the Committee every year on one of the four areas of the rights under the treaty so that the full Charter is reviewed over a four year period for each State.
A complaints procedure for the Charter was introduced in 1998 and States must ratify an Additional Protocol to the Charter for the complaints procedure for the complaints mechanism to be used against them.
To date, 15 States have accepted the complaints procedure: Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Greece, Ireland, Italy, Netherlands, Norway, Portugal, Slovenia, Sweden.
Who can bring a complaint?
International organisations of employers and trade unions can bring complaints against any State that has accepted the complaints mechanism, while national employers’ organisations and trade unions can bring complaints against the country in which they are based.
For an International NGO to use the mechanism, it must have participatory status with the Council of Europe. Applications can be submitted in March each year and, if successful, status is granted in December.
Once an organisation has gained participatory status, it must apply to the Governmental Committee of the Charter be included on the list of organisations authorised to bring a complaint.
National NGOs can also bring complaints if their State has recognised their right to do so. To date, only Finland has accepted the right of national NGOs to bring complaints.
Though not a formal route to filing a complaint, national NGOs can also work with an international organisation with participatory status to file a complaint.
How does the complaint process work?
An organisation may make a complaint alleging “unsatisfactory application of the Charter” without a named victim and without exhausting other routes of complaint.
Complaints must be made in writing and relate to a provision of the Charter accepted by the relevant State. Complaints must be addressed to the Secretary General of the Council of Europe, who acknowledges receipt and forwards the complaint to the Committee of Independent Experts. The Committee must then determine whether the complaint is admissible.
If the complaint is admissible, the Committee must ask the affected State and the organisation that lodged the complaint to submit all relevant written information and may organise hearings with representatives of involved parties.
After considering the evidence, the Committee must draw up a report describing how it has examined the complaint and present conclusions as to whether the State has met its obligations under the Charter.
In response to the report, the Committee of Ministers must adopt a resolution by a majority of members to issue a recommendation addressed to the State that was subject to the complaint. The State is then required to formally respond to the recommendation when it next reports to the Committee on Social Rights.
Choosing the right complaints mechanism
Enforcement of decisions under the complaints mechanism is essentially a matter of political pressure from the Council of Europe and so is not as strong as that of other Europe wide human rights treaties such as the European Court of Human Rights, but collective complaints under the Charter nonetheless have a number of benefits.
The less formal process makes the procedure much more accessible for organisations that would be usually reluctant to engage in litigation and most of the process can be conducted in writing. Similarly, the fact that a victim is not required to bring the complaint means that a law, policy or practice can be challenged directly.
The European Social Charter also covers social and economic rights to a far greater extent than other Europe wide treaties and so will provide a basis to challenge rights violations that are not covered by other treaties.
The procedure is particularly useful for raising the profile of a rights violation, forcing a State to engage with the issue and building international support for advocacy.
Examples
The European Social Charter has been used in a number of cases involving children’s rights, including with regards to: