The Brussels DocumentThe Future of the Protection of Social Rights in Europe

Belgian Chairmanship of the Committee of Ministers of the Council of Europe 2014-2015

Manuel PAOLILLOPublic Federal Service Social Security - Belgium

slides to be used with the authorization of the author

Plan

A. The context1. The Turin process

2. The Brussels Conference

B. The key ideas of the Brussels Document1. Protecting social rights in times of crisis

2. Ensuring the consistency of the protection of social rights

3. Enhancing the effectiveness of the European Social Charter

4. Maximising the potential synergies

C. Contacts & Bibliography

The “Turin process”

Renewed political interest in Europe to-day for the European Social Charter & the

Collective Complaints Protocol

Turin Conference of 17-18 October 2014- Italian Chairmanship of the Council of the European Union

Brussels Conference of 12-13 February 2015

- Belgian Chairmanship of the Council of Europe

A. The context

“Nicoletti Report”

“Brussels Document”

Action plan p.46

Brussels Conference of 12-13 February 2015

- Belgian Chairmanship of the Committee of Ministers of the Council of Europe

(CoE)Organisation : FPS Social Security & FPS Employment, Work and Social Dialogue + CoE

- 300 participants (States, international and academic institutions, INGOs, NGOs, …)

- High-level speakers

- Political representatives JAGLAND – THYSSEN – DE BLOCK – PEETERS – NICOLETTI

- 2 political round tables

- 6-page background note

- Thematic area : Future of the protection of social rights in Europesocio-economic crisis – European and international mechanisms for the protection of social rights – social

policy – European Courts – relations between the EU and the Council of Europe (legal systems)

- “Continuity” of the Turin Conference

- Deliverable : The Brussels Documento Synthesis of the Conference & Areas of work

o Enhancement of the protection of social rights

o 31 independent academic experts – Prof. Akandji-Kombé (coordinator)o Available in 4 languages : FR - EN - NL - DE

A. The context

B. The Brussels Document

Introduction : general consensus

1. Protecting social rights in times of crisis

1. Ensuring the consistency of the protection of fundamental social rights

2. Enhancing the effectiveness of the European Social Charter

3. Maximising the potential synergies between the Council of Europe and the

European Union in the area of social rights

B. The Brussels Document

Introduction : general consensus

• Need to better take into account the requirements of social rights in policies implemented

in Europe

• Need to strengthen the possibilities of legal remedies

• Need to give full effectiveness to the Revised European Social Charter

• Need to improve coordination across different European systems of protection of social

rights (EU and CoE)

B. The Brussels Document

1. Protecting social rights in times of crisis

• Findings related to the social impact of the economic and financial crises on the European

social model and the social rights. Potential social regression.

• Impacts on social rights attributable to the crises and national and international responses

to them.

• Existence of budgetary margins to strengthen social rights (ILO).

• Reference to the case-law of the ECSR : reforms are possible but they should not destabilise

the situation of those who enjoy the rights enshrined in the Charter.

• Gap emerging in terms of protection of social rights and impact on democratic processes –

European project ?

• The Charter can serve as a framework for an economic recovery “social rights-compliant”.

B. The Brussels Document

2. Ensuring the consistency of the protection of social rights

• Guarantee of social rights: diverse national & international sources without harmonisation

• Compliance with the “most favourable treatment”

• In case of contradictory international obligations, application of the principle of the

relativity of treaties

• Acknowledgment of the normative autonomy of each legal sphere

• Interrelations between the ECHR and the ECSR

• Interrelations between the Social Charter and the Charter of Fundamental Rights … and

other international instruments for interpretations

• Open and transparent interpretative approach (spirit of Article 31§3 of the Vienna

Convention )

• No lowering of standards in case of several legal orders/instruments

B. The Brussels Document 3. Enhancing the effectiveness of the European Social Charter

• Uniform application throughout the regional space of the Council of Europe

o All States should ratify the Revised European Social Charter (appeal from the

international bodies)

o Compliance with all articles and at least of those provisions that form the core

o Ratification of the Collective Complaints Protocol + right of national NGOs to lodge

complaints

• Promotion of the role of the national institutions

o Training of judges, lawmakers, administrative authorities

o Structured exchange of good practices

o Translation of the decisions of the ECSR in the language of the State concerned

• Turin Protocol (1991)

o Election of the members of the ECSR by the PA // the ECHR

o Role of the committees

• Declaration by the Committee of Ministers & publicity of the decisions of the ECSR

• Material & human resources (number of members of the ECSR, increase of the number of

legal specialists assisting the Committee, and promotion of social rights)

• Equality of treatment between the ECHR and the European Social Charter

• External communication policy & internal reorganisation of the CoE

• Policy for executing decisions

B. The Brussels Document

4. Maximising the potential synergies between the CoE & the EU in the area of social

rights

• The role of the EU and of the CJEU has been strengthened in the area of social rights … but some

difficulties remain

o The Charter of Fundamental Rights remains selective

o The Interpretations of the ECSR are not necessarily followed

o The CJEU hesitates to acknowledge the European Social Charter as a source of inspiration for

the development of fundamental rights because not all MS have ratified it

�The Charter has not been materially incorporated in the EU legal order

Consequence : no “Bosphorus” or presumption of compatibility of social rights for the CJEU and

risk of contradictions between the European Social Charter and EU law

B. The Brussels Document

4. Maximising the potential synergies between the CoE & the EU in the area of social

rights

Practical ways to resolve the contradictions between the European Social Charter and the EU law :

I. Recommendation by the Commission to the MS to ratify the Revised European Social Charter

(to accept a number of provisions of it, due to their specific relevance to the EU law)

II. The Commission could seek to systematically take into account the Charter in the design of

the secondary legislation and the Memoranda of Understanding concluded with the MS

benefiting from the Support of the ESM (// horizontal social clause of Article 9 of the TFEU)

III. Establishment of a joint working group by CoE & EU on the legal and technical issues raised

by the accession of the EU to the European Social Charter (Resolution of the EP of 27

February 2014 & Resolution of the PA of 8 December 2014)

C. Contacts & Bibliography

Website of the Turin Process

Documents of the Turin & Brussels Conferences

http://www.coe.int/en/web/portal/high-level-conference-esc-2014

Coordinator of the Turin Process (CoE)

Mr. Riccardo PRIORE

DG I – Department of the European Social Charter

Organisers (Federal Public Services)

FPS Social Security – Manuel PAOLILLO – manuel.paolillo@minsoc.fed.be

FPS Employment, Work & Social Dialogue – François VANDAMME

C. Contacts & Bibliography

Bibliography Documents referred to in the Brussels Document

• General report of the Turin Conference, 17-18 October 2014

• Social protection global policy trends 2010-2015 : from fiscal consolidation to expanding social protection: key to crisis recovery,

inclusive development and social justice (International Labour Office, Geneva: ILO, 2014)

• Resolution 1884 (2012) of the Parliamentary Assembly of the Council of Europe

• Situation of Democracy, Human Rights and the Rule of Law in Europe, Report of the Secretary- General, presented at the 124th meeting

of the Committee of Ministers of the Council of Europe, held in Vienna on 5 and 6 May 2014 – SG (2014)1

• E.C.S.R., General Introduction to the Conclusions XIX-2 of 2009 on the impacts of the economic crisis on social rights

• Resolution of the European Parliament of 27 February 2014 on the situation of fundamental rights in the European Union (2012)

(2013/2078(INI))

• Resolution 2029 (2015) of the Parliamentary Assembly of the Council of Europe

Case law

• E.C.S.R., GENOP-DEI and ADEDY v. Greece, Complaint No. 66/2011

• E.C.S.R., IKA-ETAM v. Greece, Complaint No. 76/2012

• E.C.H.R., Matelly v. France judgment of 2 October 2014

• E.C.H.R., Al-Saadoon and Mufdhi v. United Kingdom judgment of 2 March 2010

• E.C.H.R., Bosphorus Hava Yollari Turzim Ve Ticaret Anonim Sirketi v. Ireland judgment of 30 June 2005

• E.C.S.R., Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v. Sweden, Complaint

No. 85/2012,

• E.C.H.R., National Union of Rail, Maritime and Transport Workers v. United Kingdom judgment of 8 April 2014

• E.C.S.R., Defence of Children International (DEI) v. Belgium, Complaint No. 69/2011, Decision of 23 October 2012

• E.C.S.R., Confédération générale du travail (CGT) v. France, Complaint No. 55/2009, Decision on the merits of 23 June 2010