NGO and state views on Social Charter Collective Complaints

On 22 September Social Platform and the Conference of INGOs Council of the Europe jointly organised a training session on how to make the best use of the Collective Complaints Procedure under the European Social Charter (ESC). This year we had the opportunity to not only exchange views among NGOs on how to put forward complaints on behalf of victims of social rights violations, but also to hear the perspective of a state representative, being the subject of a recent complaint (no. 90/2013).

A government’s critical voice

Roeland Böcker, Dutch Government Agent before the European Court of Human Rights and the European Committee of Social Rights (ECSR), shared his point of view on the complaints procedure. Firstly, he considered the ECSR to go beyond the scope of the ESC in its judgement to allow undocumented migrants shelter and healthcare (the charter only stipulates the protection of lawful residence). Secondly, he argued that immediate measures that can be imposed by the Committee are sometimes constitutionally impossible for a state, such as stopping the execution of a law or policy from one day to another. Thirdly, a state may wait months for the final recommendations by the Committee of Ministers, based on the Committee of Social Rights report. While NGOs may think that this is not acting in good faith, Mr Böcker argued that the government simply respects the procedures. Finally, he considered the Committee of Ministers inflexible. When a state takes measures from the time the complaint was lodged to ensure non-violations of rights, the Committee still does not re-consider the complaint. These aspects, argued Mr Böcker, contributes to the unwillingness of states to sign the Charter (only 15 states, including 14 EU Member States).

A lack of gender inequality complaints

I had the pleasure to facilitate one of the workshops where we discussed the lack of collective complaint in the area of gender equality. Anje Wiersinga from International Alliance of Women explained how the inequality of the gender pay gap has been recognised by treaty bodies of the UN since 1941 and by the EU since 1957; still we have a 20 per cent gap in the world and 17 per cent in the EU (lowest in Belgium of 9 percent). In 2011 women rights organisations and trade unions tried to find a case which could be presented for a collective complaint, but until now such a complaint has not been taken forward. Ms Wiersinga recalled that at a recent hearing on corruption in big firms, a representative from the Council of Europe Parliamentary Assembly said that the advantage of women are that they are less corrupt and less costly, illustrating that we still have long way to go to change attitudes even within the institutions. Stefan Clauwaert from the European Trade Union Confederation explained that although legally there is a case, it is in practice difficult to prove the gender pay gap.

Participants highlighted that one reason for a lack of collective complaints could be that other mechanisms already exist to address gender equality. At the moment there is an opportunity to make use of the Istanbul Convention (on violence against women) monitoring mechanism: NGOs can contribute with data to its baseline report, particularly because this first monitoring round will include equal opportunities and non-discrimination in all areas of life.

On a positive note

Despite the lack of collective complaints targeting gender equality there have been several successful complaints addressing other violations, such as the right to housing and health care. Development shows that decisions are starting to appear in national laws.

Among some of the general tips that were shared by NGOs were making use of the country reporting on the Social Charter, and trying to get media attention on state compliance on certain issues. Another tip was to take into account the Committee of Ministers Chairmanship when choosing which country to lodge complaints against, as the chairmanship is often concerned with being perceived as “clean”.

By the end of our training session the Council of Europe Academic Network decided to discuss at its next General Assembly whether they can further support NGOs and trade unions to build collective complaints.

A big thanks to all the speakers and participants for their active participation – the INGO Conference and Social Platform promise to continue our cooperation in the future!

Read about our training of last year (2014).