The Reykjavík Declaration: How Does the European Social Charter Fit into the Community of Shared Values ?

Lize GLAS is Associate Professor of International and European Law, Radboud University (the Netherlands)

 

1. Introduction

The aim of the Council of Europe (‘CoE’) is ‘to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress’.[1] The European Social Charter (‘ESC’)[2] has been ‘instrumental’ in achieving this goal.[3] In the Reykjavík Declaration, the member states emphasise that the almost seventy-five-year-old organisation is still the ‘guiding light that assists us in fostering greater unity among us for the purpose of safeguarding and realising these ideals and principles which are our common heritage’.[4] They also resolved ‘to counter challenges to’, inter alia, human rights by renewing their commitment to the organisation’s values and principles.

This article explores whether the member states’ resolve to counter human rights challenges includes renewed commitment to the ESC so as to facilitate their economic and social progress. Although the ESC rights are formally referred to as the ‘natural complement’ of the European Convention on Human Rights (‘ECHR’),[5] in practice, they have remained ‘the poor step-sister’ of the ECHR’s predominantly civil and political rights.[6] Given this reality, the more specific question is how the paragraph in the Reykjavík Declaration dedicated to social rights as guaranteed by the ESC system[7] can be evaluated. Put differently, do the states regard the ESC still as the ECHR’s ‘poor step-sister’[8] or as its equally mature, albeit nine-year younger sister that is as much part of the community of shared values as the ECHR?

To guide this evaluation, the relevant paragraph in the Reykjavík Declaration is analysed in the light of what stakeholders, including various CoE bodies and NGOs, proposed the Reykjavík Declaration should include about economic and social rights. These proposals offer valuable input for the evaluation, as they are often the result of extensive discussions with various experts and/or are put forward by highly respected bodies. In order to put the proposals in perspective, their feasibility is discussed whenever this is possible based on publicly available sources. Solely focussing on the proposals made in the run-up to the Summit in Iceland would, however, largely ignore the ESC reform process that has been ongoing since 2014, the so-called Turin Process, and the valuable proposals that stakeholders have made in the course of this Process. Therefore, the evaluation is also based on these proposals, unless they have already been implemented.

The paragraph in the Reykjavík Declaration that concerns economic and social rights is evaluated in section 4 of this article. Subsection 4.1 analyses the items that are included in this paragraph and subsection 4.2 discusses two issues that were not resolved in the Reykjavík Declaration, but that have since been addressed.[9] Subsection 4.3 deals with what could have been included, but what did not make it to the Reykjavík Declaration, based on proposals that stakeholders tabled during the run-up to the Reykjavík Summit and the Turin Process. To provide context for these proposals, section 2 introduces the ESC treaties, their monitoring bodies and procedures in a nutshell. For the same purpose, section 3 describes the Turin Process and its current outcomes. Section 5 is the conclusion.

Although the main purpose of this article is to evaluate the attention that the Reykjavík Declaration pays to the ESC system, this article also informs the reader, en passant, about the latest outcomes of the Turin Process. Furthermore, it provides an inventory of the wide range of reform proposals concerning the ESC that have been put on the table since 2014. This inventory may prove to be useful to the High-Level Conference on the ESC that is to take place on 3-4 July 2024 in Vilnius, Lithuania.[10]

 

2. The ESC treaties, their monitoring bodies and procedures in a nutshell

This section provides an introduction to the ESC treaties, their monitoring bodies and procedures by discussing the relevant treaties and protocols in chronological order. The number of ratifications is mentioned in section 4.3.4.

 

2.1 The 1961 ESC

The first ESC was adopted in 1961 and entered into force four years later. Part I contains aims that the states parties ‘pursue by all appropriate means’.[11] The states parties undertake to accept as binding a minimum of five of the seven specified articles in Part II, which contain the so-called core provisions among other rights.[12] The seven core provisions protect, inter alia, the right to work, the right to social security and the right to social and medical assistance.[13] Additionally, the states must accept as binding at least 10 articles or 45 numbered paragraphs in Part II.[14] This ‘à la carte’ system allows states to be bound to the provisions that they already comply with. Subsequently, they should work on ensuring that domestic law and practice is brought further in line with the ESC, which ideally leads to ‘acceptance of most – if not all – provisions […], as opposed to an à la carte stagnancy’.[15] This ideal is based on in Article 20(3) 1961 ESC, which allows the states to accept additional provisions as binding, and Article 22 1961 ESC, which stipulates that the states can be asked to report on the provisions in Part II that they have not yet accepted.[16]

The 1961 ESC established a system of periodic state reporting.[17] Because this procedure has been reformed as a result of the Turin Process, it is described in section 3.1. Based on the reports, the European Committee of Social Rights (‘ECSR’), which is currently composed of 15 independent experts,[18] examines, from a legal standpoint the compliance of national laws and practice with the ESC.[19] In addition to the ECSR, the Governmental Committee of the ESC and the European Code of Social Security (‘GC’) plays a role in the ESC system. The GC is composed of one representative per ESC state party and prepares the work concerning the ESC of the Committee of Ministers (‘CoM’), which is responsible for following up to the findings of the ECSR.[20]

 

2.2 The 1988 Additional Protocol

The Turin Process is not the first reform process. Already in 1988, an Additional Protocol to the ESC was adopted, which entered into force in 1992.[21] This Protocol extends the rights in the 1961 ESC with four rights, including the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex.[22] Similar to the 1961 ESC, the 1988 Additional Protocol consists of two parts, the first including aims and the second undertakings, and an ‘à la carte’ system applies to the latter.[23]

 

2.3 The 1991 Protocol Amending the ESC

In 1991, the Protocol Amending the ESC was adopted to improve the state reporting system. This system was considered lengthy, overly burdensome because of the number of reports required, and too political.[24] This Protocol has not yet entered into force as not all states parties to the 1961 ESC have ratified it.[25] However, all provisions except one apply by decision of the CoM.[26] The exception is the provision stipulating that the CoE’s Parliamentary Assembly (‘PACE’) elects the members of the ECSR;[27] the CoM still elects them.[28]

 

2.4 The 1995 Additional Protocol

The Additional Protocol to the ESC Providing for a System for Collective Complaints was adopted in 1995 and entered into force three years later.[29] This system aims to improve the implementation of the ESC.[30] Complaints can be lodged to the ECSR by international employer organisations and trade unions, as specified in the 1961 ESC, certain international NGOs,[31] and representatives of national employer organisations and trade unions against ‘their’ state.[32] Additionally, a state can declare that it accepts the right of national NGOs to lodge complaints against it.[33] The ECSR forwards its decision on the complaint to the CoM and the parties.[34] The decision becomes public after the CoM has formulated a recommendation or after four months from the date of transmission to the CoM.[35] The text of the 1995 Additional Protocol provides that the CoM adopts a recommendation to the state if the ECSR found a violation.[36] However, until July 2020, the CoM had only adopted a recommendation once, despite findings of non-compliance by the ECSR in most cases that reached the merits stage.[37] Instead, the CoM adopted resolutions instead, in which it ‘merely took note […] of the state’s intention to bring the situation into conformity with’ the ESC.[38] Occasionally, the CoM asked the states to report on the execution measures taken and referred to their reasons for disagreeing with the ECSR’s decision, which can be interpreted as the CoM signalling its disagreement with the decision.[39] The state concerned must report to the ECSR on the actions taken to address the violation.[40] The follow-up procedure, including the CoM’s willingness to adopt recommendations, has changed as a result of the Turin Process and is therefore discussed in section 3.2.

 

2.5 The Revised ESC

Finally, the Revised ESC was adopted in 1996 and entered into force in 1999. While it was intended to replace the 1961 ESC, this has not yet occurred, because not all parties to the old treaty have ratified the new one.[41] Compared to the 1961 ESC, the Revised ESC contains new rights and amended rights[42] and provides enhanced protection to vulnerable groups, such as women and persons with disabilities.[43] The Revised ESC also includes the four rights of the 1988 Additional Protocol.[44] Again, an ‘à la carte’ system applies and the treaty is divided into parts, one with core provisions and another one containing aims. The parties to the Revised ESC must accept more obligations than the parties to the 1961 ESC: 6 of the 9 core provisions and an additional 16 articles or 63 numbered paragraphs.[45] The implementation of the obligations in the Revised ESC is submitted to the same two supervisory procedures as the obligations in the 1961 ESC: state reporting and collective complaints when a state has accepted this procedure.[46]

 

3. The Turin Process and its outcomes

As the previous section demonstrates, reform has been a constant feature of the ESC system. In 2014, during the High-level Conference on the ESC in Turin, the then CoE Secretary General Jagland launched yet another reform initiative: the Turin Process.[47] This political process aims to ‘re-launch’ the ESC and identified four ‘crucial imperatives’:[48]

1. ratification of the Revised Charter;
2. acceptance of the collective complaints procedure;
3. ‘strong synergies’ between the ESC and the EU to avoid legal rivalry; and
4. enhanced cooperation activities through training for example.

The conference’s rapporteur additionally emphasised the need to improve the collective complaints procedure and the implementation of the ESC.[49] Other high-level conferences and meetings followed.[50] The Turin Process has resulted, among other things, in a reform package that the CoM adopted on 27 September 2022, which the ECSR started implementing progressively in 2023.[51] The reform package concerns both the reporting procedure and the collective complaints procedure, which will be discussed in the following two subsections. Subsection 3.3 outines the path for future reform.

 

3.1 The reporting procedure

The CoM intends to improve the ‘efficiency and impact of the reporting procedure’ while also reducing the reporting burden.[52] To achieve this, the frequency of reporting is decreased from annual reports on one of four groups of rights, to reports every two years on one of two groups of rights.[53] For states that have accepted the collective complaints procedure, the frequency is reduced from biannual reports on all rights, to a short report on one of two groups of rights every four years.[54] The CoM encourages the ECSR to adopt a ‘selective and targeted approach’, asking the state ‘a limited number of targeted questions’ to the state.[55] This approach can be contrasted with the previous comprehensive approach of requesting information on ‘each accepted provision and responding to a growing number of questions posed and criteria developed by the ECSR’.[56]

Furthermore, the CoM stimulates the ECSR to change its approach to follow-up by avoiding asking questions to the state when assessing the report and discontinuing its practice of asking, in its conclusions, additional questions for response in the next report.[57] If a state fails to act upon the ECSR’ findings, the CoM may issue recommendation. The CoM adopted only 37 recommendations in the period 1993-2007.[58] In 2021, the GC stated its readiness to propose recommendations for adoption by the CoM, in particular in ‘those national situations where despite the seriousness of the issue, as well as its long-standing character, there has been no remedy or specific action taken’.[59] In May 2022, the CoM encouraged the GC to suggest recommendations in consultation with the state party that ‘encourage positive change’ and to ‘adopt a constructive, non-judgemental approach’.[60] Already in April 2022, the CoM adopted such a recommendation[61] and has continued this practice since, leading to the adoption of another 27 fairly specific recommendations.[62] For example, the CoM suggested that Turkey ‘pursue further its legislative reform without further delay and ensure the adoption of the necessary strategy to progressively provide access to occupational health services for all workers in all sectors of the economy’.[63] The CoM concludes the supervision cycle by adopting ‘very generally phrased’ resolutions that ‘do not add to the work of the ECSR’.[64]

In addition to the regular reports, the ECSR can now ask states to submit ad hoc reports on ‘new or critical issues […] with a broad or transversal scope or a pan-European dimension’.[65] Based on the ad hoc reports, the ECSR will ‘provide a general overview of the situations found and a broad legal analysis from a Charter perspective’, without assessing compliance as such.[66] The GC adopts the subjects and timing of ad hoc reports, after consultations with the ECSR.[67] In 2023, the ECSR and the GC requested the first ad hoc report on the cost-of-living crisis, and accompanied their request with 10 questions.[68]

 

3.2 The collective complaints procedure

The CoM did not consider it necessary to change the collective complaints procedure significantly.[69] Still, the CoM invited the ECSR to provide the state concerned with a timetable for examination.[70] Two other invitations seem to be redundant because they reflect the ECSR’s already changed practice: applying ‘strictly the admissibility requirements’ and ensuring ‘full respect for the adversarial dimension’ of the procedure, including by offering the states the possibility to comment on submissions.[71]

Following the Turin Process, the states have to submit one single report on follow-up, two years after the CoM addressed a recommendation to the respondent state in a case where the ECSR found a violation.[72] As was explained in section 2.4, the CoM adopted such a recommendation once. However, since July 2020,[73] it has changed its approach and adopted an additional 28 recommendations,[74] in which it summarises rather elaborately the ECSR’s findings and the response of the state concerned. Additionally, the CoM recommends execution measures and reminds the state that the report on follow-up must be submitted within two years.[75] The recommended execution measures are often quite specific. For example, asking the state to ensure that there are ‘reliable and detailed’ statistics, taking measures to implement domestic law ‘without any further delay’ and ensuring ‘sufficient flexibility’ in the application of the eligibility criteria for the allocation of disability compensation benefit.[76]

The CoM envisages that dialogue will be ‘an integral part of the follow-up procedure’ of both the reporting and collective complaints procedure.[77] The dialogue should take place between the ESC monitoring bodies and the authorities of the states, if need be, in groups of states and with the involvement of social partners and civil society organisations when appropriate.[78] The dialogue can take the form of requests for information, letters, meetings, and country visits.[79]

 

3.3 Future reform

The reform process has not come to an end with the adoption of the 2022 package. On 15 March 2023, the CoM adopted a decision identifying ‘the longer-term substantive and procedural issues that will need to be kept under review in future’.[80] These issues feature in the next section, with the aim of determining whether the Reykjavik Summit has led to significant progress. In addition, it is anticipated that the High-Level Conference on the ESC will provide an impetus for reform.[81]

 

4. The Reykjavík Declaration and economic and social rights

The Reykjavík Declaration states the following about economic and social rights:[82]

‘Social justice is crucial for democratic stability and security and in this regard we reaffirm our full commitment to the protection and implementation of social rights as guaranteed by the [ESC] system. We will consider the organisation of a high-level conference on the [ESC], as a step to take further commitments under the Charter where possible’.

Subsection 4.1 discusses what the above paragraph includes, whereas subsection 4.2 pertains to what was not decided upon in Reykjavík, but has been decided on in the meantime. Subsection 4.3 discusses what the document does not include. Apart from these more or less specific points, it is striking to note that the Reykjavík Declaration does not refer to the Turin Process, a major reform process that has been going on for over a decade, whereas it does refer to the Interlaken Process that has resulted in reforming the ECHR system.[83]

 

4.1 Items included

When reading the paragraph dedicated to social justice in the Reykjavík Declaration carefully, it appears that the states made two main points.

 

4.1.1 Economic and social rights vis-à-vis democratic stability and security

The Reykjavík Declaration links ‘social justice’ to ‘democratic stability and security’.[84] Therefore, a link is made between social justice and one of the three ‘core values’ of the CoE: democracy.[85] The PACE also made this connection in the run-up to the Summit, stating that increased attention to economic and socials rights could help ‘address one of the root causes of the backsliding of democracy’.[86] As previously stressed by the PACE:[87]

A healthy democracy is inextricably linked to economic, educational and social policies; these should respond to the needs of the people and aim to reduce social inequalities that breed political disaffection, distrust and resentment against the political establishment and that lead to populism and sometimes violent reactions’.

Making this connection is not new; it was also made during the Turin Process.[88] Still, reiterating this connection in the Reykjavík Declaration is to be welcomed, considering the instances of democratic backsliding in Europe[89] and because the connection underlines the far-reaching importance of social justice and, therefore, of the ESC.

 

4.1.2 Reaffirmation of the states’ commitment to the ESC

As the CoE’s Secretary General Burić emphasized in 2021, it was ‘high time to confirm clearly and unambiguously, at the highest political level, that the [ESC] provides a response to today’s social challenges in Europe’. She also called on the states ‘to show a renewed commitment to the common objectives underpinning’ the ESC.[90] It is to be welcomed that the states took up this suggestion and reaffirmed their ‘full commitment to the protection and implementation of social rights as guaranteed by the [ESC] system’.[91] This sentence from the Reykjavík Declaration now features in some of the CoM’s recommendations that it adopts under the reporting procedure,[92] which helps to remind the states to put their money where their mouth is.

Although of great symbolic importance, the reaffirmation is hardly more than that, because it is not accompanied by more concrete promises that would lead to concrete results. Such promises could have related to the topics discussed subsection 4.3, which include means to improve the implementation of the ESC generally and the ECSR’s findings specifically, enhanced commitments to the ESC system, and substantive as well as procedural reforms.

 

4.2 Items postponed

Two items are not dealt with in the Reykjavík Declaration, but have been dealt with relatively shortly thereafter and before this article was finished on 1 April 2024. The first item was expressly postponed in the Reykjavík Declaration; the other one was not mentioned at all in the document.

 

4.2.1 The organisation of a high-level conference on the ESC

In the Reykjavík Declaration, the states indicate that they were going to consider organising a high-level conference on the ESC ‘as a step to take further commitments’ under the ESC. As stated in section 1, they have now decided to hold such a conference. The ECSR has welcomed this decision, since it had previously mentioned the idea of an ‘ad hoc Conference of the parties aimed at giving impulse to the reform process’ in 2020.[93] Since subsection 4.3 is dedicated to what could be regarded as omissions when it comes to the ESC in the Reykjavík Declaration, this subsection serves as food for thought for the ad hoc Conference.

 

4.2.2 Increased budget[94]

As will be noted in section 4.3.1, the Reykjavík Declaration singles out the ECtHR as an institution that needs financial sustainability. The spotlight is put on the ECtHR even though it benefitted from over 80 percent of the increase in the CoE’s budgetary posts in the period 2000-2020.[95] Still, the ECtHR’s budgetary situation has been far from ideal. Its regular budget allocation decreased from 629 posts in 2011 to 585 in 2021.[96] Overall, the CoE’s budgetary situation cannot be described as rosy: the organisation’s real budget decreased as a consequence of the CoM’s zero-nominal-growth policy in the period 2010-2020.[97] From 2020-2023, the CoM maintained a policy of zero-real-growth.[98] These policies, coupled with Russia’s past refusal to pay its outstanding membership contributions has made the CoE’s budgetary situation ‘difficult’.[99]

During the Turin Process, various actors have proposed increasing the budget of the ESC system, which would show that the states’ commitment to the ESC is not only symbolic, but also translates into something tangible and much needed.[100] The budget of the ESC system was subject to negative real growth the past 10 years,[101] raising doubts as to whether the ‘national situations [can be] considered at the level of detail that the States have a right to respect’.[102] Indeed, in 2021, the ECSR described the budgetary situation as ‘non sustainable and not compatible with a strengthening of the [CoE’s] social rights framework in general nor with a credible re-vamping of the reporting procedure in particular’.[103] More budget was necessary, because the workload on the ECSR has increased over the past three decades, due to the more than doubled number of ratifications and accepted provisions[104] and the creation of the collective complaints procedure.[105] Moreover, the number of complaints and third-party comments has increased significantly,[106] resulting in a backlog and a lengthy procedure of 40 months on average before the ECSR reaches a decision on the merits.[107] The reform package that CoM adopted in 2022 has added to the workload, as the ECSR can now, inter alia, request ad hoc reports and is expected to engage in enhanced dialogue with the states.[108] The ECSR cannot give ‘proper effect’ to such reforms if the budget had remained the same.[109] The additional reform measures discussed in this paper, such as increasing the visibility of the ESC system and the number of ECSR members,[110] would add even more to the workload.

In 2008, the CoM noted that it would bear the increased workload on the ECSR and the GC ‘in mind in its budget discussions’.[111] However, neither the reform package adopted on 27 September 2020 nor the CoM’s decision of 15 March 2023 mentioned the word ‘resources’ or ‘budget’. These words do not appear in the latter document, even though the last meeting of the GT-CHARTE (Ad hoc Working Party on improving the ESC system), which prepared the decision, ‘focused mostly around the question of resources’.[112] In the previous year, the same working party had decided not to address ‘the question of resources which should be consequential to any changes and not prejudice them’.[113] Considering the number of changes that have already been implemented,[114] this approach is surprising.

Increasing the budget of the ESC system is not mentioned in the Reykjavík Declaration either. However, in December 2023, the CoM decided to increase the organisation’s budget in a ‘not insignificant’ manner.[115] This increase also has positive effects for the ESC system. Despite the Reykjavík Declaration’s failure to mention any additional budget for the ESC system, and the lack of focus on the budget in the reform discussions and documents, the CoM has responded to the calls for increased funding. In the CoE’s programme and budget 2024-2027, which was adopted on 19 December 2023, the total budget reserved for the ‘effective implementation of the [ESC]’ is €8477K for 2024 and €8818.6K for 2025,[116] whereas the total budget reserved for ‘social rights’ was €4808.7K in 2023.[117] Additionally, the number of posts of the ECSR’s Secretariat has increased from 21.5 (2023)[118] to 23.5 (2024-2025).[119] This positive development will help ensure that the reform proposals discussed in section 3 can indeed be implemented.

 

4.3 Items not included

 

This section discusses several items that could have been included in the Reykjavík Declaration, in order to put in practice the states’ reaffirmation of their ‘full commitment to the protection and implementation of social rights as guaranteed by the [ESC] system’.[120] As was explained in section 1, these items have been identified based on proposals that stakeholders tabled during the Turin Process and the run-up to the Reykjavík Summit. The existence of these proposals serves to underline that the Reykjavík Declaration could have given more specific guidance on putting in practice this reaffirmation, but that the states failed to do so. However, as the example of the budget shows, these aspects might simply have been postponed; only the outcome of the Vilnius Conference will tell.

 

4.3.1 The indivisibility of human rights

It is remarkable that the Reykjavík Declaration does not reaffirm the indivisibility of human rights, more than 30 years after the 1993 World Conference on Human Rights had concluded that:

‘All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis’.

This conclusion is echoed in the CoE’s Vienna Declaration,[121] which was adopted at the first CoE Summit of heads of states and governments in 1993. That Declaration was preceded by a comparable statement adopted at the 1990 Ministerial Conference on Human Rights, to which the preamble of the Revised ESC refers.[122] Considering these precedents, a reference to the indivisible nature of human rights was not implausible. In 2014, former Secretary General Jagland noted that ‘[t]here is still a long way to go before social rights achieve the same recognition as civil and political rights’.[123] The Reykjavík Declaration does not contribute to closing the gap despite the aforementioned precedents that emphasised the indivisible nature of human rights.

Rather than being ‘an ambassador of the indivisibility of human rights’, as a PACE rapporteur proposed the CoE should be in Reykjavík,[124] the Reykjavík Declaration could be interpreted as doing the opposite: it mainly emphasizes the importance of the ECHR—the CoE’s predominantly civil and political rights treaty. To illustrate, the ECHR and the European Court of Human Rights (‘ECtHR’) are called the ‘ultimate guarantors of human rights across our continent, alongside our domestic democratic and judicial systems’[125] and the ‘the cornerstone’ of the CoE’s human rights protection.[126] Additionally, when it comes to the CoE’s budget, the ECtHR is singled out as an institution that ‘especially’ needs financial sustainability.[127] It is also telling that the wording used to reaffirm the states’ commitment to the two treaties differs and seems to be stronger for the ECHR. Whereas the states reaffirm their ‘full commitment’ to the ESC system, they reaffirm their ‘deep and abiding commitment’ to ECHR system.[128] Moreover, while the ESC is the subject of only one paragraph, a three-page appendix is dedicated to the ECHR. The heavy emphasis on the ECHR can be regarded as being detrimental to the protection of the ESC rights, considering that the states’ attention and the CoE’s budget are scarce.

 

4.3.2 Means to improve the implementation of the ESC

As mentioned in section 4.1.2, although the states reaffirmed their commitment to the implementation of social rights in the Reykjavík Declaration, they do not flesh out their commitment with concrete ideas. Such ideas do exist and, moreover, are sometimes supported (in part) by the CoM. This subsection presents three ways to enhance the implementation of the ESC and, thus, how the states could have fleshed out the said commitment. First, the states could have called on themselves to redouble their efforts to implement the ECSR’s decisions (collective complaints procedure) and conclusions (state-reporting procedure).[129] The states have already taken several measures, including amending legislation, to ensure compliance with the ESC[130] and seem to accept the ECSR’s findings in the ‘great majority of cases’.[131] It is particularly useful to establish a national mechanism that includes ‘representatives from all relevant ministerial departments’ responsible for coordinating the follow-up to the ECSR’s findings.[132] There is room for improved implementation of these findings, considering that certain incompatibilities that the ECSR brought to the light (a long time ago) continue to exist.[133] Reasons for the states’ failure to comply include insufficient funds allocated to economic and social rights, complex implementation processes and a lack of political will. Disagreement with the ECSR’s findings can also be a reason. The states sometimes view the findings them as ‘unfounded or too extensive’.[134]

The states have voluntarily accepted the state-reporting system by ratifying the ESC and, possibly in addition to that, the collective complaints procedure. Therefore, it should have been possible for them to make a commitment to implement the findings of the ECSR, but this has not been done. By contrast, the states do reaffirm their ‘unconditional obligation to abide by the final judgments’ of the ECtHR in the Reykjavík Declaration.[135] This difference can be interpreted as yet another illustration of the document’s emphasis on the predominantly civil and political rights in the ECHR.[136] However, the difference can probably also be explained in part by the legally binding nature of the ECtHR judgments,[137] whereas the ECSR’s findings are not legally binding[138] as such. Still, the findings of the ECSR, ‘as the only competent body to interpret’ the ESC, should not be disregarded lightly; they are ‘authoritative’.[139] Moreover, while the decisions or conclusions themselves are not legally binding, they do require the states to inform the ECSR of the measures taken in response to them.[140] Second, the states could have identified ways to increase the visibility of the ESC system and the awareness among domestic stakeholders of that system, which is still relatively unknown.[141] The CoE states agree that awareness-raising and visibility activities concerning the ESC system should be developed.[142] Therefore, it is hardly surprising that the CoM recommended the GC in its decision of 15 March 2023 to prepare a recommendation that addresses the promotion of education and training[143] on the ESC system and ways to ‘enhance communication and awareness raising about the Charter and [ECSR] decisions and conclusions at national level’.[144] In the same decision, the CoM also took note of the need to explore possibilities of expanding’ the ESC aspects of the Programme on Human Rights Education for Legal Professional (‘HELP’).[145] Furthermore, the CoM considered it necessary to expand ‘co-operation activities to assist member States in the social rights field’.[146]

Suggestions by other stakeholders to enhance the visibility of the ESC system include ensuring that translations are available of the ECSR’s decisions and conclusions, which can be uploaded to HUDOC-ESC.[147] Another suggestion is to stimulate the states to share good practices with the help of the CoE.[148] This includes the practice of conducting social impact assessments before adopting legislation or policy, in order to assess whether domestic changes lead to incompatibilities with the ESC.[149]

Third and finally, the effectiveness of the ESC’s monitoring process could be improved. Key to this process is that the states respect their obligation to comply with the obligation to submit relevant information under the reporting procedure within the deadline. Currently, the states do not live up to this obligation sufficiently, ‘despite repeated requests’ of the GC to send in information before the deadline has expired.[150] Consequently, the ECSR was unable to assess the situation in 111 cases (on a total of 611 conclusions) in 2022.[151] The CoM took up this issue in a recommendation addressed to seven states,[152] asking them to comply with the reporting obligation, to respect the requests for information, and to establish ‘effective domestic mechanisms’ for these purposes.[153] Another way to improve the effectiveness of the monitoring process would be to ‘involve national NGOs more closely in the regular supervision process’.[154]

 

4.3.4 Additional commitments to the ESC system

The Reykjavík Declaration could have called on states to undertake additional commitments under the current versions of the ESC. [155] This would have been feasible, as the CoM had already done so in 2019 and 2023.[156] These previous calls have had ‘limited’ effect however.[157] Since the start of the Turin Process in 2014, three states[158] ratified the Revised ESC and one state[159] accepted the collective complaints procedure. Furthermore, three states accepted additional provisions under the Revised ESC.[160] The Reykjavík Declaration defers this point to the future, with states promising to ‘consider the organisation of a high-level conference on the [ESC], as a step to take further commitments under the Charter where possible’.[161] This procrastination and the words ‘where possible’ indicate a lack of consensus on the matter. If a consensus can nevertheless be found, the states can undertake additional commitments in four main ways.

First, they can accept more obligations. In particular, the four states[162] that have not ratified any of the texts of the ESC and the seven states[163] that have only ratified the 1961 ESC should ratify the Revised ESC.[164] The Revised ESC is the preferred treaty, because it ‘corresponds to the major social issues arising in present-day Europe (gender equality, reconciliation of work and family life, population ageing, poverty, and exclusion)’.[165] Moreover, the Revised ESC obliges its states parties to accept more obligations than the 1961 ESC.[166] Another way to accept more obligations would be accepting more provisions under the ‘à la carte’ system. Although the idea behind this system is that the states gradually accept more, and possibly all, provisions,[167] only 3 of the 35 parties to the Revised ESC have accepted all provisions[168] and none of the parties to the 1961 ESC have accepted all provisions.[169]

In order to stimulate the states to accept more provisions, the ECSR has strengthened its follow-up procedure on non-accepted provisions under Article 22 1961 ESC. This provision provides that the states can be asked to report on provisions that they have not accepted.[170] These reports enable the ECSR to indicate which additional provisions a state could accept.[171] The ECSR took this step after the CoM invited it to ‘make full use of the opportunities for dialogue offered by’ this provision and ‘to include in this exercise a dialogue with the member States that are not yet Party to the Revised Charter, with a view to encouraging them to ratify it’.[172] The Rapporteur Group on Social and Health Questions examines the reports and prepares recommendations to the involved states in consultation with the GC.[173] The states, however, do not take this procedure sufficiently seriously: of the four reports requested in 2022, the ECSR received only two.[174] Therefore, the Reykjavík Declaration could also have encouraged the states to respect their obligations under this procedure.

Second, the four states[175] that have not ratified the 1991 Protocol Amending the ESC should do so.[176] However, in 2010, a PACE rapporteur noted that ‘despite the efforts made by various [CoE] organs, including the Assembly itself, these four states do not seem prepared to ratify the protocol in the near future’.[177]

Third, the 30 states that have not ratified the 1995 Additional Protocol to the ESC Providing for a System for Collective Complaints could be asked to ratify this Protocol.[178] A concrete advantage for these states would be that ratification reduces the burden on the domestic authorities responsible for preparing reports under the reporting procedure, considering that the reporting burden on the states that accepted the collective complaints procedure has reduced.[179] A connected proposal is making the procedure obligatory.[180] However, considering that only 16 states have accepted this procedure, it is improbable that this proposal will be implemented any time soon.

Fourth, the states permitting collective complaints could be asked to extend the right to lodge complaints to national NGOs.[181] Currently, only Finland has made a declaration to that effect.[182] Involving more (national) NGOs is important, because they are the most active non-state participants in the system.[183] Moreover, NGOs can contribute to diversifying the type of complaints that the ECSR receives, since complaints by trade unions mainly concern labour rights.[184] Opening the procedure to more organisations could lead to more complaints. Although this adds to the ECSR’s workload,[185] more complaints would enable the ECSR to elaborate on the ESC standards in concrete case, potentially enhancing the visibility, awareness and impact of the ESC on the domestic level.[186]

The reasons for not accepting additional provisions are varied. Some states view the ratification process for accepting additional provisions as a barrier, because it is a complex procedure that places a significant burden on the domestic authorities in charge of examining whether accepting additional obligations is possible.[187] In other words, the political will may be present, but ‘the means and mechanisms to implement’ additional obligations are lacking, due to a lack of capacity or budget.[188] Other reasons for not accepting additional provisions relate to the content of the ESC or findings of the ECSR. These reasons also explain why certain states may not want to ratify the Revised ESC.[189] Either the ESC standards or the reporting obligations may be contrary to domestic practices, laws and/or may not be deemed financially feasible. Political will or internal consensus can also be lacking, in particular considering the current political and economic climate. To illustrate, states may fear that ratification of the ESC would have consequences for migration policy. Unwillingness can also be explained by disagreement with the ECSR’s decisions or the ECSR’s interpretation of the ESC, which some states regard as overly broad in, for example, the sphere of non-discrimination.[190] The reasons for not wanting to accept the collective complaints procedure are in part comparable to the substantive reasons given by states give for not accepting additional substantive obligations. Additional reasons for not accepting the procedure include that potential plaintiffs may not be very interested in submitting complaints or that the procedure may be contrary to domestic law. Some states also explained that the ECSR should apply the admissibility criteria in a stricter manner, that the procedure should be more adversarial and that the follow-up procedure should be more effective.[191] These three points have now been addressed as a result of the Turin Process,[192] which possibly increases the states’ willingness to ratify the 1995 Additional Protocol, which the states do regard as important.[193]

 

4.3.5 Substantive reforms

Yet another way to put the Reykjavík reaffirmation of the full commitment of states to the protection and implementation of the ESC rights in practice is to amend the Revised ESC. Amendments could result in broadening its scope, expanding the number of obligations that the states need to undertake, and modernising it by other means. This option would be more ambitious than those considered in subsection 4.3.4. Amending this treaty requires that the states parties unanimously adopt an additional protocol, which has proven to be a major stumbling block to reform in the past, as the 1991 Protocol Amending the ESC has still not entered into force.[194] Currently, the states are hesitant about new amendments.[195]

More specifically, the number of core provisions and the number of core provisions that the states need to accept could be increased.[196] Additionally, the possibility of drafting a new consolidated ESC could be explored, because the ‘current situation with two Charters, several Protocols (one of which is not in force) and with some procedural provisions having been superseded by [CoM] decisions, is unnecessarily complex, hinders clarity and legal certainty and is a significant obstacle to accessibility for a wider public’.[197] The states do not support these proposals however.[198] A less ambitious idea is to revise or eliminate parts of existing rights, either because they are ‘outdated’ or do not lend themselves to useful application.[199] Some delegations to the GT-CHARTE have supported this idea. Yet another proposal goes in the opposite direction and is to add paragraphs to existing rights in order to cover ‘significant topics’ that are currently missing, such as sexual and reproductive health.[200] Comparably, completely new rights could be added, such as the right to water, the right to food, the right to a healthy environment, and rights protecting non-standard forms of employment[201].[202] Adding new rights has been recommended ‘in order to take full account of the evolving social context and expectations of the public’.[203] The states do not seem inclined to accept new rights, however. They prefer focussing on implementing the reform package of 2022 and on improving the implementation of the ESC and the commitments to the ESC.[204] Additionally, the states point out that there is room for interpretation, because the ECSR can apply the existing provisions to emerging or new issues and the states have invited the ECSR to do so.[205] In case this approach does not work, the CoM has invited the GC to consider how gaps in the ESC can be filled, ‘through the possible elaboration of soft law instruments […] or other means’.[206]

Concerning the right to a healthy environment, specifically, the states commit ‘to strengthening our work on the human rights aspects of the environment’ in the Reykjavík Declaration.[207] To implement this commitment, they initiated the Reykjavík Process, which they further explain in an appendix to the Reykjavík Declaration.[208] Before the Summit, the CoM instructed the CDDH to report about ‘the need for and feasibility of a further instrument or instruments on human rights and the environment’.[209] One of the possibilities that the CDDH explores is an Additional Protocol to the ESC codifying the right to a healthy environment. The CDDH notes in one of its draft reports that the ESC’s two monitoring instruments are ‘well suited’ to ‘obligations concerning collective human interests such as protection of the environment’, including because domestic remedies do not need to be exhausted and because organisations that are not the victim can bring a case.[210] Additionally, both positive and negative obligations apply and the procedures are non-binding, which is ‘arguably more appropriate in an area where difficult policy choices need to be made’.[211] However, their non-binding nature also carries with it a ‘risk of non-implementation’.[212] On the negative side as well, the impact of an Additional Protocol to the ESC may be ‘limited’, considering that only 16 states have accepted the collective complaints procedure and taking into consideration the ESC’s limited personal scope.[213]

This issue is regularly brought up in reform discussions. The personal scope of the ESC is restricted to ‘nationals of other Parties lawfully resident or working regularly within the territory of the Party concerned’.[214] This restriction is contrary to ‘the spirit of social equality, solidarity and non-discrimination’ of the ESC, the importance that international human rights law attaches to protecting vulnerable persons[215] and the indivisibility of human rights.[216] That is why the ECSR does not interpret this provision solely based on its literal meaning, but in line with international law and in the light of the ECS’s object and purpose,[217] which is to ‘give life and meaning in Europe to the fundamental social rights of all human beings’.[218] Consequently, the ECSR does not interpret this restriction in a manner that would deprive ‘unlawfully present migrants of the protection of the most basic’ ESC rights ‘or impair their fundamental rights such as the right to life or to physical integrity or the right to human dignity’.[219] Put differently, the ECSR exceptionally extends the ESC’s personal scope when this is necessary to protect basic rights.[220] Even though ‘several States took issue with this interpretation’,[221] multiple stakeholders have proposed broadening the personal scope to nationals from non-parties who are lawfully resident or work regularly in a state party.[222] Most states disagree with such an amendment, however.[223] Therefore, it has been proposed that the states parties that support extending the personal scope adopt a declaration to that effect,[224] but no state has done so yet.[225]

 

4.3.6 Procedural reforms

In addition to substantive reforms, the states could have decided on procedural reforms in Reykjavík, in order to implement their reaffirmation of their full commitment to the protection and implementation of the ESC rights. These reforms would supplement the procedural reforms that the CoM has already included in the 2022 reform package.[226]

Several proposed procedural reforms concern the membership of the ECSR. The number of members, which has been 15 since 2005 (and 14 in practice for almost two years), could be increased.[227] This measure would help to cope with the increased workload and to ‘ensure a better overall balance […] [between] the different legal traditions and social models in Europe’.[228] Additionally, ad hoc members could be appointed when the ECSR does not have a member who is a national of the respondent state,[229] in order ‘to ensure that the domestic situation be fully considered, in all its complexity’.[230] However, this could also be ensured by other means: increasing the number of meeting days and the resources devoted thereto, making sure that the procedure is adversarial and requesting observations from national human rights institutions (‘NHRI’s).[231] Additionally, the members could be given a single non-renewable term of nine years instead of the once renewable term of six years that they have now.[232] Another proposal concerns the election of the ECSR’s members, which is still done by the CoM instead of the PACE, because the 1991 Protocol Amending the ESC has not yet entered into force.[233] The PACE could elect them in order to demonstrate the states’ commitment to the ESC, [234] to increase the ECSR’s ‘democratic legitimacy’ and possibly also to increase the states’ acceptance of its decisions and findings.[235] The CoM did not consider it ‘appropriate’ to implement this change itself thus far[236], so the heads of states and governments could have decided to do so at the Reykjavik Summit.

An idea unrelated to the ECSR’s membership is publishing the ECSR’s decisions immediately, with a view to increasing the visibility of the collective complaints procedure[237], and thus to remove the embargo of a maximum of four months.[238] Although individual states could accept immediate publication, the CoM could also unanimously decide to implement this change.[239] There is ‘some support’ for this idea[240] and the CoM invited the states that have accepted the procedure to ‘consider, individually or collectively, reducing or entirely renouncing’ the embargo’.[241]

Yet another suggestion, mentioned previously, is that the ECSR more often invites third parties, and in particular NHRI’s, to intervene.[242] Such interventions not only improve the quality of the information before the ECSR, but also stimulate NHRI’s to become involved in implementing the ESC.[243]

A proposal of again another nature is that the ECSR adopts more statements of interpretation,[244] which would increase the visibility of the ESC system as addressed in section 4.3.2. These statements are important, because, as Alston noted critically, the ‘formal output of the Committee’s procedures provides useful grist for the academic mill but little material in a form likely to be picked up by civil society, national courts, or legislators’.[245] The ECSR could seek inspiration from the UN human rights treaty monitoring bodies that ‘have made very effective use of the technique of adopting General Comments’.[246] The ECSR could also reconsider the format of the statements. Currently, it is not easy to consult the numerous statements that it has adopted, as they lack titles clearly identifying their content. Additionally, they are very short because the same provision is discussed in different statements rather than in a comprehensive manner.

 

4.3.7 Accession of the EU to the ESC[247]

The last major reform possibility that has been mentioned every now and then,[248] including by EU actors,[249] is inviting the EU to accede to the ESC.[250] In fact, even in the ‘Draft elements for final outcome document’, i.e. the very first draft of the Reykjavík Declaration, the idea was mentioned to ‘[i]nitiate, together with the EU, a process of review of existing commitment under EU law related to the [ESC], with the view of facilitating the accession of the EU to the [ESC]’.[251] However, this idea has not made it to the final document. The EU has already acceded to other human rights treaties[252] and must accede to the ECHR.[253] The long and complex process of accession to the ECHR was brought closer to the end right before the start of the Reykjavík Summit, with provisional agreement being reached on the revised draft accession agreement. In the Reykjavík Declaration, the states welcome this development.[254]

However, the states do not mention the possible accession of the EU to the ESC. Still, many regard the EU’s accession to the ESC as important because EU law obligations may be in conflict with the ESC, which is particularly problematic considering that all EU member states are parties to the ESC,[255] although their exact obligations differ due to the ‘à la carte’ approach and due to the existence of two treaties. In case of a conflict with EU law, the ECSR is not prepared to water down the ESC’s requirements. Unlike the ECtHR, the ECSR had not developed a (rebuttable) presumption of compliance with the ESC that can apply when the EU member states implement EU law without having any discretion.[256] On the contrary, the ECSR holds that ‘neither the situation of social rights in the [EU] legal order nor the process of elaboration of secondary legislation would justify’ such a presumption.[257] This finding was reinforced by the ‘the lack of political will of the [EU] and its member states to consider at this stage acceding’ to the ESC.[258]

For the EU, accession would promote the implementation of the European Pillar of Social Rights,[259] which already seeks inspiration from the ESC.[260] Accession would also increase the credibility of the EU’s commitment to these rights.[261] This is important considering that, even though the EU already exercises ‘extensive competence’ in policy areas relating to the ESC rights,[262] it is neither required to respect these rights nor to reflect on possible incompatibilities.[263] It is illustrative that the EU Charter of Fundamental Rights only includes certain social rights and that the CJEU ‘hesitates to fully acknowledge the [ESC] as a source of inspiration for the development of fundamental rights among the general principles of law’.[264] Furthermore, the European Commission does not rely expressly on the ESC in its impact assessments of new EU initiatives.[265]

While the ‘à la carte’ system could facilitate accession by allowing the EU to undertake commitments that are commensurate with its competence up to a certain extent,[266] different reasons exist why the EU and its member states do not want to go down this route. One reason is that accession would make it even clearer (than the ECSR already did when refuting a presumption of compliance) that the EU’s protection of the economic and social rights is not up to scratch.[267] Another reason is that accession could be seen as contrary to the supremacy of EU law, since ‘the judgments of the CJEU would effectively be subservient to the views of the ECSR’.[268] However, because the views of the ECSR are not binding from a strictly legal point of view,[269] this problem should not be overstated. Lastly, certain EU members states ‘have always displayed a strong suspicion of economic and social rights’ and, therefore, also oppose the EU’s accession to the ESC.[270] This suspicion translates into the fact that five of the seven states that have only ratified the 1961 ESC and not the Revised ESC are EU member states[271] and that three of the four states that have not ratified the 1991 Protocol Amending the ESC are EU member states[272].

The CoE states at large do not seem too eager to pursue accession either. The delegations to the GT-CHARTE were ‘reticent to taking steps immediately in connection with’ accession;[273] they prefer to prioritise accession to the ECHR[274] and ‘some’ want to wait until that process has been drawn to a close.[275] Although these delegations had ‘no fundamental objections’ to the idea of the EU’s accession to the ESC, ‘many’ referred to the difficult process of the EU’s accession to the ECHR.[276] Anyway, they did agree about ‘the desirability of strengthening cooperation with the EU at all levels with regard to the implementation of the [ESC] and the European Pillar of Social Rights’.[277]

 

5. Conclusion

 

This article provides an evaluation of the paragraph dedicated to the ESC system in the Reykjavík Declaration, based on proposals for reform of the ESC system made in the run-up to the Summit in Iceland and during the Turin Process. Two separate points were extracted from this paragraph. The Reykjavík Declaration is certainly of great symbolic importance to the ESC system as a result of the two points that it includes. First, the document emphasised the far-reaching importance of the ESC rights by linking social justice to democratic stability and security. Second, the states reaffirmed their full commitment to the protection and implementation of social rights as guaranteed by the ESC. Considering these two points, the ESC certainly fits into the community of shared values that the CoE aspires to be. Another important symbolic point is lacking however: confirming the indivisibility of human rights. Confirming this would have been a way to compensate for the heavy emphasis on the ECHR system in the Reykjavík Declaration and was attainable since it featured in previous declarations.

What is also lacking are more concrete plans to flesh out the states’ reaffirmed commitment to social rights. As section 4.3 demonstrates, there is no shortage of ideas. One of the two items that was postponed—taking the decision to organise a high-level conference on the ESC—is both of symbolic and practical importance. A positive reading of the Reykjavík Declaration would be that, considering that this high-level conference is going to take place in Vilnius in July 2024, discussing more concrete plans for the ESC was only postponed in Reykjavík; this is going to happen in Vilnius. Admittedly, a conference specifically dedicated to the ESC may be a more appropriate venue to come to concrete plans than a generic summit as the one in Reykjavík, also considering that the Reykjavík Summit was to a large extent a reaction to Russia’s war on Ukraine and taking into account the many and varied issues that the Reykjavík Declaration addresses. Still, the states did take the time to address the ECHR and some other issues elaborately in the Reykjavík Declaration.[278] Therefore, although the ESC fits into the CoE’s community of shared values, the ESC system is probably not as much the CoE’s top priority as the ECHR system is.[279]

The conference in Vilnius is part of the ongoing reform process of the ESC system, which runs like a thread through its history as section 2 described, and as is evidenced by the CoM’s decision of 15 March 2023 on long term substantive and procedural issues that it keeps under review. The then CoE Secretary General gave this process a fresh impetus in 2014, announcing the relaunch of the system, which is now known as the Turin Process, as discussed in section 3. The CoM has demonstrated its commitment to the reform process by taking seriously its task to adopt recommendations to the state parties as part of the follow-up phase of both monitoring procedures. Additionally, the ESCR’s commitment to this process is evident from its implementation of the changes that the CoM suggested, which concerned the state reporting procedure in particular. Moreover, by deciding to significantly increase the CoE’s budget allocated to social rights after the adoption of the Reykjavík Declaration, the CoM has not only shown its commitment to the reform process, but has also facilitated the actual implementation of the reforms. It is not unlikely that the states will agree in Vilnius on the importance of improving the implementation of both the ESC and the ESCR’s findings and on undertaking additional commitments.[280] They will probably accept certain procedural reforms.[281] However, it will probably prove difficult to reach agreement on including a statement on the EU’s accession to the Revised ESC, on calling on the states that have accepted the collective complaints procedure to accept that NGOs can file complaints[282] and on substantive reforms,[283] apart perhaps from revising or eliminating parts of existing rights.

The Reykjavík Declaration and the upcoming Vilnius Declaration are collaborative efforts. Despite this article’s focus on joint declarations and shared values, we should not lose sight of what states can do individually and at home to flesh out their reaffirmed commitment to social rights in the Reykjavík Declaration. In the end, only individual states can implement the ESC and ensure adequate follow up to the ECSR’s findings in their own systems. Additionally, only individual states can make sure that they submit the information that the ESCR requires as part of the state reporting procedure and that they submit ad hoc reports and reports on the provisions that they have not yet accepted. Finally, they can boost the system individually by accepting additional obligations[284] and by declaring that they extend the ESC’s personal scope and/or allow the ECSR to publish its decision immediately.

[1] Preamble to the Statute of the Council of Europe, 5 May 1949, ETS No. 1.

[2] 1961 ESC, 18 October 1961, ETS No. 035; Revised ESC, 3 May 1996, ETC No. 163.

[3] Marija P. Burić, ‘Foreword’, in: The Academic Network on the ESC and others (eds.), The European Social Charter: A Commentary, Brill Nijhoff, Leiden 2022.

[4] Reykjavík Declaration, United Around our Values, Reykjavík Summit, 4th Summit of Heads of State and Government of the Council of Europe, 16-17 May 2023, p. 3.

[5] See CoE, ‘Monitoring Mechanism’, as pointed out by Philip Alston, ‘Assessing the Strengths and Weaknesses of the European Social Charter’s Supervisory System’, in: Gráinne De Búrca and Bruno De Witte (eds.), Social Rights in Europe, OUP, Oxford 2005, p. 46. Convention for the Protection of Human Rights and Fundamental Freedoms, 2 September 1949, ETS. No. 002.

[6] Alston (n. 5), p. 47.

[7] See Section 4.

[8] Alston (n. 5), p. 47.

[9] I.e. before finishing this article on 1 April 2024.

[10] See Section 4.2.1.

[11] Article 20(1)(a) 1961 ESC.

[12] Article 20(1)(b) 1961 ESC.

[13] Articles 1, 12 and 13 1961 ESC.

[14] Article 20(1)(c) 1961 ESC.

[15] Ministers’ Deputies, ‘Improving the European Social Charter System: Longer Term Substantive and Procedural Issues – Report’, CM(2022)196-final, 15 March 2023. See also High Level Group of Experts on Social Rights, Social Rights Monitoring in the Council of Europe: Ways Forward, Strasbourg, 19 March 2021, para. 29.

[16] High Level Group of Experts on Social Rights (n. 15), para. 29; Aoife Nolan, ‘Introduction’, in: ECSR, Activity Report 2022, CoE, Strasbourg 2023, p. 8.

[17] Article 21 1961 ESC.

[18] CoE, ‘European Committee of Social Rights’.

[19] Articles 2-3 1991 Protocol amending the ESC, 21 October 1991, ETS No. 142.

[20] Karin Lukas, ‘The European Social Charter’, in: Christina Binder and others (eds.), Research Handbook on International Law and Social Rights, Edward Elgar, Cheltenham 2020, p. 12-13.

[21] 1998 Additional Protocol to the ESC, 5 May 1998, ETS No. 128.

[22] Article 1 1988 Additional Protocol to the ESC.

[23] Article 5 1988 Additional Protocol to the ESC.

[24] CoE, ‘Explanatory Report to the Protocol Amending the European Social Charter’, Turin, 21 October 1991, para. 4; Stefano Angeleri and Róisín Dunbar, ‘The Reform of the European Social Charter’, in: The Academic Network on the ESC and others (eds.), The European Social Charter: A Commentary, Brill Nijhoff, Leiden 2022, p. 42.

[25] Section 3.

[26] CoE, ‘Report Identifying Good Practices and Making Proposals with a View to Improving the Implementation of Social Rights in Europe (Volume II)’, 2019, footnote 48.

[27] Article 3 1991 Protocol Amending the ESC.

[28] Ministers’ Deputies, ‘European Social Charter – European Committee of Social Rights (ECSR), Procedure for the Election of Six Members’, CM/Del/Dec(2022)1437/4.3, 15 June 2022.

[29] 1995 Additional Protocol to the ESC Providing for a System of Collective Complaints, 9 November 1995, ETS No. 158.

[30] Preamble to the 1995 Additional Protocol; Angeleri and Dunbar (n. 24), p. 47.

[31] Article 1(b) 1995 Additional Protocol: ‘which have consultative status with the [CoE] and have been put on a list established for this purpose by the [GC]’.

[32] Article 1 1995 Additional Protocol.

[33] Article 2 1995 Additional Protocol; CoE, ‘Signatures and ratifications. Situation at 1 May 2021’.

[34] Article 8(1) Additional Protocol.

[35] Article 8(2) 1995 Additional Protocol.

[36] Article 9(1) 1995 Additional Protocol.

[37] Holly Cullen, ‘The Collective Complaints System of the European Social Charter; Interpretative Methods of the European Committee of Social Rights’ 1 Human Rights Law Review (2022), pp. 65-66; Guiseppe Palmisano, Collective Complaints as a Means for Protecting Social Rights in Europe, London, Anthem Press 2022, p. 42. See CoM, Recommendation RecChS(2001)1 on Collective complaint No. 6/1999 Syndicat national des Professions du tourisme against France, 31 January 2001.

[38] Palmisano (n. 37), p. 42.

[39] Ibid., pp. 42-43.

[40] Ibid., p. 45.

[41] High Level Group of Experts on Social Rights (n. 15), para. 2. See also section 4.3.4.

[42] CoE, ‘Explanatory Report to the European Social Charter (Revised)’, Strasbourg, 3 May 1996, para. 8.

[43] Angeleri and Dunbar (n. 24), p. 57.

[44] Articles 20-23 Revised ESC.

[45] Article A Revised ESC.

[46] Article A(b-c) Revised ESC.

[47] CoE, ‘Analysis of the Legal Framework of the Council of Europe for the Protection of Social Rights in Europe (Volume I)’, 2018, para. 229.

[48] Thorbjørn Jagland, ‘Speech’, in: Michele Nicoletti (rapporteur), High-Level Conference on the European Social Charter. General Report, 2014, pp. 99-100.

[49] Michele Nicoletti (rapporteur), High-Level Conference on the European Social Charter. General Report, 2014, pp. 46-49.

[50] CoE (n. 47), paras. 231-234.

[51] Ministers’ Deputies, ‘Implementation of the Report on Improving the European Social Charter System’, CM(2022)114-final, 27 September 2022; Nolan (n. 16), p. 6.

[52] Ministers’ Deputies, ‘Improving the European Social Charter System – Consolidated Report’, CM(2022)67-final, 17 May 2022.

[53] Karin Lukas, The Revised European Social Charter. An Article by Article Commentary, Edward Elgar, Cheltenham 2021, pp. 10-11; Ministers’ Deputies (n. 51), para. 1.

[54] Lukas (n. 53), pp. 10-11; Ministers’ Deputies (n. 51), para. 5.

[55] Ministers’ Deputies (n. 52); Ministers’ Deputies (n. 51), para. 2. The GC and the ECSR define these questions and the GC adopts them.

[56] Ministers’ Deputies (n. 52).

[57] Ministers’ Deputies (n. 51), paras. 3-4.

[58] On 22 March 2024, I searched in the ‘CM Search’ with active filters ‘recommendation’; ‘English’; ‘European Social Charter’, which led to finding 94 recommendations, of which 37 concerned follow-up to the state reporting procedure and were adopted in the period 1993-2007. Cf Secretariat, ‘Follow-up to Conclusions: How it Currently Works, GT-CHARTE(2021)7, 6 December 2021, which mentions 40 such recommendations in the period 1993-2002.

[59] GC, ‘Position Paper on the Follow-up to the Steering Committee for Human Rights (CDDH) Report Addressed to the Committee of Ministers of the Council of Europe’, GC (2021)9, 11 May 2021, pp. 2, 4.

[60] Ministers’ Deputies (n. 52); Ministers’ Deputies (n. 51), para. 7.

[61] Ministers’ Deputies, Recommendation CM/RecChS(2022)3 of the Committee of Ministers to Member States on the Application of the European Social Charter by Albania (period 1 January 2015 to 31 December 2018) (Conclusions 2020), 20 April 2022.

[62] On 22 March 2024, I searched in the ‘CM Search’ with active filters ‘recommendation’; ‘English’; ‘European Social Charter’, which led to finding 94 recommendations, of which 28 concerned follow-up to the state reporting procedure and were adopted on or after 20 April 2022.

[63] Ministers’ Deputies, ‘Recommendation CM/RecChS(2023)16 on the Application of the European Social Charter by Türkiye with respect to Article 3§§3 and 4 (period 1 January 2016 to 31 December 2019) (Conclusions 2021)’, 13 December 2023.

[64] Aoife Nolan, ‘A Brief Overview of the European Social Charter System, Working Paper, March 2020, p. 4.

[65] Ministers’ Deputies (n. 51), para. 8.

[66] Ibid., para. 9.

[67] Ibid., para. 8.

[68] ECSR, ‘Appendix. Request for an Ad Hoc Report on the Cost of Living Crisis’.

[69] Ministers’ Deputies (n. 52).)

[70] Ministers’ Deputies (n. 51), para. 12.

[71] Ibid., paras. 10-11; CoM, ‘Discussion Document on Proposals concerning the Collective Complaints Procedure’, GT-CHARTE(2022)5, 3 February 2022.

[72] Ministers’ Deputies (n. 51), para. 13; Palmisano (n. 37), pp. 45-46.

[73] Palmisano (n. 37), p. 43 and footnote 10.

[74] On 22 March 2024, I searched in the ‘CM Search’ with active filters ‘recommendation’; ‘English’; ‘European Social Charter’, which led to finding 94 recommendations, of which 29 concerned collective complaints.

[75] E.g. Ministers’ Deputies, ‘Recommendation CM/RecChS(2023)5 on European Roma Rights Centre (ERRC) v. Belgium,
Complaint No. 185/2019’, 18 October 2023Ministers’ Deputies, ‘Recommendation CM/RecChS(2023)5 on European Roma Rights Centre (ERRC) v. Belgium
Complaint No. 185/2019’, 18 October 2023; Ministers’ Deputies, ‘Recommendation CM/RecChS(2024)1 of the Committee of Ministers to Member States on Associação Sindical dos Profissionais da Polícia (ASPP/PSP) v. Portugal, Complaint No. 179/2019’, 14 February 2024Ministers’ Deputies, ‘Recommendation CM/RecChS(2024)1 of the Committee of Ministers to Member States on Associação Sindical dos Profissionais da Polícia (ASPP/PSP) v. Portugal, Complaint No. 179/2019’, 14 February 2024. See also Ministers’ Deputies (n. 51), para. 13 where the two-year deadline is mentioned.

[76] Ministers’ Deputies, ‘Recommendation CM/RecChS(2023)4 on European Disability Forum (EDF) and Inclusion Europe v. France’, 6 September 2023. Ministers’ Deputies, ‘Recommendation CM/RecChS(2023)4 European Disability Forum (EDF) and Inclusion Europe v. France’, 6 September 2023.

[77] Ministers’ Deputies (n. 52). See also Ministers’ Deputies (n. 51), para. 16.

[78] Ministers’ Deputies (n. 51), paras. 16-17.

[79] Ibid., para. 18.

[80] CoE, ‘Improving the European Social Charter System: Long-term Substantive and Procedural Issues’, 29 March 2023. See also Ministers’ Deputies, ‘Improving the European Social Charter System: Long-term Substantive and Procedural Issues. Report’, CM/Del/Dec(2023)1460/4.1, 15 March 2023.

[81] Section 4.2.1.

[82] Reykjavík Declaration (n. 4), p. 6. In the ‘Declaration on the situation of the children of Ukraine’ (Appendix II), the Reykjavík Declaration also refers to ‘social exclusion’ and ‘social security’. In the ‘The Council of Europe and the environment’ (Appendix V), the Reykjavík Declaration notes ‘We recall the extensive case law and practice on environment and human rights developed by the […] [ECSR]’. However, because these references are made in a very specific context, they are not considered individually, although the matter of social rights in connection to the environment is touched upon in section 4.3.5 of this article.

[83] Ibid., Appendix IV, p. 17. See also section 4.3.1 of this article.

[84] See also Conference on International NGOs (CINGO), ‘Proposals for the High-Level Reflection Group’, 29 July 2022, p. 2.

[85] Reykjavík Declaration (n. 4), p. 3.

[86] PACE, ‘The Reykjavik Summit of the Council of Europe – United around Values in the Face of Extraordinary Challenges’, Recommendation 2245 (2023), 24 January 2023, para. 18. See also CoE, ‘Council of Europe Programme and Budget 2022-2025 (2023 adjusted)’, CM(2023)1, 15 December 2022, p. 66.

[87] PACE, ‘The “Turin Process”: Reinforcing Social Rights in Europe’, Resolution 2180 (2017), 30 June 2017, para. 2. See also PACE, ‘Social Exclusion: A Danger for Europe’s Democracies’, Resolution 2024 (2014) 18 November 2014.

[88] See e.g. Nicoletti (n. 49), pp. 8-9; Michele Nicoletti, ‘Prospects Raised by the Turin’s Process’, Conference on “The future of Social Rights in Europe” (Brussels, 12-13 February 2015), p. 2; Secretary General, ‘Opinion of the Secretary General of the Council of Europe on the European Union Initiative to Establish a European Pillar of Social Rights’, 2 December 2016, p. 3.

[89] PACE (n. 86), para. 18.

[90] Secretary General, ‘Improving the Implementation of Social Rights – Reinforcing the European Social Charter System: Secretary General’s Proposals’, SG/Inf(2021)13, 22 April 2021, p. 3. See also CINGO (n. 84), p. 2; Nolan (n. 16), p. 9.

[91] Reykjavík Declaration (n. 4). See also CoM, ‘Declaration of the Committee of Ministers on the 50th Anniversary of the European Social Charter’, 12 October 2021, para. 1; CoM, ‘Reply to Recommendation 1795 (2007), 17 June 2008’, para. 9; GC (n. 59), p. 1.

[92] E.g. Ministers’ Deputies (n. 63). See also section 3.1.

[93] ECSR, ‘Position Paper on Follow-up to the Report and Proposals of the Steering Committee of Human Rights’, 21 October 2020, p. 8. See also High Level Group of Experts on Social Rights (n. 15), para. 58; CoE (n. 26), para. 100.

[94] The first part of this section is based in part on: Lize Glas, ‘Wishes for Reykjavik. What Can the Fourth Council of Europe Summit Have in Store for the Court?’, EHRC Blog, 31 March 2023.

[95] High-Level Reflection Group of the CoE, ‘Report’, October 2022, p. 17.

[96] Robert Spano, ‘Échange de vues avec le Comité des Ministres’, 13 October 2021, p. 3.

[97] High-Level Reflection Group of the CoE (n. 95), pp. 17-18.

[98] ‘Expenditure of the Parliamentary Assembly for the Biennium 2022-2023’, Report (Rapporteur: Tiny Kox), PACE Doc. 15283, 11 May 2021, para. 5.

[99] PACE (n. 124), para. 76.

[100] GC (n. 59), p. 5; Secretary General (n. 90), p. 3; High Level Group of Experts on Social Rights (n. 15), para. 57; ECSR (n. 93), pp. 4, 7.

[101] In 2013, the total budget for the ‘European Social Charter and European Code of Social Security’ was €3,952,100, see CoE, ‘Programme and Budget 2012-2013’, p. 3. In 2023, the total budget for ‘social rights’ was €4,808,700, including monitoring the implementation of the European Code of Social Security, see CoE, ‘Programme and Budget 2022-2025 (2023 adjusted)’, pp. 2, 67. According to the ‘CPI inflation calculator’ €3,952,100 in 2013 is worth €5,034,974 in 2023.

[102] High Level Group of Experts on Social Rights (n. 15), para. 28(i). See also ECSR (n. 93), p. 4.

[103] CoM, ‘Reform of the Reporting Procedure: Objectives and Criteria’, GT-CHARTE(2021)9, 17 December 2021. See also Nolan (n. 16), p. 7.

[104] From 1400 in 1998 to 3220 in 2021.

[105] CoM (n. 103).

[106] CoM (n. 151), p. 4. From 39 complaints in the period 1998-2006, to 80 in the period 2007-2015 and 104 in the period 2016-2023

[107] CoM (n. 103); Nolan (n. 16), p. 7.

[108] See Sections 3.1 and 3.2.

[109] CoM (n. 151), p. 4.

[110] See Sections 4.3.2 and 4.3.6.

[111] CoM, ‘Reply’ (n. 91), para. 6.

[112] CoM, ‘Synopsis’, GT-CHARTE(2023)CB2, 8 March 2023, para. 3.

[113] CoM, ‘Ad Hoc Working Party on Improving the European Social Charter System (GT-CHARTE) – State of Progress as of 30 March 2022’, GT-CHARTE(2022)9, 28 March 2022.

[114] See Section 3.

[115] See section 4 of the contribution by Stefanie Schmal, ‘What Financial Resources Does the Council of Europe Have or Need?’ in this dossier. See also CoE, ‘Programme and Budget 2024-2027’, CM(2024)1, 19 December 2023.

[116] CoE, ‘Programme and Budget 2024-2027’, CM(2024)1, 19 December 2023, p. 73.

[117] CoE (n. 86), p 67. Despite the different names, the author assumes that the relevant programmes are comparable in terms of content, as the intended impact of both sub-programmes is the same: ‘Member States fulfill their obligations under the [ESC] and the European Code of Social Security’ and ‘Persons enjoy their social rights’, see CoE (n. 116), p. 71 and CoE (n. 86), p. 68.

[118] CoE (n. 86), p. 69.

[119] CoE (n. 116), p. 73.

[120] Reykjavík Declaration (n. 4), p. 6.

[121] World Conference on Human Rights in Vienna, ‘Vienna Declaration and Programme of Action’, 25 June, para. 5.

[122] See also CoM, ‘Declaration on the Occasion of the 50^th Anniversary of the Universal Declaration of Human Rights’, 10 December 1998, para. 4; Declaration of the CoM (n. 91), preamble.

[123] Jagland (n. 48), p. 101; See comparably Nicoletti (2015) (n. 88), p. 1; Jean–François Akandji-Kombé, ‘The Material Impact of the Jurisprudence of the European Committee of Social Rights’, in: Gráinne De Búrca and Bruno De Witte (eds.), Social Rights in Europe, OUP, Oxford 2005, p. 91.

[124] ‘The Reykjavik Summit of the Council of Europe: United Around Values in the Face of Extraordinary Challenges’, Report (Rapporteur: Fiona O’Loughlin), PACE Doc. 15681 of 9 January 2023, para. 33.

[125] Reykjavík Declaration (n. 4), p. 3.

[126] Ibid., p. 6.

[127] Ibid., p. 8. See also section 4.2.2.

[128] Ibid., pp. 4, 6 (emphasis author).

[129] According to the CINGO, this should be ‘among the key priorities’ of the CoE, see CINGO (n. 84), p. 2. See also CoE (n. 47), para. 39; Nicoletti (n. 49), pp. 46-47.

[130] See for a discussion of examples of compliance Lukas (n. 53), pp. 19-20.

[131] Régis Brillat, ‘The Supervisory Machinery of the European Social Charter: Recent Developments and Their Impact’, in: Gráinne De Búrca and Bruno De Witte (eds.), Social Rights in Europe, OUP, Oxford 2005, p. 32; Palmisano (n. 37), pp. 59-60.

[132] High Level Group of Experts on Social Rights (n. 15), para. 44. See also Ministers’ Deputies, ‘Recommendation CM/RecChS(2023)7 on the application of the European Social Charter Albania, Azerbaijan, Bosnia and Herzegovina, Malta, Republic of Moldova, Slovak Republic and Türkiye (period 1 January 2016 to 31 December 2019) (Conclusions 2021)’, 13 December 20023. In a recommendation, the CoM should explain how the states could develop such a mechanism, see High Level Group of Experts on Social Rights (n. 15), para. 45.

[133] Lukas (n. 20), p. 141; Giovanni Cavaggion, ‘The Implementation of the European Social Charter by National Authorities’, in: The Academic Network on the ESC and others (eds.), The European Social Charter: A Commentary, Brill Nijhoff, Leiden 2022, p. 173.

[134] CoE (n. 26), paras. 161-164, 170.

[135] Reykjavík Declaration (n. 4), p. 4. See also ibid., Appendix IV, p. 17.

[136] See also section 4.3.1.

[137] Article 46(1) ECHR.

[138] Palmisano (n. 37), p. 49.

[139] Lukas (n. 20), p. 141.

[140] Palmisano (n. 37), p. 49.

[141] CoE (n. 26), para. 199; Gisella Gori, ‘Domestic Enforcement of the European Social Charter: The Way Forwards’, in: Gráinne De Búrca and Bruno De Witte (eds.), Social Rights in Europe, OUP, Oxford 2005, p. 88; Jörg Luther and Lorenza Mola, ‘Introduction: Europe’s Social Rights under the ‘Turin Process’’, in: Jörg Luther and Lorenza Mola (eds.), Europe’s Social Rights under the ‘Turin Process’, Editoriale Scientifica, Naples 2016, p. 8.

[142] CoE (n. 26), para. 211; Ministers’ Deputies (n. 15).

[143] See also CoE (n. 26), para. 216; CoE and others, ‘Brussels’ Document on the Future of the Protection of Social Rights in Europe’, 2015, p. 7.

[144] Ministers’ Deputies (n. 80), para. 1.

[145] Ibid., paras. 1, 5.

[146] Ibid., para. 5.

[147] CoE (n. 26), para. 214; Brussels’ Document (n. 143), p. 7.

[148] Brussels’ Document (n. 143), p. 7; High Level Group of Experts on Social Rights (n. 15), para. 42.

[149] High Level Group of Experts on Social Rights (n. 15), para. 43; CoE (n. 26), para. 180.

[150] Ministers’ Deputies (n. 132).

[151] CoM, ‘Exchange of Views with Ms Aoife Nolan, President of the European Committee of Social Rights (ECSR)’, DD(2023)352, 18 October 2023, p. 2.

[152] Albania, Azerbaijan, Bosnia and Herzegovina, Malta, Republic of Moldova, Slovak Republic and Turkey.

[153] Ministers’ Deputies (n. 132).

[154] CoM, ‘Reply’ (n. 91), para. 9.

[155] See also e.g. Secretary General (n. 90), p. 3; ECSR (n. 93), p. 7; Nicoletti (n. 49), p. 46.

[156] CoM, ‘Decision’, CM/Del/Dec(2019)129/2a, 17 May 2019, para. 3; Ministers’ Deputies (n. 80), para. 2. See also Ministers’ Deputies (n. 15).

[157] CoE (n. 26), para. 61.

[158] Greece (2016); Germany (2021); Spain (2021).

[159] Spain (2022).

[160] Belgium (2015), Ukraine (2017) and Bulgaria (2022), see the CoE’s Treaty Office.

[161] Reykjavík Declaration (n. 4), p. 6.

[162] Lichtenstein, Monaco, San Marino and Switzerland.

[163] Croatia, Chez Republic, Denmark, Iceland, Luxembourg, Poland and the UK. Alternatively, they could be called on to ratify at least the 1988 Additional Protocol, which four of the seven did not do (i.e. Iceland, Luxembourg, Poland and the UK).

[164] See also CoM (n. 91), para. 2; Brussels’ Document (n. 143), p. 6.

[165] ‘Monitoring of Commitments concerning Social Rights’, Report (Rapporteur: Bernard Marquet), PACE Doc. 11875 of 29 November 2010, para. 11.

[166] Brussels’ Document (n. 143), pp. 6-7. See Articles 1, 5, 6, 7, 12, 13, 16, 19 and 20.

[167] See Section 2.1.

[168] France, Portugal and Spain. PACE (n. 165), para. 10 notes that the Netherlands also accepted all provisions. However, according to the ECSR’ table (n. 169), the Netherlands did not accept Article 19(2).

[169] See the current table (consulted on 9 February 2024).

[170] Karin Lukas, ‘Intervention before the Committee of Ministers’, in: ECSR, Activity Report 2022, CoE, Strasbourg 2023, p. 95.

[171] Nolan (n. 16), p. 8.

[172] Ministers’ Deputies, ‘Decision’, CM/Del/Dec(2019)1363/4.1c, 11 December 2019, para. 9.

[173] Ministers’ Deputies (n. 80), para. 6.

[174] Nolan (n. 16), p. 8.

[175] Denmark, Germany, Luxembourg and the UK.

[176] See also PACE, ‘Monitoring of Commitments concerning Social Rights’, Recommendation 1958 (2011), 28 January 2011, para. 4.4.

[177] PACE (n. 165), para. 14.

[178] See also PACE (n. 176), para. 4.3

[179] CoE, ‘High-level Conference on the European Social Charter’; Section 3.1.

[180] ECSR (n. 93), p. 8.

[181] Ministers’ Deputies (n. 15).

[182] See the CoE’s Treaty Office.

[183] PACE (n. 165), para. 15.

[184] Opinion of the European Committee of Social Rights (ECSR) on Parliamentary Assembly Recommendation 1795 (2007).

[185] See Section 4.2.2.

[186] CoE (n. 26), para. 94.

[187] CoE (n. 26), para. 70.

[188] CoM, ‘Synopsis’, GT-CHARTE(2022)CB10, 9 December 2022, para. 4.

[189] CoE (n. 26), para. 71.

[190] ‘The “Turin Process”: Reinforcing Social Rights in Europe’, Report (Rapporteur: Sílvia E. Bonet), PACE Doc. 14343 of 12 June 2017, para. 29; CoE (n. 26), paras. 71-72; CoM (n. 188), para. 4.

[191] CoE (n. 26), paras. 76-78, 81.

[192] See Section 3.2.

[193] Lukas (n. 170), p. 97.

[194] See Section 2.3.

[195] Lukas (n. 170), p. 96; CoM (n. 151), p. 1.

[196] ECSR (n. 93), p. 8; High Level Group of Experts on Social Rights (n. 15), para. 33. See sections 2.1 and 2.5.

[197] CoM, ‘Improving the European Social Charter System: Longer Term Substantive and Procedural Issues’, GT-CHARTE(2022)14-rev2, 30 September 2022.

[198] CoM, ‘Improving the European Social Charter System: Longer Term Substantive and Procedural Issues. Discussion Paper’, GT-CHARTE(2022)19, 10 November 2022.

[199] CoM (n. 197). E.g. the right to vocational guidance.

[200] Ibid.

[201] E.g. ‘fixed-term work, part-time work, telework/remote work, platform work, temporary agency work, domestic work’, see CoM (n. 197).

[202] ECSR (n. 93), p. 8; Secretary General (n. 90), p. 6; High Level Group of Experts on Social Rights (n. 15), para. 58; PACE, ‘The Future of Work is Here: Revisiting Labour Rights’, Recommendation 2239 (2022), 14 October 2022, para. 2; ECSR (n. 93), p. 8.

[203] Lukas (n. 170), p. 97.

[204] CoM, ‘Synopsis’, GT-CHARTE(2022)CB9, 4 October 2022, para. 5. See also CoM (n. 198).

[205] CoM (n. 188), para. 6. See also CoM (n. 198); Ministers’ Deputies (n. 80), para. 4.

[206] Ministers’ Deputies (n. 80), para. 4.

[207] Reykjavík Declaration (n. 4), p. 6. On this topic, see also Elisabeth Lambert, “Le Processus de Reykjavik sur les aspects de l’environnement liés aux droits de l’homme : échec ou impulsion politique ?”, in this dossier. Reykjavík Declaration (n. 4), p. 6.

[208] Reykjavík Declaration (n. 4), pp. 6-7 and Appendix V, para. v.

[209] CoE, ‘Environment and Human Rights (CDDH-ENV).

[210] CDDH-ENV, ‘[DRAFT] CDDH Report on the Need for and Feasibility of a Further Instrument or Instruments on Human Rights and the Environment’, CDDH-ENV(2023)06REV, 13 December 2023, para. 127.

[211] Ibid.

[212] Ibid.

[213] Ibid., para. 128 (emphasis author).

[214] Appendix to the Revised ESC, para. 1.

[215] CoE (n. 26), para. 93. See also ECSR (n. 93), p. 8; Secretary General (n. 90), p. 6; High Level Group of Experts on Social Rights (n. 15), paras. 36-38; Ministers’ Deputies (n. 15).

[216] Lukas (n. 170), p. 97.

[217] ECSR, European Committee for Home-Based Priority Action for the Child and the Family (EUROCEF) v. France (merits), Complaint No. 114/2015, 24 January 2018, para. 52.

[218] Ibid., para. 53.

[219] Ibid., para. 51.

[220] CoE (n. 26), para. 64.

[221] Ibid., para. 65.

[222] ECSR (n. 93), p. 8.

[223] CoE (n. 26), para. 93; CoM (n. 188), para. 7.

[224] CoE (n. 26), para. 93. See the Appendix to the ESC, para. 1, second sentence. See also Guiseppe Palmisano, ‘Speech’, in: CoE, Interparliamentary Conference on the European Social Charter. Official Speeches and Interventions, November 2016, p. 66; CoM (n. 198).

[225] CoE (n. 26), para. 63.

[226] See Section 3.

[227] Ministers’ Deputies (n. 15).

[228] CDDH, ‘Report Identifying Good Practices and Making Proposals with a View to Improving the Implementation of Social Rights in Europe’, CDDH(2019)R91Addendum3, 21 June 2019, para. 120. See also CoM (n. 71).

[229] CoM (n. 197).

[230] High Level Group of Experts on Social Rights (n. 15), para. 27.

[231] Ibid., para. 28.

[232] CoM (n. 197).

[233] See Section 2.3.

[234] Academic Network on the ESC and Social Rights, ‘Positions and Proposals, 16 October 2016, p. 4. See also PACE (n. 190), para. 25; ESCR, ‘Some Proposals concerning the Role and Status of the European Committee of Social Rights on the Occasion of the High-Level Conference in Turin, Italy 17-18 October 2014, 17 October 2014, p. 2; Nicoletti (n. 49), p. 45; PACE (n. 165), para. 19.

[235] PACE (n. 190), para. 25.

[236] CoM, ‘Reply to Recommendation 1958 (2011)’, 12 December 2011, para. 5.

[237] Brussels’ Document (n. 143), p. 8; ECSR (n. 234), p. 2.

[238] Section 2.4. This reform would require amending the 1995 Additional Protocol.

[239] CoM (n. 197); CoM (n. 198).

[240] CoM (n. 198). See also CoM (n. 188), para. 8.

[241] Ministers’ Deputies (n. 80), para. 7. See also Ministers’ Deputies (n. 15).

[242] High Level Group of Experts on Social Rights (n. 15), para. 28(iii); Ministers’ Deputies (n. 15). See also PACE, Resolution 1792 (2011), 28 January 2011, para. 6.4. Rule 32A of the Rules of the ECSR provides that, at the suggestion of the Rapporteur, « the President may invite any organisation, institution or person to submit observations » on the merits of a complaint.

[243] High Level Group of Experts on Social Rights (n. 15), para. 28(iii).

[244] Ibid., para. 19. It has also been proposed to introduce an advisory opinions procedure comparable to the one in Protocol 16 ECHR, see Secretary General (n. 90), p. 6; CoE (n. 47), para. 41.

[245] Alston (n. 5), p. 64.

[246] Ibid., p. 65.

[247] On the legal questions that accession raises, which are not addressed in this article, see: Olivier De Schutter, ‘Anchoring the European Union to the European Social Charter: The Case for Accession’, in: Gráinne De Búrca and Bruno De Witte (eds.), Social Rights in Europe, OUP, Oxford 2005, pp. 131-144; Jörg Luther, ‘Perspectives for an Accession of the European Union to the European Social Charter’, in: Jörg Luther and Lorenza Mola (eds.), Europe’s Social Rights under the ‘Turin Process’, Editoriale Scientifica, Naples 2016, pp. 138-153.

[248] For a discussion of the historical background, see De Schutter (n. 247), pp. 116-120.

[249] European Parliament, ‘Resolution on the Situation of Fundamental Rights in the European Union’, P7_TA-PROV(2014)0173, 27 February 2014’, para. 8(a); European Parliament, ‘Resolution of on a European Pillar of Social Rights’, P8_TA(2017)0010, 19 January 2017, para. 32 ; FRA Director, Chairman’s Statement’, September 2018, p. 10; European Parliament, ‘Resolution on the Institutional Relations between the EU and the Council of Europe’, P9_TA(2023)0103, 18 April 2023, para. 15; ‘Opinion of the European Economic and Social Committee on the Social Progress Protocol (Exploratory Opinion at the Request of the Spanish Presidency’ (Rapporteur: Maria del Carmen Barrera Charmorro), 2023/C 293/09, 18 August 2023, paras. 1.10, 5.3.

[250] High-Level Reflection Group of the CoE (n. 95), p. 20; PACE (n. 86), para. 12.2; Secretary General (n. 90), p. 6; Brussels’ Document (n. 143), p. 11; PACE, ‘The Implementation of the Memorandum of Understanding between the Council of Europe and the European Union’, Resolution 2029 (2015), 27 January 2015, para. 7.3; High Level Group of Experts on Social Rights (n. 15), para. 55.

[251] CoM, ‘Draft Elements for Final Outcome Document’, 30 March 2023, GT-SOM4(2023)11, p. 4.

[252] E.g. The UN Convention on the Rights of Persons with Disabilities, Treaty Series, Vol. 2515, 12 December 2006; CoE Convention on Preventing and Combating Violence against Women and Domestic Violence, CETS. No 210, 11 May 2011.

[253] Article 6(2) Treaty on European Union, C 326/15, 26 October 2012.

[254] Reykjavík Declaration (n. 4), p. 8.

[255] Brussels’ Document (n. 143), p. 10; CoE (n. 26), paras. 232-235, 240-241, 246; CoE, ‘High-Level Conference on the European Social Charter’; High Level Group of Experts on Social Rights (n. 15), para. 51; ECSR, Confédération Générale du Travail (CGT) v. France (merits), Complaint No. 55/2009, 23 June 2010, para. 40; CoM (n. 198).

[256] ECtHR (GC), Bosphorus v. Ireland, Application No. 45036/98, 30 June 2005, paras. 155-157.

[257] ECSR (n. 255), para. 35.

[258] ECtHR (n. 256), paras. 155-157.

ECSR (n. 255), para. 36.

[259] FRA Director, Chairman’s Statement’, September 2018, p. 10. See also European Parliament, ‘Resolution on Institutional Relations between the EU and the Council of Europe’, P9_TA(2023)0103, 1 December 2013, para. 15.

[260] European Commission, ‘Establishing a European Pillar of Social Rights’, COM(2017) 250 final, 26 April 2017, p. 6. See Urfan Khaliq, ‘The EU and the European Social Charter: Never the Twain Shall Meet’, 15 Cambridge Yearbook on European Legal Studies (2012-2013), pp. 174-184 for a discussion of ‘four avenues through which the ESC can play a role in the EU legal order, even if it is not formally a part of it’.

[261] Khaliq (n. 260), p. 180. See also Olivier de Schutter, ‘The European Social Charter as the Social Constitution of Europe’, In: Niklas Bruun and others (eds.), The European Social Charter and the Employment Relation, Hart Publishing Publisher – Bloomsbury Publishing, London 2017, p. 51.

[262] Khaliq (n. 260), p. 195.

[263] De Schutter (n. 247), p. 114.

[264] Brussels’ Document (n. 143), p. 9. See also De Schutter (n. 260), p. 51.

[265] High Level Group of Experts on Social Rights (n. 15), para. 49.

[266] Khaliq (n. 260), p. 195.

[267] Alston (n. 5), p. 63. See ECSR, Confédération Générale du Travail (CGT) v. France (merits), Complaint No. 55/2009, 23 June 2010, para. 35.

[268] Khaliq (n. 260), p. 182.

[269] See Section 4.3.2.

[270] Khaliq (n. 260), p. 182. See also Alston (n. 5), p. 63.

[271] See Section 4.3.4: Croatia, Czech Republic, Denmark, Luxembourg and Poland.

[272] Ibid.: Denmark, Germany and Luxembourg.

[273] Ministers’ Deputies (n. 15).

[274] CoM (n. 198); CoM (n. 188), para. 5.

[275] Ministers’ Deputies (n. 15). See also CoM (n. 188), para. 5.

[276] Ibid.

[277] Ibid.

[278] Reykjavík Declaration (n. 4) and section 4.3.1 of this article.

[279] See also section 4.3.1.

[280] I.e. ratifying the Revised ESC, declaring to be bound to more provisions, ratifying the 1991 Protocol Amending the ESC and accepting the collective complaints procedure.

[281] Removing the four-month embargo on publishing decisions, the ECSR inviting third parties to intervene more often, more and improved statements of interpretation.

[282] Considering that, so far, only one state has accepted this.

[283] I.e. new rights, increasing the number of core provisions, increasing the number of core provisions that the states must accept as binding, a new consolidated ESC and extended personal scope.

[284] See section 4.3.4.