― Belgium and the European Social Charter ―

Ratifications
Belgium ratified the European Social Charter on 16/10/1990 and the Revised European Social Charter on 02/03/2004, accepting 87 of the Revised Charter’s 98 paragraphs.

It accepted the Additional Protocol providing for a system of collective complaints on 23/06/2003, but has not yet made a declaration enabling national NGOs to submit collective complaints.

Table of Accepted Provisions

The Charter in domestic law

Automatic incorporation into domestic law based on case-law (Le Ski judgment, Court of Cassation, 27 May 1971).

Reports *

Between 1992 and 2012, Belgium submitted 11 reports on the application of the Charter and 5 on the application of the Revised Charter.

The 5th report, submitted on 5/1/2011, concerns the accepted provisions relating to Thematic Group 4 "Children, families and migrants". Conclusions in respect of these provisions were published in January 2012.

The 6^th report, submitted on 9/2/2012, concerns the accepted provisions of the Revised Charter relating to Thematic Group 1 “Employment, training and equal opportunities” i.e.:

- The right to work (Article 1),
- The right to vocational guidance (Article 9),
- The right to vocational training (Article 10),
- The right of persons with disabilities to independence, social integration and participation in the life of the community (Article 15),
- The right to engage in a gainful occupation in the territory of other Parties (Article 18),
- The right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex (Article 20),
- The right of workers to the protection of their claims in the event of the insolvency of their employer (Article 25).

Conclusions in respect of these provisions will be published in December 2012.
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* Following a decision taken by the Committee of Ministers in 2006, the provisions of both the 1961 Charter and the Revised Charter have been divided into four thematic groups. States present a report on the provisions relating to one of the four thematic groups on an annual basis. Consequently each provision of the Charter is reported on once every four years.

Situation of Belgium with respect to the application
of the Revised Charter

Examples of progress achieved in the implementation of social rights under the Social Charter ¹

Children
► Repeal, for minors at risk, of section 53 of the Young Persons Protection Act of 8 April 1965, which authorised juvenile judges to order that minors be held provisionally in remand prisons (for up to fifteen days) (Decree of 4 March 1991)
► Establishment of a system to combat and criminalise child pornography (Act of 13 April 1995, as amended by the Act of 28 November 2000; Article 383bis of the Criminal Code)
► Introduction of the right for children to be heard in adoption proceedings, in principle from the age of 12 onwards (Article 931 of the Judicial Code, as amended in 2003)
► Adoption of the collective labour agreement No. 80 bis, which brings the period during which the worker is entitled to take the nursing break, from seven to nine months (Article 6 of the collective agreement)

Non-discrimination
► Strengthening of safeguards against discrimination by the Act of 25 February 2003 (extension of the concept, possibility of reinstatement and proportionate compensation for victims, etc.) and by the Act of 10 May 2007

Non-discrimination (family benefits)
► Suppression of the five years residence requirement for granting “guaranteed family benefits” to non-EU and non-EEA nationals (Framework Act 24 December 2002)

Employment
► Setting of an upper limit on weekly working hours as part of the “Extensive flexibility working time scheme” (Act of 4 December 1998)
► Extension of periods of notice for workers (collective agreement of 20 December 1999)
► Introduction of a rule under which dockworkers at Antwerp must only be recruited on the basis of their technical knowledge, not their trade union membership (Royal Decree of 19 December 2000)
► Introduction of the right to paid breastfeeding breaks (collective labour agreement No. 80/ 2001)
► Abolition of compulsory work for prisoners (Act of 12 January 2005)
► Introduction of financial measures to encourage people over 50 to return to work (such as employment and back-to-work bonuses)

Cases of non-conformity

Thematic Group 1 “Employment, training and equal opportunities”

► Article 1§2 – Right to work – Freely undertaken work (non-discrimination, prohibition of forced labour, other aspects)
Under the Criminal and Disciplinary Code for the merchant navy and fishing fleet, prison sentences including compulsory labour may be imposed on sailors guilty of breaches of professional discipline posing no threat to the safety of the ship or the lives or health of the other persons on board
(Conclusions XVII-1)

► Article 10§5 – Right to vocational training – Full use of facilities available
For nationals of other States party of the Charter and the Revised Charter, entitlement to financial assistance in higher education is subject to a length of residence requirement
(Conclusions 2008)

► Article 15§1 – right of disabled persons to vocational training
During the reference period, the anti-discrimination legislation covering education and training for persons with disabilities was inadequate
(Conclusions 2008)

► Article 15§3 – integration and participation of persons with disabilities in the life of the community
There is no general anti-discrimination legislation protecting persons with disabilities explicitly covering the fields of housing, transport, telecommunications and cultural and leisure activities
(Conclusions 2008)

Thematic Group 2 “Health, social security and social protection”

► Article 12§4 – Right to social security – Social security of persons moving between States
1. Equal treatment as regards the payment of disability allowance is not guaranteed to nationals of States Parties not covered by Community regulations or bound by agreement with Belgium
2. The retention of accrued benefits for persons moving to a State Party which is not covered by Community regulations or not bound by an agreement with Belgium is not guaranteed
(Conclusions 2009)

► Article 13§1 – Right to social and medical assistance - Adequate assistance for anyone in need
Guaranteed income for the elderly (GRAPA) is not granted to foreigners without resources unless they are covered by community law or are nationals of States which have concluded reciprocity agreements with Belgium
(Conclusions 2009)

Thematic Group 3 “Labour rights”

► Article 2§3 – Right to just conditions of work - Annual holiday with pay
Workers who fall ill or are injured during their holiday are not entitled to take the days lost at another time
(Conclusions 2010)

► Article 2§5 – Right to just conditions of work - Weekly rest period
The time in which a weekly rest day is granted may exceed twelve successive working days
(Conclusions 2010)

► Article 4§2 – Right to a fair remuneration - Increased rate of remuneration for overtime work
The right to increased compensatory time-off for the overtime is not guaranteed in the public sector
(Conclusions 2010)

► Article 4§4 – Right to a fair remuneration - Reasonable notice of termination of employment
1. 28 days' notice is insufficient for workers with three or more years service
2. 56 days' notice is insufficient for workers with ten or more years service
(Conclusions 2010)

Thematic Group 4 “Children, families, migrants”

► Article 7§5 – Right to special working conditions between the ages of 15 and 18 – Fair pay
The allowances paid to apprentices are inadequate
(Conclusions 2011)

► Article 7§6 – Right to special working conditions between the ages of 15 and 18 - Inclusion of time spent on vocational training in the normal working time
It has not been established that, in practice, training attended by young workers at their request and with their employer’s consent is regarded as working time and remunerated as such
(Conclusions 2011)

► Article 7§8 – Right to special working conditions between the ages of 15 and 18 - Prohibition of night work
It has not been established that the legal prohibition on night work applies to the great majority of persons under the age of 18
(Conclusions 2011)

► Article 17§1 – Right of mothers and children to social and economic protection – Assistance, education and training
1. Corporal punishment is not prohibited in the home and in childcare institutions in all communities of Belgium
2. Minors can be tried in adult courts and detained in adult prisons
(Conclusions 2011)

The European Committee of Social Rights has been unable to assess compliance with the following rights and has invited the Belgian Government to provide more information in the next report in respect of the following provisions:

Thematic Group 1 “Employment, training and equal opportunities”
(Report to be submitted before 31 October 2011)

► Article 1§3 – Conclusions 2008
► Article 9 – Conclusions 2008
► Article 10§3 – Conclusions 2008
► Article 15§2 – Conclusions 2008
► Article 18§1 – Conclusions 2008

Thematic Group 2 “Health, social security and social protection”
(Report to be submitted before 31 October 2012)

► Article 11§3 – Conclusions 2009
► Article 14§§1 and 2 – Conclusions 2009

Thematic Group 3 “Labour rights”
(Report to be submitted before 31 October 2013)

► Article 5 – Conclusions 2010

Thematic Group 4 “Children, families, migrants”
(Report submitted on 5 January 2011, Conclusions published in January 2012)

► Article 7§7 – Conclusions 2011
► Article 7§10 – Conclusions 2011
► Article 19§1 – Conclusions 2011
► Article 19§3 – Conclusions 2011
► Article 19§4 – Conclusions 2011
► Article 19§6 – Conclusions 2011
► Article 19§10 – Conclusions 2011

Collective Complaints and State of Procedure in Belgium ²

Collective complaints (under examination)

International Federation of Human Rights Leagues (FIDH) v. Belgium (No. 75/2011)

Defence for Children – International (DCI) v. Belgium (No. 69/2011)

International Federation of Human Rights Leagues (FIDH) v. Belgium (No. 62/2010)

European Trade Union Confederation (ETUC) / Centrale Générale des Syndicats Libéraux de Belgique (CGSLB) / Confédération des Syndicats chrétiens de Belgique (CSC) / Fédération Générale du Travail de Belgique (FGTB) v. Belgium (No. 59/2009)

Collective complaints (proceedings completed)

1. Complaints inadmissible or where the Committee has found no violation

Centrale générale des services publics (CGSP) v. Belgium (No. 25/2004)
Non-violation of Article 6§§1 and 2 (right to collective bargaining), decision on the merits of 27 May 2005.

2. Complaints where the Committee has found a violation which has been remedied

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3. Complaints where the Committee has found a violation which has not yet been remedied

World Organisation against Torture (OMCT) v. Belgium (No. 21/2003)
Violation of Article 17 (right of children to social, economic and legal protection), decision on the merits of 7 December 2004