The Collective Complaints Procedure
The European Committee of Social Rights monitors compliance with the Charter under two separate procedures:
- through collective complaints lodged by the social partners and non-governmental organisations (Collective Complaints procedure)
- and through reports drawn up by States parties (Reporting system).
The collective complaints procedure was introduced by the Additional Protocol providing for a system of collective complaints adopted in 1995 and which entered into force in 1998.
The aim pursued with the procedure was to increase the effectiveness, speed and impact of the implementation of the Charter. The collective complaints procedure has strengthened the role of the social partners and non-governmental organisations by enabling them to directly apply to the ECSR for rulings on possible non-implementation of the Charter in the countries that have accepted its provisions and the complaints procedure.
The collective complaints procedure is a human rights protection system for social and economic rights which complements the judicial protection provided under the European Convention on Human Rights for civil and political rights. Because of their collective nature, complaints should raise questions in general, concerning non-compliance of a State’s law or practice with one or more of the provisions of the Charter. Complaints about individual situations may not be submitted. Because of its particular nature, complaints may be lodged without exhausting domestic remedies and without the complainant organisation necessarily being a victim of the alleged violation.
Organisations entitled to lodge collective complaints:
- the European social partners:
- certain international non-governmental organisations (INGOs) holding participatory status with the Council of Europe and included at their request on the list drawn up by the Governmental Committee of the European Social Charter and the European Code of Social Security (Governmental Committee);
- representative trade unions and employers’ organisations in the country concerned.
Furthermore, any State may grant representative national non-governmental organisations (NGOs) within its jurisdiction the right to lodge complaints against it. So far only Finland has done so.
If a complaint has been considered admissible by the ECSR, the grounds of the complaint are then examined and a decision on the merits is adopted by the ECSR. This decision establishes whether a State’s law and/or practice is or not in compliance with one or more provisions of the Charter. The decision is forwarded by the ECSR to the parties and, for the purpose of its follow-up, to the Committee of Ministers of the Council of Europe. The decisions adopted by the ECSR are published and can be consulted in the European Social Charter Database HUDOC.
The Charter is a legally binding treaty of international law and the ECSR as a treaty body has sole responsibility for making the legal assessment of state compliance with the Charter. The Committee’s jurisprudence (decisions and conclusions) represents an authoritative interpretation of the Charter’s provisions. States Parties’ have an obligation to cooperate with the Committee and its decisions and conclusions that arises from the application of the principle of good faith to the observance of all treaty obligations. For States Parties to ignore or not take into account the Committee’s decisions and conclusions would be to fail to show good faith in implementing the obligations they have undertaken to be bound by in terms of the Charter.
Admissibility conditions for complaints
In order to be declared admissible, a collective complaint must necessarily:
- be lodged in writing and clearly indicate the name and contact details of the complainant organisation;
- be signed by a person entitled to represent the complainant organisation and provide evidence that the person submitting and signing the complaint is entitled to represent the organisation;
- if the complainant is a national trade union or a national employers’ organisation, provide evidence that these bodies are representative within the meaning of the collective complaints procedure;
- if the complainant is an international or national NGO, provide evidence that the complainant organisation has particular competence in the field relating to the provision (or provisions) of the Charter covered by the complaint;
- be lodged against a State in which the Charter is in force and which has accepted the system of collective complaints(as of 1 May 2023, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Finland, France, Greece, Ireland, Italy, the Netherlands, Norway, Portugal, Slovenia, Spain and Sweden);
- concern one or more provisions of the Charter which have been accepted by the State concerned; in principle, the Charter provisions in respect of which complaints may be lodged are:
a. Articles 1-19 of Part II of the 1961 European Social Charter, Articles 1-4 of Part II of the 1988 Additional Protocol to the 1961 European Social Charter;
b. Articles 1 to 31 of Part II, and Article E of Part V of the Revised European Social Charter in conjunction with one or more of the aforementioned articles;
- indicate the extent to which the State has failed to implement the Charter; in particular, the complaint must indicate the point(s) in respect of which the State in question has allegedly failed to comply with the Charter or implemented it inadequately, along with evidence and the relevant arguments, with supporting documents.
When lodged by INGO, complaints must be drafted in one of the Council of Europe’s official languages (English or French). Complaints lodged by national trade unions may be drafted in the – or an – official language of the State concerned.
Complaints must be addressed to the Executive Secretary of the ECSR acting on behalf of the Secretary General of the Council of Europe.
Department of the European Social Charter
Directorate General Human Rights and Rule of Law, Council of Europe
F-67075 Strasbourg Cedex
E-mail address: [email protected]
Examination of complaints by the European Committee of Social Rights
The ECSR’s Rules contain detailed provisions on the examination of collective complaints.
The ECSR deals with the complaints in the order in which they become ready for examination. It may, however, give priority to a particular complaint.
Complaints lodged before the ECSR are notified to the respondent State and published on the Council of Europe website.
For each complaint, the President appoints a member of the ECSR to act as Rapporteur. The Rapporteur prepares a draft decision on admissibility and, if needed, on the merits for ECSR consideration and adoption.
Decision on admissibility
Before the ECSR decides on admissibility, the President gives the State time to provide written observations on the admissibility of the complaint. The President then invites the complainant organisation to respond to the observations made by the respondent State. The respondent State is finally invited to submit if it so wishes a response.
All registered case documents are published on the Council of Europe website.
The inclusion of an INGO on the list of entitled organisations does not absolve the ECSR, when examining admissibility, from checking whether the subject of the complaint actually does concern an area for which the relevant INGO has been recognised as having particular competence.
To ensure the efficient functioning of the collective complaints procedure and in view of the very large number of trade unions operating in some States, it was deemed necessary to stipulate that the complainant organisation must be “representative”. The ECSR decides whether the organisation meets this criterion when examining whether the complaint is admissible in the light of information and observations submitted by the State and the organisation concerned. In the absence of any criteria on a national level, factors such as the number of members and the organisation’s actual role in national negotiations are taken into account. However, the application of criteria of representativeness should not lead to “… exclusion of small or recently established trade unions to the advantage of to the advantage of larger and longer-established trade unions, thereby prejudicing the effectiveness of the right of all trade unions to bring a complaint before the ECSR.
A complaint may be declared admissible even if a similar case has already been submitted to another national or international body. The fact that the substance of a complaint has been examined as part of the Charter supervision procedure based on government reports does not per se constitute an obstacle to the complaint’s admissibility.
The fact that a complaint relates to a claim already examined in the context of a previous complaint is not in itself a reason for inadmissibility; the submission of new evidence during the examination of a complaint may prompt the ECSR to re-assess a situation it has already examined in the context of previous complaints and, where appropriate, take decisions which may differ from the conclusions it adopted previously.
The ECSR’s decision on the admissibility of a complaint is notified to the complainant organisation or organisations and to the respondent state as well as to the other States Parties to the Charter that accept collective complaints. In addition, the decision is published on the Council of Europe website and can be consulted on the European Social Charter Database HUDOC.
Decision on the merits
Should a complaint be declared admissible, the President of the ECSR asks the respondent State to make written submissions on the merits of the complaint within a time limit.
States which have accepted the collective complaints procedure may submit comments on any complaints declared admissible against another State.
International organisations of trade unions and employers can make observations on complaints lodged by national organisations of employers and trade unions or by NGOs. The observations submitted are transmitted to the complainant organisation and to the respondent State, which shall be invited to respond to the observations within a time-limit set by the President of the ECSR.
Upon a proposal by the Rapporteur, the President of the ECSR may invite any organisation, institution or person to submit observations (Rule 32A of the Rules). Any observation received by the ECSR is transmitted to the respondent State and to the complainant organisation, which shall be invited to respond to the observations within a time-limit set by the President of the ECSR..
When they consider this appropriate and after consultation with the Rapporteur, the President shall decide that the written procedure is closed. Following the closing of the procedure further documents may only be submitted exceptionally and with good reason.
Written submissions, responses and observations, as well as any other case document transmitted at this stage of the procedure, are also published on the Council of Europe website.
During the examination of the complaint, upon request of one of the parties or on its own initiative, the ECSR may decide to hold a hearing. The hearing is public unless the President decides otherwise.
Third parties, whether States or organisations, may be invited to submit observations or take part in the hearing.
Following deliberation, the ECSR adopts a decision on the merits of the complaint where it decides whether or not one or more Charter provisions have been violated.
The ECSR’s decision on the merits shall be accompanied by reasons and be signed by the President, the Rapporteur and the Executive Secretary. Any separate opinions, dissenting or concurring, shall be appended to the ECSR’s decision.
The report containing the ECSR’s decision on the merits shall be transmitted to the Committee of Ministers. It shall also be transmitted to the complainant organisation and to the respondent State, which shall not be at liberty to publish it until after the Committee of Ministers has adopted a resolution or a recommendation, or no later than four months after it has been transmitted to the Committee of Ministers
Since 2011, the ECSR’s Rules provide for the possibility of immediate measures. They can be indicated by the ECSR at the request of a party or at its own initiative and at any time, whether during the admissibility phase or later in the proceedings. The purpose of immediate measures is to avoid the risk of irreparable injury or harm to the persons concerned by the complaint and to ensure the effective respect of the rights recognised in the Charter. When requesting immediate measures, a complainant organisation should specify the reasons for the immediate measures and the possible consequences if steps are not taken without delay. The respondent State is informed of the request and is given a delay to respond. The parties are informed of the ECSR’s reasoned decision on immediate measures, and the respondent State is given time to provide information on the actual measures taken.
In the event of violation of one or more Charter provisions, the respondent State is asked to inform the Committee of Ministers of the Council of Europe of the measures taken or planned to bring the situation into conformity. This is comparable to the follow-up to judgements of the European Court of Human Rights.
Having regard to this information and in light of social and economic policy considerations, the Committee of Ministers adopts a recommendation addressed to the State concerned. A two-thirds majority is required for the adoption of a recommendation.
It is important to note that the Committee of Ministers cannot reverse the legal assessment made by the ECSR (cf. §46 of the Explanatory Report to the Protocol [link]).
The Committee of Ministers’ role is essential because it can contribute to making the ECSR’s decisions operational, and thereby giving concrete effect to the rights guaranteed under the Charter.
In cases where the ECSR finds no violation of the Charter provisions, the Committee of Ministers adopts a resolution closing the procedure.
Texts adopted by the Committee of Ministers in the framework of the collective complaints procedure are available on the Committee of Ministers’ website, and can also be found on the European Social Charter Database HUDOC.
Reporting on follow-up to decisions in collective complaints
Following the reform adopted by the Committee of Ministers in September 2022, in cases where the Committee of Ministers has addressed recommendations to States Parties after the ECSR found violations of the Charter, States now have to submit a single report on the follow-up undertaken approximately two years after the Committee of Ministers’ recommendation.
It is then for the ECSR to determine whether the situation has been brought into conformity with the Charter. The assessment of the ECSR on these follow-up reports will be transmitted to the Committee of Ministers.
Depending on the ECSR’s assessment, the Committee of Ministers may close the case with a resolution or renew the recommendation or, before doing so, it may refer the case to the Governmental Committee for further consultations. This referral can be at the request of the State Party concerned or at the Committee of Ministers’ own initiative. The consultations may help the State concerned identify possible measures that it could take with a view to addressing the matter. Consultations with the Governmental Committee could also, in those cases, permit to access best practice examples from other States Parties or to assist the national authorities that so wish in the elaboration and adoption of roadmaps, strategies or action plans.