August 11, 2021
By Maria Kotsoni, PhD researcher at the Department of Law of the European University Institute
Just a few months after the inadmissibility judgement of Le Mailloux v. France, another inadmissibility decision was adopted in a case related to states’ socio-economic management of the COVID-19 crisis. Only this time it was the European Committee of Social Rights (ECSR), the monitoring body of the European Social Charter (ESC), that dismissed a complaint as inadmissible within the context of the collective complaints procedure. The complaint against Greece was lodged on 28 May 2020 by the Greek Bar Associations. The complainant organizations alleged a violation of several provisions of the ESC on various grounds. The ECSR found the complaint inadmissible in a decision adopted on 23 March 2021, despite its prompt interpretative response to the COVID-19 crisis paving the way for challenging states’ responses to the pandemic as incompatible with socio-economic rights obligations (see Statement of interpretation on the right to protection of health in times of pandemic, Statement on COVID-19 and Social Rights).
No less than 53 Bar Associations in Greece (hereinafter ‘Greek Bar Associations’ or complainants) lodged a collective complaint before the ECSR. The Greek Bar Associations challenged the treatment of lawyers by the Greek state in its response to the COVID-19 crisis as violating several provisions of the Revised ESC establishing social rights, in conjunction with the prohibition of discrimination (Art. E, Revised ESC). The complaint included a request for immediate measures (see Art. 36, ECSR Rules).
The complaint refers to the Greek state’s response to the first wave of the pandemic, and the facts offered concern a period that spans from March 2020 to June 2020. The complainants claimed that, during this time, the Greek state failed to provide the necessary support to self-employed lawyers, who had suffered great restrictions in their activity and loss of income following the implementation of measures to prevent the spread of COVID-19 (closure of courts, services and schools, restrictions to movement). This claim was based primarily on the exclusion of self-employed lawyers from the same state support that was offered to employed persons and certain categories of self-employed persons in sectors that were affected by the pandemic (complaint, §§15-122). This support included social and economic relief in the form of benefits (a benefit of €800 for March and April and €533 for May), waiving of social security contributions and a housing rent reduction of 40 percent. Instead of this support, lawyers received a one-off benefit of a lower amount (€600) and they were not classified as beneficiaries of the other two relief measures (ibid.).
Based primarily on these facts, the complainants alleged the violation of their rights to protection against poverty and social exclusion (Art. 30 ESC, ibid., §§164-170), to social and medical assistance (Art. 13 ESC, ibid., §§175-177), to health (Art. 11 ESC, ibid., §§171-174), the right of their families to social, legal and economic protection (Art. 16 ESC, ibid., §§178-193 ), as well as the right of their children to social, legal and economic protection (Art. 17 ESC, ibid., §§194-204), and, last, the right to housing (Art. 31 §2 ESC, ibid., §§205-209). All these rights were invoked in conjunction with the principle of non-discrmination. The grounds of the alleged discrimination against lawyers were multiple and appear interchangeably in the complaint. The complainants claimed that the Greek state discriminated against lawyers as a professional group and as ‘co-functionaries in the administration of Justice, and human rights defenders in need of special support, especially in times of crisis’ (ibid., §139). In addition, they argued that lawyers who belong to vulnerable groups, have a status that is awarded special protection or belong to COVID-19 high-risk groups were subjected to discriminatory treatment (ibid.).
Apart from the insufficient and discriminatory treatment with regard to social support, the complainants invoked additional factual situations to support some of their claims. For instance, they questioned the efficiency of the protective measures in place to prevent the spread of COVID-19 inside courtrooms to support the violation of their right to health. Courts resumed part of their activities in June 2020, after the lifting of general restrictions to movement. The complainants argued that even though protective measures were implemented in courtrooms, such as the installation of plexiglass dividers, these measures only aimed to protect judges and prosecutors and no additional measures were adopted to guarantee the protection of lawyers’ health (ibid., §§172-174). In the case of the right of their family to social, legal and economic protection, the complainants also referred to the overall lack of social and family benefits, fiscal arrangements or any other means to protect the family (ibid., §79). With respect to the right of children and young persons to social, legal and economic protection, the complainants accused the Greek government of failing to ensure access to online education for children of low-income families. They reported a rate of 30% of students as having been excluded from online education, attributing this situation to the omission of state authorities to provide the necessary equipment and internet access to these children, among them children of lawyers with a low income (ibid., §§201-204).
The review of collective complaints lodged before the ECSR is a two-step process. First, the ECSR decides on the admissibility of the complaint and adopts a decision on admissibility. Where the complaint is deemed admissible, a review of the substance of the complaint follows and a decision on the merits is adopted. The conditions of admissibility of collective complaints are set out in the Additional Protocol of 1995 providing for a system of collective complaints and the ECSR Rules. Contrary to the ECHR, the ESC does not require victim status to be established on the part of the complainant. After all, the ECSR does not review individual cases (Explanatory report to the Additional Protocol of 1995, §31). It rather scrutinizes issues of a collective nature stemming from labour and social protection law and practice in states parties. This does not mean that recourse to the ECSR does not come with its own admissibility requirements. One such requirement relates to the organizations that have standing before the ECSR. These are international organizations of employers or international trade union organizations, certain international NGOs that hold participatory status with the Council of Europe, and representative national trade unions and employers’ organizations (Art.1c, Additional Protocol of 1995). In addition, representative national NGOs may lodge collective complaints, upon declaration of states parties providing such a possibility (Art. 2, ibid.).
In the case of Greek Bar Associations, the ECSR held that the complaint was inadmissible because the complainants could not be considered as ‘trade unions’ under the ESC and the Additional Protocol of 1995. Bar associations in Greece have financial and administrative independence and represent and defend the interests of their members. However, participation in bar associations is a requirement in order to enter the legal profession and practice law. For the ECSR, membership to such associations is not ‘a manifestation of freedom of association in the sense that trade union membership is‘ (ECSR, Greek Bar Associations v. Greece, decision on admissibility, §19). In addition, the ECSR considered that bar associations cannot, by the nature of the lawyers’ licensed profession as regulated in Greece, engage in one core trade union activity, that of collective bargaining with the aim of concluding collective agreements (ibid., §20). As the complainants were not considered as trade unions, the complaint was declared inadmissible for lack of standing.
Throughout the life of the collective complaints procedure, the ECSR has come to review complaints lodged by different types of national organizations promoting the interests of their members. In the past, the ECSR has interpreted the concept of ‘trade union’ in a relatively open manner. It usually looks at whether the activities of the complainant organization ‘can be considered as trade union prerogatives‘ (ECSR, Associazione Nazionale Giudici di Pace v. Italy, decision on admissibility, §§7-10). The ECSR has, for instance, examined complaints lodged by organizations representing civil servants. Even though civil servants associations cannot engage in collective bargaining with the aim to conclude collective agreements, as civil servants’ remuneration and working conditions are regulated by law, their complaints have passed the ECSR’s admissibility check (Associazione Nazionale Giudici di Pace v. Italy, decision on admissibility, Associazione sindacale « La Voce dei Giusti » v. Italy, decision on admissibility).
The same applies to pensioners’ and unemployed persons’ associations that exercise rights stemming from employment (Associazione Nazionale Giudici di Pace v. Italy, decision on admissibility, §9). Indeed, complaints filed by pensioners’ associations have been deemed admissible. For example, Greek pensioners’ associations have successfully lodged complaints before the ECSR challenging austerity measures introduced during the sovereign debt crisis in Greece (e.g., Federation of employed pensioners of Greece (IKA –ETAM) v. Greece, decision on admissibility, Panhellenic Federation of Public Service Pensioners v. Greece, decision on admissibility).
When it comes to the standing of associations of self-employed persons under the capacity of trade unions, the situation is a bit more complex. In Associazione Medici Liberi v. Italy, the ECSR held that:
‘Medici Liberi has not engaged in activities that could be said to amount to core trade union activities, such as participating in collective bargaining, calling strikes or concluding collective agreements. […] On this basis, the Committee considers that Medici Liberi cannot be considered as a trade union within the meaning of Article 1(c) of the Protocol.’(decision on admissibility, §11)
In Greek Bar Associations v. Greece, the ECSR reiterated this interpretation, but in a slightly more restrictive way:
‘[…] the role and function of the GBAs and the activities they carry out do not extend to the essential trade union prerogative of conducting proper collective bargaining with a view to concluding collective agreements with employers and/or their organizations. This is due to the fact that collective bargaining would be inconsistent with the licensed professional character of lawyers in Greece.’(§ 20)
In the case of Associazione Medici Liberi the ECSR refers to more than one activies that, if undertaken, may grant trade-union status under the ESC to complainant organizations. The listing of such activities appears even to be non-exhaustive. In the current case, however, the power to bargain collectively with the aim to conclude collective agreements appears as a separate requirement for complainants to have standing, despite complainants’ potential involvement in other activities that promote the socio-economic interests of their professional group. The mere promotion of one professional group’s interests, even if related to working condition (e.g., here preventive measures in courtrooms against the spread of COVID-19) or social policy affecting them, is not enough to provide standing. This interpretation raises the question of whether associations of self-employed persons, due to the very nature of self-employment, have the possibility at all to successfully challenge employment and social legislation and practice in ESC member states before the ECSR.
The pandemic is a challenging new area for everyone involved in human rights litigation or adjudication. The still unfolding crisis and responses thereto have a profound impact on social rights. At the same time, while social rights are gaining momentum, there has been no precedent that would allow one to safely hypothesize on the ECSR response to any complaint regarding the management of the pandemic. One cannot say with conviction whether the complaint lodged by the Greek Bar Associations would have been successful, had it not be deemed inadmissible. The examination of the complaint on the substance would have been a great opportunity for the ECSR to elaborate further its interpretation on social rights obligations during the COVID-19 crisis, because the complaint touches upon issues that have been identified by the ECSR as central to an ESC-compliant state response to the pandemic.
The ECSR’s statement on COVID-19 and social rights outlines the potential impact of COVID-19 on social rights and relevant states’ social rights obligations to ensure compliance with the ESC. For example, with regard to social and medical assistance, which is relevant for the discussed case, the ECSR urged states parties to provide support beyond one social or professional group and with coprehensive social assistance techniques (ibid., p. 8). On this point, the non-allocation of the same benefits across sectors (workers and self-employed) could have potentially led to a finding of non-conformity with the ESC.
The ECSR with its statement also brought attention to the risk of digital exclusion from education, due to lack of necessary resources to participate in remote learning. It pointed out that the right of children and young persons to social, legal and economic protection prescribes that ‘equal access to education must be ensured for all children during the COVID-19 crisis’ (ibid., p. 9). The statement does not clarify whether states parties to the ESC are obliged to provide children with the necessary equipment and internet access. However, the allegations of the complainants fall within the ambit of the ECSR’s statement on this point. The allegation that 30% of children in Greece were excluded from online education is a very serious one and its examination would have been a great opportunity for the ECSR to clarify the exact states’ obligations stemming from the general obligation to ensure equal access to remote education, e.g. by providing equipment to students.
Regarding the right to housing, the ECSR’s statement is rather focused on the prohibition of eviction and does not touch upon rent reductions (ibid., p. 13). However, since such a measure is adopted in one state party under its margin of appreciation in dealing with the crisis, it would be hard for the Greek authorities to justify that it was not extended to both employed and self-employed persons across all sectors that were hit financially or at least to all vulnerable persons across sectors.
So far, only two cases have been reviewed in the two Council of Europe systems protecting civil and political rights and social rights that touch upon socio-economic considerations related to the management of the pandemic. In Le Mailloux v. France, the first case before the ECtHR, the application was deemed inadmissible because the victim status was not established. Before both the ECtHR and the ECSR, the review did not reach the substance of applicant’s and complainants’ arguments, as both cases were found inadmissible. However, this is no reason to be pessimistic about what the ESC and the ECtHR have to offer in the protection of socio-economic rights and interests in times of pandemic. The ECSR has already highlighted the relevant obligations for member states stemming from the ESC (Statement of interpretation on the right to protection of health in times of pandemic, Statement on COVID-19 and Social Rights). This indicates that there is ample room for trade unions and INGOs to challenge the management of the pandemic by the ESC states parties that are signatories to the Additional Protocol providing for the system of collective complaints. Already, one collective complaint is pending concerning the treatment of persons with disabilities in the pandemic (Validity v. Finland), while another refers to the exposure of Traveller families to risks brought about by COVID-19 (European Roma Rights Centre (ERRC) v. Belgium). The ECtHR is also a potential avenue for challenging the socio-economic underpinning of state responses to the pandemic since, through its interpretation of certain provisions of the ECHR, it has accommodated the review of applications relating to socio-economic rights challenges.
 For a detailed account of the adjudication of socio-economic rights in the ECtHR, see Leijten, I. (2018). Core socio-economic rights and the European Court of Human Rights. Cambridge: Cambridge University Press.