July 19, 2024
Lize R. Glas
In the Reykjavík Declaration (17 May 2023), the member states of the Council of Europe (‘CoE’) reaffirm their ‘full commitment to the protection and implementation of social rights as guaranteed by the European Social Charter system’. In addition to making this important symbolic statement, they promise to ‘consider the organisation of a high-level conference on the European Social Charter, as a step to take further commitments under the Charter where possible’. That conference has now taken place, in Vilnius on 4 July 2024.
In this blog, I will discuss the political declaration adopted on that occasion. Before that, I will briefly describe the state of play of the European Social Charter (‘ESC’) system, through the lens of the Turin Process, a political process aimed at reforming that system, thus providing the context in which the Declaration needs to be understood.
In 2014, then Secretary General of the COE, Thorbjørn Jagland, launched the Turin Process. He identified ‘four crucial imperatives’: ‘all member states should ratify the Revised Charter and accept the collective complaints procedure’, ‘the decisions [collective complaints procedure] and conclusions [state reporting procedure] of the Committee must be followed up by States Parties’, ‘synergies between the Charter and EU Law need to be strengthened to avoid any conflict’ and ‘cooperation activities centred on the Charter need to be enhanced, including through national action plans and targeted training activities’.
The reform process culminated in a reform package adopted by the Committee of Ministers (‘CoM’) on 27 September 2022. This package was based on a report prepared by an ad hoc working group and concerns the state reporting procedure, ad hoc reports, the collective complaints procedure and dialogue between the ESC organs and the states parties. These four aspects of the reform process are summarised below.
The reform package enhances the efficiency and impact of the state reporting system ‘while reducing the reporting burden for states’. This is achieved by inviting the European Committee of Social Rights (‘ECSR’) to ask fewer and more targeted questions throughout the procedure. The CoM has also changed its approach to the procedure. It can adopt a recommendation if a state fails to act on the findings of the ECSR. Whereas the ministers adopted only 36 such recommendations between 1993 and 2007, they have adopted no less than 67 quite specific recommendations since April 2022.[i]
The states parties may now be asked to ‘to submit an ad hoc report for examination by the ECSR’ in ‘case new or critical issues arise with a broad or transversal scope or a pan-European dimension’. The ECSR does not adopt a conclusion on conformity with the ESC based on the reports. Instead, it provides a ‘general overview of the situations found and a broad legal analysis from a Charter perspective’. Its overview may form the basis for a recommendation by the CoM to the member states under Article 15.b of the CoE Statute. In 2023, the ECSR requested the first ad hoc reports on the cost of living crisis. Third parties could provide input until 30 June 2024.
Although the collective complaints procedure did not ‘call for major changes’, the CoM made some suggestions to the ECSR on how to approach the procedure. For example, the ministers encouraged the ECSR to apply the admissibility criteria strictly and to strengthen the adversarial nature of the procedure, which the ECSR was already doing. The CoM has also started to adopt more recommendations to follow up on this procedure: until July 2020, it adopted only one recommendation, but since then it has adopted 30 recommendations, again of a quite specific nature.[ii]
Finally, the CoM stimulated dialogue between the states parties and the ECS monitoring bodies. Such dialogue may involve ‘a group of States Parties seeking to address problematic issues that are common to them or States Parties that can share examples of good practice or experience that may be useful for others’ and, as appropriate, civil society. The dialogue may take the form of, for example, letters or country visits. In 2023, the ECSR held two dialogues (with Finland and Ukraine).
The CoM’s renewed attention to the ESC system in the form of a reform package introduced through the Turin Process and recommendations is clearly good news for the ESC system. More good news followed in Reykjavík, where the states recommitted to protecting the ESC rights. In addition, the ESC system’s budget was increased significantly in December 2023 (see details here) and Ireland and Greece supported new secondments. The budget increase is part of a ‘not insignificant’ overall increase in the CoE’s budget. With this increase, the member states have allowed the organisation’s budget to grow in real terms for the first time in almost thirty years.
Before turning to the Vilnius Declaration, it is worth mentioning that the CoM adopted a report titled ‘Improving the European Social Charter system: longer term substantive and procedural issues’ on 15 March 2023. The report is accompanied by a decision. In the discussion that follows, I use both documents to analyse the text of the Declaration.
The document begins with a reference to the Reykjavík Declaration’s paragraph on social rights, in which the states reaffirmed their full commitment ‘to the protection and implementation of social rights as guaranteed by the [ESC] system’. In the Vilnius Declaration, a somewhat less enthusiastic statement of recommitment is made: the representatives of the member states commit themselves to ‘respect, protect and implement social rights in general and, for the States Parties to the Charter, to pay continued attention to the challenges and opportunities to implement the Charter’s requirements […]’.
The Declaration states that the ESC provides ‘effective governance inputs […] in the pursuit of social justice and the protection of social rights’ through its monitoring procedures. The document also refers to a decision adopted by the CoM on 17 May 2024, which underlines ‘the importance of the [ESC] and its monitoring procedures for the protection of social and economic rights of citizens across Europe’. According to Aoife Nolan, President of the ECSR, the decision is ‘a far stronger statement of support than has emerged from other ministerial sessions’. Although the ESC system is given a pat on the back in both the decision and the Vilnius Declaration, the states still express less enthusiasm about the ESC system than they did about the ECHR system in, for example, the Reykjavík Declaration. That Declaration called the ECHR and the ECtHR ‘the ultimate guarantors of human rights across our continent, alongside our domestic democratic and judicial system’ and recalled the ‘extraordinary contribution of the system established by the [ECHR] to the protection and promotion of human rights and the rule of law in Europe’.
One point that was conspicuously missing from the Reykjavík Declaration is prominent in the Vilnius Declaration: a reference to the 1993 Vienna Declaration and Programme of Action, which states that all ‘human rights are universal, indivisible, interdependent and interrelated’. In addition to presenting social rights as human rights, the Vilnius Declaration emphasises the great importance of social rights by explaining the consequences of Russia’s war against Ukraine for the enjoyment of social rights and by linking these rights to the promotion of ‘democratic security and stability’. However, despite the reference to the Vienna Declaration, the ESC’s contribution to the protection of social (rather than human) rights is mentioned, as noted above. This shows that not all states seem to agree with the Vienna Declaration. To illustrate, the UK states in its submission to the High-Level Conference Programme that it ‘does not agree with the classification of social rights as being equivalent to human rights’; they are ‘distinct matters’.
Above the Vilnius Declaration is the phrase ‘a step by member States to take further commitments under the Charter’. This phrase raises the question of whether the states have not only reaffirmed their commitments, which I have already touched upon, but also taken on further commitments. This can be done in two broad ways and was encouraged in Vilnius through the organisation of a ‘treaty event’. Importantly, the March 2023 decision, instructed the Governmental Committee to examine ‘including as appropriate via the preparation of a recommendation under Article 15.b of the Statute, ways of’ promoting the acceptance of the ECS provisions, ratification of the Revised ESC and the collective complaints procedure. Thus, what the Vilnius Declaration lacks (in clear terms), may be addressed in the future by a CoM recommendation.
First, there is room (for some states) to ratify three ESC treaties, starting with the Revised ESC. The Vilnius Declaration encourages the – states ‘to consider ratifying’ this treaty. During the treaty event, Iceland responded to this call, bringing the number of ratifications to 36. During the Turin Process, three states (Greece, Germany and Spain) also took this step. Of the ten states that have not ratified this treaty, six have only ratified the 1961 ESC and four have not ratified either ESC. The second treaty is the 1991 Protocol amending the ESC. The Vilnius Declaration does not call on the four states whose acceptance is necessary for the entry into force of the Protocol to ratify it, although this was identified as ‘an issue’ in the March 2023 report. These states are blocking the entry into force of the Protocol and thus the election of the ECSR members by the PACE, as provided for in the Protocol. The CoM decided to already apply the other provisions. The last treaty is the 1995 Additional Protocol to the ESC Providing for a System of Collective Complaints. The Vilnius Declaration proposes ‘to keep under review the possibilities for acceptance of additional commitments under the Charter, including the collective complaints procedure’. Proposing to keep possibilities under review is not the same as actually calling on the states to ratify the Protocol. This was apparently politically impossible. Nevertheless, the March 2023 report identified the acceptance of this procedure as ‘a major step that could be taken […] towards strengthening the [ESC]’. In addition, the CoM, in its decision of May 2023, encouraged the states to ‘consider ratifying’ the Protocol. The treaty event did not result in any additional ratifications, but one more state (Spain) accepted the procedure during the Turin Process, bringing the total number of states that have done so to 16. A related issue that did not appear in the Vilnius Declaration, but which, according to the March 2023 report ‘could be revisited in the future, as appropriate’ is the recognition of the right of national NGOs to file collective complaints. So far, only Finland has done so.
The second way of accepting further commitments is to accept more ESC provisions as binding under the ‘à la carte’ system. As noted above, the Vilnius Declaration proposes ‘to keep under review the possibilities for acceptance of additional commitments under the Charter’. In addition, the document recognises ‘the possibility offered by the Charter for States Parties to increase progressively their commitments aimed at respecting, protecting and implementing social rights’. Simply referring to increasing commitments as a ‘possibility’ and keeping ‘possibilities’ under review is too cautious an approach, given the intention behind the ‘à la carte’ system. That intention is that the states can accept the provisions that they comply with when ratifying the ESC. They should then work to bring their domestic systems increasingly into line with the ESC, leading to an ‘acceptance of most – if not all – provisions […], as opposed to an à la carte stagnancy’ (see also here). This approach is foreshadowed in Article A Revised ESC, which allows the states parties to notify the Secretary General of their acceptance of additional provisions, and Article 22 ESC 1961, which provides for the states parties to submit reports on the provisions that they have not yet accepted to the Secretary General. Since the start of the Turin Process, three states (Belgium, Ukraine and Bulgaria) have accepted additional provisions. Andorra, Iceland and Ireland took the same step on the day of the adoption of the Vilnius Declaration. Perhaps the recently revised ‘non-accepted provisions procedure’ encouraged them to do so. Belgium, Armenia and Moldova may accept additional provisions or the collective complaints procedure in the near future.
In addition to ratifications and declarations, states can demonstrate their commitment to the ESC by improving their compliance with procedural requirements and with the decisions and conclusions of the ECSR. The Vilnius Declaration welcomes ‘the effective action taken by the States Parties to the [ESC] to address the findings and conclusions of the [ECSR] when necessary’. The document also encourages the states ‘to pay continued attention to the challenges and opportunities to implement the Charter’s requirements’ and invites the CoM to ‘give increased priority to co-operation activities in the field of social rights with a view to improving the implementation of the Charter in the light of the monitoring outcomes of the [ECSR] and related [CoM] recommendations’. Admittedly, the reality called for a more critical formulation, because while it is true that the states generally accept the ECSR’s findings, there is also much room for improvement in this respect (see also here). To illustrate, in 2023, the ECSR concluded that ‘significant violations’ of the ESC that it identified in its decisions on collective complaints continued to exist. Moreover, states often fail to send the information that the ECSR needs to reach conclusions in the state reporting procedure. The CoM has addressed this problem in two recent recommendations to a total of 23 states (here and here). This failure amounts to a violation of the states’ reporting obligations under Articles 21 and C of the 1961 and Revised ESC respectively.
On a different note, the Vilnius Declaration invites the ECSR ‘to apply, where possible, the existing Charter provisions to new and emerging social policy challenges’. The CoM is invited to ‘enable further discussions’ in areas such as ‘persistent and emerging challenges in the areas of work’, AI and work-life balance. As was to be expected based on the March 2023 decision, the states do not want to amend the Revised ESC to include new (aspects of) rights, such as the right to water, a healthy environment or non-standard forms of employment. Instead, they propose (in the same decision) to fill any gaps that may exist by, for example, elaborating soft law instruments in the form of CoM guidelines, recommendations or declarations.
The Vilnius Declaration invites the CoM to ‘ensure co-operation among [CoE] entities and committees in the area of social rights, and continue to work together while exploring possibilities to increase co-operation with other international organisations as well as with the European Union in promoting social rights as guaranteed by the [ESC]’. This invitation will resonate with the EU, as its La Hulpe Declaration on the Future of the European Pillar of Social Rights, adopted on 16 April 2024, states that ‘the EU should further enhance the cooperation with’ the CoE and ‘promote’ the ESC. The Vilnius Declaration only presents the EU as a partner to cooperate with; no mention is made of the potential accession of the EU to the ESC. Among other things, accession could help to resolve the incompatibilities between EU law and the ESC (see here for more details and references). As the March 2023 report explains, the delegations to the relevant working group were ‘reticent to taking steps immediately in connection with’ accession. Although they had no ‘fundamental objection’, they referred to the ‘lengthy and complex process of EU accession’ to the ECHR and some wanted to await the outcome of that process. However, the delegates also acknowledged that ‘early exploratory action […] might be possible and desirable in view of – and in response to – the strong and persistent calls made’ for accession from various actors. Even this idea did not make it into the Vilnius Declaration. Nor was it included in the Reykjavík Declaration, although an early draft of that document mentioned the idea of initiating, ‘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 […]’.
Perhaps the vaguest request to the CoM is to ‘remain open to considering possible measures for further optimising the Charter system’. This phrase may have been included to show that the door to further reform is not completely closed, but that there is currently a lack of political will to open it. Such measures may include items that were not included in the Vilnius Declaration and that I mentioned earlier (e.g. amending the ESC and EU accession). The March 2023 report may serve to identify other issues that could be taken up in the future. One such issue is the limited personal scope of the ESC (see here for an explanation). Some delegations involved in drafting the report were open to discussing this issue. Others, however, ‘were categorically opposed to discussing possible changes, expressing a strong attachment’ to the current personal scope. The same report identified the removal or shortening of the embargo on ECSR decisions in the collective complaints procedure as a reform that ‘received broad support for immediate further consideration’. However, this issue did not make it into the Declaration, perhaps because it can be taken up by the ‘Deputies or States Parties to the Charter or the organs of the Charter’ (see also here). Two other issues that did not appear in the Vilnius Declaration, but which the March 2023 report says ‘could be revisited in the future, as appropriate’ are increasing the number of ECSR members and intensifying the use of third-party interventions.
The Vilnius Declaration concludes by inviting the CoM to ‘explore regularly the need to convene this High-Level Conference to address contemporary social policy challenges, also taking into account the expected outcomes’. According to a post on LinkedIn by an ECSR member, the next conference will take place in Chișinău in 2026.
The Vilnius Declaration itself does not turn the tide for the ESC system. It did not lead to any significant reforms and the CoE states made only a few further commitments in Vilnius. Moreover, if we recall the ‘crucial imperatives’ formulated by then Secretary General Jagland at the launch of the Turin Process ten years ago, much work remains to be done: we are still far from the Revised ESC being ratified by all 46 CoE member states, there is room for improvement in the implementation of the ECSR’s findings, and conflicts between EU law and the ESC continue to exist. However, when looking beyond the text of the Vilnius Declaration, I agree with the ECSR President that ‘the tide is turning’ for the ESC system. This is mainly due to the warm-up to the High-Level Conference. The very fact that such a conference took place shows that the CoE states are prepared to invest time and attention in the system. Moreover, the Turin Process has produced a number of concrete results in terms of reforms and states taking on additional commitments, and the system’s budget has increased. Certainly, the outlook for the ECS system is less bleak than it was a few years ago.
[i] On 7 June 2024, I searched here using the filters ‘recommendation’; ‘English’; ‘European Social Charter’, which yielded to 134 results. 36 of these were recommendations adopted under the state reporting procedure in the period 1993-2007. Of the 134 results, 67 were adopted as part of this procedure in the period 2008-2024.
[ii] Of the 134 results mentioned in the previous note, 30 were adopted under the collective complaints procedure after 2001.
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