Ladies and Gentlemen,
I am honoured to represent before you the Academic Network on the European Social Charter and Social Rights, an organization consisting of legal academics – scholars and practitioners – from all over Europe, fully devoted to the social cause, many of whom have dedicated their entire careers to carefully observing and understanding the intricacies of the European supranational system of human rights protection.
I begin by conveying to you the greetings of our community and expressing on behalf of all of us the hope that this event will achieve its purpose, which is, basically, to allow the Charter to fully step into the role it was designed for by the founders of the two-pillar based European edifice for protection of human rights, as its 2nd leading guardian, next to its equal counter-part, the ECtHR.
1. The real significance of the strengthening of states’ commitments under the Charter Treaty can only be understood by placing it in context of the whole European supranational system of human rights protection. Any attempt to identify the full range of consequences that such an option would entail, by detaching it from this context, will lead to wrong conclusions, the most simplistic of which would be that the ‘burden’ of legal responsibility of states will increase – isn’t it? – since they assume new obligations derived from the Charter. In reality, things are exactly the opposite: answering „YES” to the invitation addressed to you today will not only relieve the States of unnecessary burdens, but will also restore the balance of the system itself, by ‘freeing’ it from its inner contradictions.
2. It should be understood from the outset that, at this moment, most if not all the obligations enshrined in the text of the Revised European Social Charter are, in one form or another, also subject to monitoring by the other two main supranational European judicial bodies – ECtHR and CJEU – either because the vast majority of them are already included in EU secondary legislation, or because situations of social vulnerability are frequently coming under ECtHR scrutiny through various articles of the Convention (not to mention the overlapping texts of the Convention and the Charter).
3. This ‘baroque’ diversity from one point onwards is no more a strength of the system, but a weakness which is called ‘legal insecurity’, resulting in frequently parallel and contradictory litigation and solutions, as long as a clear division of tasks between these 3 courts is not established.
4. The distribution of prerogatives between the ECtHR and the Committee does not pose many problems, since before the Court individual complaints are lodged – in other words, situations where defective national laws or practices have already made victims – whereas collective complaints are preventive in nature. From this perspective, it is clear that the collective complaints procedure can only bring advantages to a State: citizens of states that do not have access to the collective complaint procedure will always have a tendency to turn to the ECtHR, individually, when their social rights are violated. Why would a state risk an indefinite number of financial sanctions set by the Court of Strasbourg in situations perceived as abusive by its citizens, instead of addressing these potentially dangerous situations before they make victims, within the adversarial framework of collective proceedings, under the authority of a judicial body that may not impose pecuniary penalties but whose conclusions and analysis the ECtHR takes into account?
5. As for the CJEU, although respectful in many cases of human rights protection standards, when it comes to balancing the collisions between social rights and one or another of the freedoms of the internal market, the Court of Luxembourg has manifested a clear tendency to favour the latter, unfortunately forgetting most of the times that the internal market was made for people, not people for the internal market. This constant inner dilemma stems from the fact that the EU is, at its origin, an economic community whose main objective is the realization of an internal market. So, despite its best intentions, it is not easy for the EU to unbiasedly accommodate the turbulent marriage between social rights and the freedoms of the internal market. The EU has been often criticized for its oscillating attitude towards the Charter and towards the proposals to adhere to it (which indeed would be a wonderful way to harmonize human rights protection standards across Europe). Yet, we cannot help but wonder: how could be EU convinced to adhere to the Charter since Member States themselves do not fully assume it?
6. Against this complicated background, for the HR experts it has long became clear that, given Charter’s specific nature – non-binding in pecuniary terms and based on a culture of dialogue – and the specific role it was meant for, restoring this Treaty’s authority does not imply any loss of sovereignty by the Contracting Parties, but simply a coagulation of states and institutions around a set of values that fundamentally characterize European civilisational space.
7. This coagulation will contribute to a significant streamlining of the human rights protection system, reinforcing a clearer division of tasks, in line with the founding fathers’ original vision. In addition, it will send an important signal to both the national and the European judge who will be more inclined to respect the Charter system, as long as this system respects itself.
Cristina Sâmboan
General Coordinator of ANESC