MOOT COURT ON THE EUROPEAN SOCIAL CHARTER

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Brussels, 1 April 2022

Saint-Louis University of Brussels

 

       

General Presentation

 

During the academic year 2021-2022, and at the initiative of its Belgian section, the Academic Network on the European Social Charter and social rights will organise the first edition of a “Moot Court” related to the European Social Charter. This bilingual (French-English) competition is based on a fictitious collective complaint and includes a written phase and an oral phase (a simulated « hearing » before the European Committee of Social Rights).

Participation in the competition is open to law students registered at a university. By drawing lots, half of the teams on the lists are given the status of “claimants” and the other half the status of “respondent government”.

The written phase consists of the drafting of a collective complaint (for “applicant” teams) or a memorandum (for “respondent government” teams).

The oral phase consists of a mock “hearing” before the European Committee of Social Rights (represented by the juries), within the meaning of Article 7 (4) of the Protocol of 9 November 1995.

Competition Calendar 2021-2022

 

8 October 2021: Seminar in Brussels on the collective complaints system. This seminar, organised on the occasion of the 60th anniversary of the Charter, was dedicated to legal practitioners as well as to students participating in the competition, in order to familiarise them with the procedure

25 October 2021: official registration of teams

1 November 2021: unveiling of the “case”

1 December 2021: submission of questions to the jury

15 February 2022: submission of written material

1 April 2022: oral phase in Brussels

 

NB: the deadline for registration of the teams has expired on October 25.

Registration for the 2021-2022 Competition

 

Team registration can be done by email at sebastien.vandrooghenbroeck@usaintlouis.be. Information can be obtained at the same address.

Rules

 

Terminology: the opposing parties are referred to as “Claimants” and “Respondent Governments”, and their respective pleadings as “Complaint” and “Memorandum”.

1 ° The fictitious case

1.1. The fictitious case raises the question of the compatibility of a practice or legislation of a fictitious State Party to the European Social Charter. The matter is the subject of a fictitious collective complaint to the European Committee of Social Rights;

1.2. The fictitious case is written by the Scientific Committee. The statement contains sufficient guidance for the opposing teams to focus their procedural writing on identical issues, while being drafted simultaneously.

2° Teams

2.1. Contest entry is open to law students registered in a university;

2.2. Each participating university can only send one team. Two or more universities may decide to form a team together;

2.3. By drawing lots, half of the teams in the lists receive the status of “claimants”, and the other half the status of “respondent government »;

2.4. Only the best 10 teams in each category at the end of the written phase can take part to the Oral Phase;

2.5. Each team has two “litigants” (students), a legal / linguistic “advisor” (student) and a coach (assistant / doctoral student / professor). The legal / linguistic “advisor” helps the litigants prepare the reply and the answers to the jury’s questions. He may speak in debates only at the stage of replies and questions. The distribution of roles between litigants and legal / linguistic adviser can be modified during the final hearing.

3 ° The Scientific Committee

3.1. The Scientific Committee is composed of 6 persons with a great expertise in the field of European Social Charter law. It is designated by common accord by the Network Coordinating Committee;

3.2. The Scientific Committee drafts the fictitious case, answers the questions asked by the teams relatively to the case, and assigns a note to the writings ;

3.3. The Scientific Committee appoints some of the members to take part in the juries of the oral phase.

4 ° Juries

4.1. Juries (jury and sub-jury) act as the European Committee of Social Rights;

4.2. The Plenary Jury includes 8 persons nominated jointly by the Network Coordinating Committee. At least 4 members of the jury are members of the Scientific Committee, and the others, having a good knowledge of the issues raised by the fictitious case, are personalities from the academic world, the judiciary, the Bar, the authorities of the European Social Charter or civil society;

4.3. The full Jury designates a President and a Vice-President from among its members. In the event of a tie, the President has the casting vote;

4.4. The Plenary Jury is composed of two sub-juries of 4 persons, including a member of the Scientific Committee. The President of the Plenary Jury sits on one of the two sub-juries and serves as its chair. The other sub-jury is chaired by the Vice-President of the Plenary Jury. In case of division of votes in the sub-juries, the vote of their respective chairman is preponderant;

4.5. Sub-juries hear oral argument at the stage of “qualification hearings”. As far as possible, they cannot include a person teaching or having taught at one of the Universities called to compete at the qualifying hearings;

4.6. The plenary panel hears the final hearing, proclaims the victorious team of this final, awards the prize for the best writing, the prize of best pleader of the “qualification hearing” and best pleader of the final hearing.

5 ° The written phase

5.1. The written phase consists of the drafting of either a collective complaint (for “claimant” teams) or a memorandum (for “respondent government” teams);

5.2. The complaint or memorandum may not contain more than 9,000 words (including footnotes), otherwise points will be lost;

5.3. The memorandum must be sent to the Scientific Committee in anonymous form, within the deadline set by the competition timetable, failing which it will not be accepted;

5.4. A maximum of 2 questions per team may be asked to the Scientific Committee, within the deadline set by the competition schedule. The questions asked and their answers are communicated to the other teams;

5.5. The complaint and the memorandum are the subject of a note between 0 and 20, delivered by the Scientific Committee on the basis of a grid of quotation which it determines previously. This note is not communicated before the final “hearing”;

5.6. Seven calendar days before the oral phase, the complaints are communicated, in anonymised form, to all the “respondent government” teams, with a view to the preparation of the hearings. Likewise, complaints are communicated to all “claimants” teams.

6 ° The Oral Phase

6.1. The Oral Phase consists of a simulated “hearing” in front of the European Committee of Social Rights, represented by the juries, within the meaning of Article 7 (4) of the Protocol of 9 November 1995. This oral phase consists of two stages: the “qualifying hearing” and the “final hearing”;

6.2. Both in the qualifying hearings and in the final hearing, the performance delivered by the team must not reproduce the argument of the procedural writing, but highlight the important points and respond to the argument of the opponent. The ability of the teams to respond to the opponents’ arguments and the questions of the juries is taken into account in the scoring of pleadings;

6.3. The “litigants” of each team divide the time between them as they wish. The legal / linguistic “advisor” can only speak in debates at the stage of replies and questions;

6.4. During the “qualifying hearings”, each team faces a team of the opposite status, designated three days earlier by drawing lots. The result of the draw is communicated to the teams the day before the Oral Phase;

6.5. The “qualifying hearings” take place, in parallel, before one or the other of the two sub-juries formed at the beginning of the full jury.

6.6. For each team, the qualifying hearing lasts for a maximum of 20 minutes. Each team has, at most, 3 minutes of reply. At the end of the debates, the jury submits to each team the same two questions. The first question is addressed first to one of the two teams, and the second question is addressed in the first place to the other team.

6.7. The “qualifying hearing” of each team is rated by the sub-jury between 0 and 20 points;

6.8. The final hearing is between the “claimants” team and the “respondent governments” team, whose scores for both the writing and the qualifying hearings are the highest. In the event of a tie, the teams are broken down into the best in answering ten questions relatively to the Charter developed by the Scientific Committee;

6.9. The “final hearing” takes place before the full jury;

6.10. In the final, each team has a maximum of 15 minutes to deliver its argument, and 5 minutes to respond. The “final hearing” cannot be limited to reproduce the arguments developed during the ” qualifying hearing”. At the end of the debates, the jury submits to each team the same two questions. The first question is addressed first to one of the two teams, and the second question is addressed in the first place to the other team.

7 ° Bilingualism

7.1. Each team writes its writing and presents its oral argument in English, French or both languages;

7.2. During the hearings, the sub-juries and the plenary panel ask at least one of their questions in the language other than the one chosen by the teams to write most of their writings;

7.3. The questions intended to determine the winning team in case of two teams have an equal score at the end of the qualifying hearings (6.8.) are written half in French and half in English.

8 ° Valorisation of the participation in the competition as part of the study programme

Each university is free to value as it wishes participation in the competition, as part of its own program of study (exemption from practical work, substitution of all or part of one of the classes, …).

9 ° Prices

The plenary jury awards three prizes :

– The winning team of the final hearing;
– The best pleader(s) ;
– The best procedural writing.

10 ° Location

The final of the competition is organised in turn by a National Section of the Network, in the place it determines.

Case 2021-2022

 

Orvalistan is a (fictitious) member state of the Council of Europe, with a population of 20 million, all of whom are of the “Orvalis” ethnic group. It ratified in 2005 the Revised Social Charter of 3 May 1996 and has accepted all the articles it contains, in application of Article A of Part II of the Charter. In 2010, it acceded to the Protocol of 9 November 1995 “providing for a system of collective complaints”. Furthermore, in 2005, it ratified without reservation the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, known as the “European Convention on Human Rights ».

Duvelistan is a (fictitious) neighbouring state to Orvalistan, and is populated by 40 million people, the majority of whom belong to the “Duvelis” ethnic group. It is not a member of the Council of Europe, nor, therefore, a party to the European Convention on Human Rights and the European Social Charter. About 6,000 citizens of Duvelistan are employed by private companies in Orvalistan.

Like any other state in the world, Orvalistan was hit by the Covid-19 pandemic in March 2020. In order to take all the necessary measures to enable it to deal with the pandemic, Orvalistan has declared a state of health emergency (15 March 2020), in accordance with the constitutional procedures applicable within the country. The regime, thus established, allows it to derogate by law from all the rights and freedoms guaranteed by its Constitution, with the exception of the right to respect for human dignity (Art. 1 of the Constitution), the prohibition of torture, inhuman and degrading treatment and punishment (Art. 4 of the Constitution), the right to life (Art. 5 of the Constitution), the prohibition of slavery and servitude (Art. 6 of the Constitution), the prohibition of racial discrimination (Art. 12 of the Constitution), and the principle of legality in criminal matters (Art. 20 of the Constitution).

The state of health emergency came into effect on 1 April 2020. On 18 March 2020, Orvalistan sent a notification based on Article 15 of the European Convention on Human Rights to the Secretary General of the Council of Europe, which reads as follows:

“The Permanent Representation of the Republic of Orvalistan to the Council of Europe presents its compliments to the Secretary General of the Council of Europe and has the honour to inform her that in response to the global outbreak and spread of COVID-19 virus, the Government of the Republic of Orvalistan has declared on 15 March 2020, in accordance with the applicable constitutional provisions, a state of health emergency throughout the country. This state of emergency will remain in effect until the World Health Organisation officially declares the end of the pandemic.

Measures taken during the state of emergency may include derogations from the obligations of the Republic of Orvalistan under Articles 8 to 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms, read alone or in conjunction with Articles 13 and 14 thereof, as well as Article 2 of the fourth additional protocol to that Convention, read alone or in conjunction with Articles 13 and 14 thereof. Therefore, the Permanent Representation requests that this Note be considered as a notification in accordance with Article 15 of the Convention.

In the future, the Permanent Representation of the Republic of Orvalistan will notify the Secretary General when the state of health emergency is lifted.

The Permanent Representation of the Republic of Orvalistan to the Council of Europe avails itself of this opportunity to renew to the Secretary General of the Council of Europe the assurances of its highest consideration”.

On 15 September 2021, due to an upsurge in contaminations, a law “providing for various health measures relating to employment” was enacted, Article 12 of which states:

“Any person of Duvalistani nationality employed under a contract of employment in the territory of Orvalistan shall produce, within three days of the coming into force of this Act, a certificate attesting of his or her complete vaccination against the Covid-19 virus. Failing this, the employment contract will be automatically terminated, without notice or compensation”.

In the explanatory memorandum to the law, the Minister in charge of Public Health specified that :

“At present, although vaccination is not compulsory in Orvalistan, high vaccination coverage has been achieved spontaneously. The Government therefore believes that a general vaccination requirement would not produce significant gains, and would probably even be counterproductive, as it would be perceived as an unnecessary limitation to rights and freedoms by the population. On the other hand, vaccination coverage is very low in Duvelistan, for reasons related to the religious beliefs of the Duvelis. Vaccines are not reimbursed in Duvelistan. Workers in the state of Duvelistan therefore pose an increased health risk, and only those who are vaccinated should be allowed to continue working in Orvalistan’s enterprises. It goes without saying that, in accordance with the applicable legislation, these workers will not have the possibility to be vaccinated in Orvalistan, not even if they pay for it, in order not to compromise the priority availability of doses for the benefit of nationals only”.

The law came into force on the day of its publication in the Official Gazette of Orvalistan, i.e. on 16 September 2021.

On 20 September 2021, the Union of Frontier Workers of Duvelistan, which exists since 1974 and is recognised by the Ministry of Employment of Orvalistan, filed an application for annulment before the Constitutional Court of Orvalistan against the promulgated law, alleging that it was discriminatory and infringed on the right to work and to privacy. In a decision of 20 October 2021, the Constitutional Court ruled that the application was admissible, but manifestly unfounded: the Constitutional Court recalled that the constitutional rights in question applied equally to both nationals and foreigners, but noted that the state of health emergency, in force since 1 April 2020, allowed the legislator to derogate completely from the constitutional rights and freedoms in question. On 23 October 2021, the Union of Frontier Workers of Duvelistan announced that it would file a collective complaint with the European Committee of Social Rights against this new legislation, denouncing its infringement of the rights guaranteed by Articles 1, 11, 13, 19 and 24 of the Revised Charter, as well as its discriminatory character, contrary to Article E. On 24 October 2021, the government of Orvalistan announced that it was confidently awaiting this complaint, which in all respects seemed inadmissible and unfounded to said government. On the first point, it emphasised in particular that the trade union that had lodged the claim, although recognised, was not “representative” within the meaning of Orvalistan’s domestic legislation because of the too small number of workers affiliated to it. A trade union can only be “representative” if it has at least 100,000 members. On the second point, the Government stated that, “given the derogations allowed to them in the event of a crisis, and their limited scope ratione personae, the rights put forward by the collective complaint are certainly not violated”.

Questions from the 2021-2022 Competition Temas

 

1. Under what conditions permanent residents and commuters can have access to the Orvali social and health care systems’ benefits?

The workers concerned by the collective complaint are all cross-border workers who reside in Duvelistan and are affiliated to the social security system there. They do not, however, benefit from the social security system (including the health care system) of Orvalistan.

2. How can national/ethnic minorities be defined in the national law of Orvalistan?

The Nationality Code of Orvalistan defines the manner in which the nationality of that State is acquired, and it is on the basis of this criterion that the distinction in treatment made by Article 12 of the Law of 15 September 2021 is based. On the other hand, the law of Orvalistan does not include a definition of a ‘national minority’ or an ‘ethnic minority’, and does not provide for a specific legal regime applicable to these minorities, apart from the prohibition of discrimination contained in Article 12 of the Constitution.

3. As the law of 15 September 2021, in its Article 12 targets directly and explicitly ‘’any person of Duvalistan nationality’’, we would like to know if other legislative acts, or even other articles of the same law, make explicit reference to different frontier workers or more in general to foreigners working in Orvalistan.

No. Article 12 of the Law of 15 September 2021 is the only provision of this law that makes a distinction of treatment on the basis of nationality, and it refers only to persons who have the nationality of Duvelistan.

4. We would like to have a clarification about the living situation of Duvelistan people who work in Orvalistan. In particular, we would like to know the percentage of Duvelistan workers who lawfully reside in Orvalistan and the percentage of those who commute.

All workers with Duvelistan nationality who are concerned by the collective complaint are workers who reside in Duvelistan, but who cross the border every day to work in Orvalistan. Apart from this, the collective claim does not give any figures on this distribution of workers from Duvelistan.

5. Quelles sont les termes des dispositions constitutionnelles relatives à l’état d’urgence (procédure, garanties et textes des libertés et droits dérogeables) ?

According to the Constitution, a state of emergency may be declared “in case of war or other public danger threatening the life of the nation”. The Constitution specifically refers in this regard to “terrorism”, “environmental disasters” and “health emergencies created by a pandemic”. A state of emergency is declared by the Council of Ministers, subject to confirmation by the Parliamentary Assembly within three days. The state of emergency allows the law to derogate from all the rights and freedoms guaranteed by the Constitution, with the exception of the right to respect for human dignity (Art. 1 of the Constitution), the prohibition of torture, inhuman and degrading treatment and punishment (Art. 4 of the Constitution), the right to life (Art. 5 of the Constitution), the prohibition of slavery and servitude (Art. 6 of the Constitution), the prohibition of racial discrimination (Art. 12 of the Constitution), and the principle of legality in criminal matters (Art. 20 of the Constitution).

6. Quelles sont les conditions d’approvisionnement de l’Etat d’Orvalistan en termes de vaccins (stocks disponibles + flux d’achats) ?

At the time of the enactment of the law on 15 September 2021, Orvalistan has a stockpile of vaccine to vaccinate all those in its population who have not yet been vaccinated. Orders have been placed for an additional dose (booster shot), should it be required.

7. Quelles caractéristiques des vaccins utilisent l’Orvalistan et le Duvelistan afin de déterminer si le délai de 3 jours est raisonnable ?

These are the same vaccines that have been used in Europe: either two doses or, for some, one dose.

8. Peut-on inventer une organisation afin de pouvoir intenter une réclamation collective ou doit-on trouver une véritable organisation, existant au sein du Conseil de l’Europe ?

The identity of the organisation that lodged the complaint is already known: it is the Union of Frontier Workers of Duvelistan.

9. Les autres ressortissants étrangers en Orvelistan sont-ils soumis au même régime que celui prévu pour les ressortissants duvelistanais par l’article 12 de la loi du 15 septembre 2021, précisé par l’exposé des motifs de cette même loi ?

See answer to question 3.

10. Quelle est la proportion des 6000 travailleurs duvelistanais qui fait partie de l’ethnie “Duvelis” ?

The majority of them, like the population of Duvelistan in general.

11. Does the “Union of Frontier Workers of Duvelistan” represent the vast majority of the workers in one of the sectors in which Duveli workers are employed in Orvalistan?

The collective complaint does not say anything about this.

12. Are there any refugees among the Duvelis working in Orvalistan?

No.

13. Pourriez-vous décrire les mesures prises par le gouvernement Orvalistanais pour essayer de contenir l’épidémie sur son territoire avant la loi du 15 septembre 2021?

All the measures that have been taken by other member states of the Council of Europe have been tried: total lockdown (at certain times), distancing, Sanitary Pass/Green Pass/Covid Safe Ticket…

14. Pourrions-nous avoir plus d’informations sur l’activité-même du syndicat frontalier des travailleurs duvelistanais?

It represents and defends the interests of frontier workers by carrying out the usual trade union activities: information, lobbying, legal action, collective action, …. It is recognised by the Ministry of Employment of Orvalistan.

15. Combien de travailleurs duvelistanais sont affiliés au Syndicat des travailleurs frontaliers duvelistanais ? How many workers are members of the Union of Frontier Workers of Duvelistan ?

The vast majority of the 6,000 frontier workers from Duvelistan.

16. S’il y a d’autres ressortissants étrangers que ceux du Duvelistan qui sont employés dans les liens d’un contrat de travail sur le territoire de l’Orvalistan, les mêmes mesures leur sont-elles imposées ?

If there are other foreign nationals than those of Duvelistan who are working under an employement contract in the territory of Orvalistan, are the same measures imposed on them ?

See answer to question 3.

Participants in the 2021-2022 Competition

 

University of Ferrara (Italy)
University Saint-Louis-Brussels (Belgium)
Vrije Universiteit Brussel (Belgium)
University of Rouen (France)
University of Paris-Saclay (France)
Eötvös Loránd University (Hungary)
University of Milan (Italy)
Sorbonne Paris Nord University (France)
Maynooth University (Ireland)