PAIL Institute Publications

PAIL Institute Monograph Series

The European Social Charter: Second Edition

Author(s): Harris, David and John Darcy

Hardcover - 446 pages (2001)
ISBN: 1-57105-060-4

Current Price: US $125.00

---

This thoroughly revised edition of a standard work on the European Social Charter of 1961 describes and analyzes the amended Charter of 1996 and the Optional Protocol of 1995, with detailed attention to the jurisprudence of the independent Committee of Experts under those revised instruments. It also takes into account the substantial changes in the operation of the supervisory mechanism which have made the mechanism much more effective. The author's commentary proceeds in the broader context of international social and economic rights as expressed in the European Convention on Human Rights, European Union social law and the International Covenant on Economic, Social and Cultural Rights.

---

About The Author(s)

David Harris is Professor of Public International Law, Department of Law, at the University of Nottingham, England.

John Darcy, BCL, (NUI) is an attorney in the Secretariat of the European Social Charter at the Council of Europe, Strasbourg. Published under the auspices of the Procedural Aspects of International Law Institute.

---

Reviews

No reviews are available for this publication.

---

Availability

The European Social Charter: Second Edition is available from:

Transnational Publishers, Inc.
Ardsley Park Science & Technology Center
410 Saw Mill River Road
Ardsley, New York 10502-2615

(914) 693-5100
(800) 914-8186 (toll free)
(914) 693-4430 (fax)
email: info@transnationalpubs.com
http://www.transnationalpubs.com

The European Social Charter: Second Edition is also available from Amazon.com.

---

Table of Contents

	Editor's Foreword					xv
	Preface					xvii
	Abbreviations					xix
Chapter 1: The Background to the Charter and the Revised Charter						1
	A.	The Drafting of the 1961 Charter				1
	B.	The Outline of the 1961 Charter				8
	C.	The 1988 Additional Protocol to the 1961 Charter				10
	D.	The Revitalization of the European Social Charter				12
	E.	The 1991 Amending Protocol to the 1961 Charter				14
	F.	The 1995 Collective Complaints Protocol to the 1961 Charter				16
	G.	The 1996 Revised European Social Charter				17
	H.	The International Context				22
	I.	The Interpretation of the Charter and the Revised Charter				24
Chapter 2: The Substantive Guarantee: The Undertakings in the 1961 European Social Charter, the 1988 Additional Protocol, and the 1996 Revised European Social Charter						33
	A.	The Undertakings in the 1961 European Social Charter				33
		1.	The General Undertakings in Article 20 of the 1961 Charter			33
			a.	Article 20(1)(a): Undertaking Concerning the Aims of Economic and Social Policy		33
			b.	Article 20(1)(b) and (c): Undertaking to Accept Articles or Paragraphs in Part II of the Charter		36
		2.	Analysis of the Substantive Guarantee in Article 1 to 19 of Part II of the 1961 Charter			40
			Article 1: Right to Work			40
				Article 1(1): Full Employment		40
				Article 1(2): The Right of a Worker to Earn His Living in an Occupation Freely Entered Upon		44
				Article 1(3): Employment Services		53
				Article 1(4): Vocational Guidance, Training, and Rehabilitation		55
			Article 2: The Right to Just Conditions of Work			57
				Article 2(1): Reasonable Working Hours		58
				Article 2(2): Public Holidays with Pay		62
				Article 2(3): Annual Holidays with Pay		63
				Article 2(4): Holidays and Hours in Dangerous or Unhealthy Occupations		64
				Article 2(5): Weekly rest Periods		66
				Additional Paragraphs to Article 2 in the Revised Social Charter		67
			Article 3: The Right to Safe and Healthy Working Conditions			67
				Article 3(1): The Issue of Health and Safety Regulations		68
				Article 3(2): Enforcement of Regulations		70
				Article 3(3): Consultations with Employers' and Workers' Organizations		72
				Article 3 in the Revised Social Charter		73
			Article 4: The Right to a Fair Renumeration			74
				Article 4(1): Adequate Renumeration		74
				Article 4(2): Renumeration for Overtime Work		77
				Article 4(3): Equal Pay for Men and Women		79
				Article 4(4): reasonable Notice		83
				Article 4(5): Deduction from Wages		86
			Article 5: The Right to Organize			88
			Article 6: The Right to Bargain Collectively			98
				Article 6(1): Joint Consultation		98
				Article 6(2): Machinery for Voluntary Negotiations		100
				Article 6(3): Machinery for Conciliation and Voluntary Arbitration		103
				Article 6(4): The Right to Take Collective Action		104
			Article 7: The Right of Children and Young Persons to Protection			113
				Article 7(1): Minimum Age of Employment		113
				Article 7(2): Minimum Age of Employment in Dangerous and Unhealthy Occupations		116
				Article 7(3): Employment of School Children		118
				Article 7(4): Hours of Work of Persons Under Sixteen		120
				Article 7(5): Fair Wages or Allowances for Young Workers and Apprentices		121
				Article 7(6): Vocational Training During Work Hours		123
				Article 7(7): Three Weeks Annual Holiday with Pay for Persons Under Eighteen		124
				Article 7(8): Prohibition of Night Work for Persons Under Eighteen		125
				Article 7(9): Regular Medicial Examination of Persons Under Eighteen		125
				Article 7(10): Protection of Children and Young Persons Against Physical and Moral Dangers		127
			Article 8: The Right of Employed Women to Protection			128
				Article 8(1): Maternity Leave and Pay		129
				Article 8(2): Dismissal During Maternity Leave		132
				Article 8(3): Feeding Time for Nursing Mothers		134
				Article 8(4): Employment of Women in Certain Occupations		135
			Article 9: The Right to Vocational Guidance			137
			Article 10: The Right to Vocational Training			140
				Article 10(1): Technical and Vocational Training		141
				Article 10(2): Apprenticeships and Other Arrangements for Training Young Persons		144
				Article 10(3): Training Facilities for Adults		146
				Article 10(4): Encouragement of the Full Use of Facilities		147
				Article 10 in the Revised Social Charter		148
			Article 11: The Right to Protection of Health			149
				Article 11(1): Removal of Causes of Ill Health		150
				Article 11(2): Health Education		151
				Article 11(3): Prevention of Epidemics, Etc.		152
			Article 12: The Right to Social Security			153
				Article 12(1): Establishment or Maintenance of a Social Security System		155
				Article 12(2): Minimum Permissible Level of a Social Security System		157
				Article 12(3): Progressive Improvement of the Social Security System		159
				Article 12(4): Equal Treatment for Nationals of Other Contracting Parties in Social Security Matters		161
			Article 13: The Right to Social and Medical Assistance			165
				Article 13(1): Social and Medical Assistance to Persons in Need		166
				Article 13(2): Non-Discrimination Against Persons in Receipt of Social and Medical Assistance		171
				Article 13(3): Advice and Personal Help in Case of Want		172
				Article 13(4): Equality of Treatment		174
			Article 14: The Right to Benefit from Social Welfare Services			176
				Article 14(1): Provision or Promotion of Social Welfare Services		166
				Article 14(2): Encouragement of Private Participation in Social Welfare Services		179
			Article 15: The Right of Physically or Mentally Disabled Persons to Vocational Training, Rehabilitation, and Social Resettlement			180
				Article 15(1): Provision of Training Facilities		182
				Article 15(2): Placement of Disabled Persons		183
				Article 15 in the Revised Social Charter		184
			Article 16: The Right of the Family to Social, Legal, and Economic Protection			184
				Article 16 in the Revised Social Charter		193
			Article 17: The Rights of Mothers and Children to Social and Economic Protection			193
				Article 17 in the Revised Social Charter		200
			Article 18: The Right to Engage in a Gainful Occupation in the Territory of Other Contracting Parties			200
				Article 18(1): Liberal Applications of Existing Regulations		206
				Article 18(2): Simplifications of Regulations and Reduction of Abolition Charges		207
				Article 18(3): Liberalization of Regulations		209
				Article 18(4): The Right of Nationals to Leave the Country for Employment		210
			Article 19: The Right of Migrant Workers and Their Families to Protection and Assistance			211
				Article 19(1): Services to Assist Migrant Workers: Action to Prevent Misleading Propaganda		213
				Article 19(2): Assistance to Migrant Workers in respect to Their Journey		215
				Article 19(3): Co-operation Between Social Services		219
				Article 19(4): Equal Treatment in Respect of Employment, Trade Unions, and Accommodation		220
				Article 19(5): Equal Treatment in Respect to Taxation		224
				Article 19(6): Reunion of the Families of Migrant Workers		225
				Article 19(7): Equal Treatment in Respect to Legal Proceedings		230
				Article 19(8): Freedom from Expulsion		231
				Article 19(9): Transfer of Earnings and Savings		236
				Article 19(10): Extension to Self-Employment Workers		237
				Article 19 in the Revised Social Charter		237
	B.	The Undertakings in the 1988 Additional Protocol to the 1961 Charter				238
		1.	The General Undertakings in Article 5 of the Additional Protocol			238
			a.	Article 5(1)(a): Undertaking Concerning the Aims of Economic and Social Policy		239
			b.	Article 5(1)(a): Undertaking to Accept Part II Articles in the Protocl		239
		2.	Analysis of the Articles of the Protocol			239
			Article 1: The Right to Equal Opportunities and Equal Treatment in Matters of Employment and Occupation without Discrimination on the Grounds of Sex			239
			Article 2: The Right to Information and Consultation			243
			Article 3: The Right to Take Part in the Determiniation and Improvement of the Working Conditions and Working Environment			248
			Article 4: The Rights of the Elderly			250
				Article 4(1): Adequate resources and Information About Services and Facilities		251
				Article 4(2): Housing, Health Care and Other Services		252
				Article 4(3): Conditions in Institutional Accommodation		253
	C.	The Undertakings in the 1996 Revised European Social Charter				254
		1.	The General Undertakings in Article A of the Revised Charter			255
			a.	Article A(1)(a): Undertaking Concerning the Aims of Economic and Social Policy		255
			b.	Article A(1)(a): Undertaking to Accept Articles or Paragraphs in Part II of the Revised Charter		256
		2.	Analysis of the Articles of Part II of the Revised Charter: The Sunstantive Guarantee			256
			Articles 1 to 19 of the Revised Charter: Analysis of the Amendments Therein to Articles 1 to 19 of the Revised Charter			257
				Article 2(3): Annual Holidays with Pay		257
				Article 2(4): Extra Holidays or Reduced Working Hours for Dangerous or Unhealthy Work		258
				Article 2(6): Written Notice of the Contract of Employment		258
				Article 2(7): Measures to Protect Night Workers		259
				Article 3: The Right to Safe and Healthy Working Conditions		259
				Article 3(1): National Policy on Occupational Safety and Health and on the Working Environment		260
				Article 3(2) and (3): The Issue and Enforcement of Safety and Health Regulations		260
				Article 3(4): Occupational Health Services		260
				Article 7(2): Minimum Age of Employment in Dangerous or Unhealthy Occupations		261
				Article 7(4): Hours of Work of Persons Under Eighteen		261
				Article 7(7): Hour Weeks Annual Holiday with Pay for Persons Under Eighteen		261
				Article 8(1): Maternity Leave with Pay		262
				Article 8(2): Dismissal During Maternity Leave		262
				Article 8(4): Employment of Women Before or After Child Birth in Night Work		263
				Article 8(5): Employment of Women Before or After Child Birth in Dangerous, Unhealthy or Arduous Work		264
				Article 10(4): Retraining and Reintegration of the Long-Term Unemployed		264
				Article 11(3): Prevention of Diseases and Accidents		265
				Article 12(2): Minimum Permissible Level of a Social Security System		265
				Article 15: The Right of Persons with Disabilities to Independence, Social Integration and Participation in the Life of the Community		266
				Article 15(1): Provision of Guidance, Education and Vocational Training		266
				Article 15(2): Pacement in Employment		266
				Article 15(3): Social Integration and Participation		267
				Article 16: The Right of the Family to Social, Legal and Economic Protection		267
				Article 17: The Right of Children and Young Persons to Social, Legal and Economic Protection		268
				Article 17(1): The Provision of Institutions and Services to Provide Care, Education and Training		268
				Article 17(2): Provision of Education		269
				Article 19(6): Reunion of the Families of Migrant Workers		269
				Article 19(11): Language Teaching for Migrant Workers and Their Families		270
				Article 19(12): Instruction of Migrant Workers' Children in Their Mother Tongue		270
			Analysis of Articles 24 to 31 of the Revised Charter			271
				Article 24: The Right to Protection in Cases of Termination of Employment		271
				Article 25: The Right of Workers to Protection of Their Claims in the Event of the Insolvency of Their Employer		274
				Article 26: The Right to Dignity at Work		274
				Article 27: The Right of Workers with Family Responsbilities to Equal Opportunities and Equal Treatment		277
				Article 28: The Right of Workers' Representatives to Protection in the Undertaking and Facilities to be Accorded to Them		278
				Article 29: The Right to Information and Consultation in Collective Redundancy Procedures		279
				Article 30: The Right to Protection Against Social Exclusion and Poverty		280
				Article 31: The Right to Housing		282
	D.	The Record of Compliance with the Charter				284
	E.	An Assessment of the Guarantee in the Charter				287
Chapter 3: The System of Supervision						293
	A.	The European Committee of Social Rights				293
		1.	Membership			293
		2.	Organization of Work			301
	B.	The Governmental Committee				302
		1.	Membership			302
		2.	Organization of Work			303
	C.	The System of National Reports				306
		1.	Reports on Accepted Provisions			306
		2.	Reports on Unaccepted Provisions			314
		3.	Comments on Reports by National Employers and Trade Union Organizations, Etc.			315
		4.	Publication of National Reports and Comments on Them			317
	D.	The Examination of National Reports by the European Commitee of Social Rights				318
		1.	Organization of Work			319
		2.	Function			325
			a.	Article 21 Reports		325
			b.	Article 22 Reports		329
	E.	Examination of National Reports by the Governmental Committee				330
		1.	Function and Organization of Work			331
			a.	Article 21 Reports		331
			b.	Article 22 Reports		347
		2.	General Advisory Role			347
	F.	The Role of the Parliamentary Assembly				348
	G.	The Role of the Committee of Ministers				349
	H.	Collective Complaints				354
		1.	Organizations That May Bring a Complaint			356
		2.	The Subject Matter of Complaints			360
		3.	The Lodging and Admissibility of Complaints			361
		4.	The Hearing and Determination of Complaints on the Merits			364
		5.	The Role of the Committee of Ministers			365
		6.	The Relationship Between the Complaints and the Reporting Systems			369
	I.	Concluding Comments				370
	J.	The System of Supervision as a Whole: Some Comments				374
Chapter 4: Restrictions on the Application of the Charter						377
	A.	Derogation from Charter Obligations in Time of War or Public Emergency				377
	B.	Restrictions in the Public Interest				380
	C.	Abuse of Power				382
	D.	Article 33: Implementation by Collective Agreements				382
	E.	Application Ratione Personae				385
		1.	Nationality Limitations and the Position of Refugees and Stateless Persons			385
		2.	The self-Employed			388
		3.	Workers in Agriculture			388
	F.	Territorial Application				388
	G.	Reservations				391
	H.	Relations Between the Charter and Municipal Law				395
Chapter 5: The Charter: Achievements and Prospects						397

Appendix I	Table of Signatories and Contracting Parties to the Charter, Its Protocols, and the Revised Charter		409
Appendix II	Paragraphs of the 1961 Charter, 1988 Protocol, and Revised Charter Accepted by Parties and the Record of Compliance Therewith		411
Appendix III	List of International Non-Governmental Organizations Entitled to Submit Collective Complaints		417
Index			419
About the Procedural Aspects of International Law Institute			429
Procedural Aspects of International Law Monograph Series			429
Other PAIL Publications			431