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In a recently published decision, the European Committee of Social Rights (ECSR) found that Greece’s legislation enacted between 2010 and 2014 in response to the economic crisis violated the rights to work, to just conditions of work, to fair pay, to protection for children and young persons against hazards, and to participate in decision making processes on working conditions established in the 1961 European Social Charter (1961 Charter) and the 1988 Additional Protocol. See ECSR, Greek General Confederation of Labour (GSEE) v. Greece, Complaint No. 111/2014, Merits, 23 March 2017. The Council of Europe’s (COE) Committee of Ministers adopted a resolution on July 5, 2017, that led to the publication of the ECSR’s merits decision in Greek General Confederation of Labour (GSEE) v. Greece. [COE Press Release] Greece argued that the legislation was necessary to ensure that Greece remained in the Eurozone by stimulating growth and job creation. See Greek General Confederation of Labour (GSEE) v. Greece, 23 March 2017, para. 49. The ECSR took account of the scale and severity of the economic and financial crisis that led to the adoption of the legislation at issue; however, it nevertheless concluded that none of the restrictions to social rights imposed via the legislation were permissible under articles 30 (derogations in time of war or public emergency) or 31 (restrictions to rights permitted under the Charter) of the Social Charter, resulting in several violations. See id. at paras. 93, 246-250.
Analysis
The ECSR found that Greece did not violate Article 1(1) of the 1961 Charter, which protects the right to work and is concerned with achieving and maintaining the maximum level of employment, but did violate Article 1(2), which protects the right to earn a living through work of one’s choosing. See GSEE v. Greece, 23 March 2017, para. 125. According to the Committee under Article 1(1), Member States are required to adopt an economic policy that is conducive to maintaining jobs and assisting unemployed persons in finding jobs. See id. at para. 125. Although the ECSR acknowledged that unemployment in Greece has reached significantly high rates since 2008 impacting the living standard, it did not find that the legislation at issue in the case was a direct cause of the rate of unemployment. See id. at paras. 127-29.
Article 1(2), the ECSR acknowledges, protects against all forms of discrimination, forced labor, and any practice that may interfere with workers’ right to earn a living. See id. at para. 131. The ECSR found that legislation lowering the minimum wage for workers under 25 gave rise to discrimination on the grounds of age and was in violation of Article 1(2) of the 1961 Charter. See id. at paras. 132-38.
The ECSR concluded that working time under the new legislation violates Article 2 (right to just conditions of work) due to the vague legal framework and the consequent lack of collective bargaining guarantees. See id. at paras. 157, 159-60. The protections under Article 2 of the 1961 Charter protect reasonable daily and weekly working hours, and weekly rest periods. See id. at para. 139. The ECSR found that under the legislation, employees could be required to work up to 78 hours per week and concluded that this period is too long to qualify within the meaning of “reasonable” working hours under Article 2. See id. at para. 154. The ECSR also clarified that to comply with the 1961 Charter, the maximum duration of work has to operate within a legal framework that clearly outlines the scope left to employers and employees to modify working time. See id. at para. 157. The legislation at issue in the case did not define the scope available to employers and employees to negotiate collective agreements and, therefore, does not offer the required guarantees to comply with Article 2. See id. at paras. 159-60.
The Committee found that Greece violated Article 4 of the 1961 Charter (the right to fair remuneration) on several grounds. Article 4 requires that the minimum or lowest wage does not fall below 60 percent of the net average wage. See id. at paras. 187, 190-93, 197, 205. Although the parties did not provide information regarding the average and minimum wages, the ECSR concluded that the reduced minimum wage for workers under 25 years included in the legislation was “manifestly unfair” within the meaning of Article 4. See id. at paras. 190-93. The ECSR then addressed the age discrimination implications and held that the provision, in light of the non-discrimination clause of the Preamble of the 1961 Charter, constituted discrimination on grounds of age. See para. 197. The ECSR also considered Article 4(4) addressing the right to reasonable notice of termination of employment. See id. at paras. 198-205. It found that the legislation at issue lacked notice periods or severance pay for when an employee is dismissed during a probationary period and, therefore, is in violation of Article 4(4). See id. at para. 205.
The Committee found Greece violated Article 7 (right of children and young persons to protections against physical and moral hazards in the work place) of the 1961 Charter. See id. at para. 230. The ECSR noted that under the 1961 Charter, persons under 18 years of age must be given at least four weeks of annual paid leave. See id. at para. 226. Legislation passed between 2010 and 2014 excluded workers between 15 and 18 years of age from the right to three weeks of annual paid leave under their apprenticeship contracts. See id. at para. 208. As such, the ECSR held that the legislation was in violation of Article 7. See id. at para. 230.
Finally, the ECSR considered Article 3 of the 1988 Additional Protocol requiring that workers and their representatives have the option to participate in the decision making process of matters that involve the determination and improvement of working conditions. See id. at para. 243. The ECSR found a violation of Article 3 because while the legislation abolished the collective bargaining system in place, it did not put forth any measures to substitute that system and did not include any provisions to otherwise ensure the State’s obligations under Article 3 are fulfilled. See id. at para. 244.
Although the ECSR was aware of the scale of the economic and financial crisis that gave rise to the violations outlined above, it observed that the goal of the European Social Charter, and its own role to address complaints, is to protect practical and effective rights no matter the circumstances. See id. at para. 248. Under articles 30 and 31 of the 1961 Charter, a State may derogate from the rights in the Charter if there is a public emergency or it is in the public interest and the restrictions are necessary in a democratic society to achieve a pressing social need. See id. at paras. 83, 87. While a State has a certain margin of appreciation when determining what constitutes the public interest, it must balance, the Committee noted, the public interest with the protection of rights. See id. at para. 86. The Committee reiterated, though, that a State may not use an economic crisis to deny the protection of the rights in the Charter. See id. at para. 88.
In this instance, the Committee noted that the State was under pressure from creditors to accommodate their restrictions with regards to the right to work, the minimum wage and working time, collective bargaining, and other measures, but, the Committee stated, a State party cannot skirt its obligations under the Charter by allowing outside institutions, such as the creditors in this case, to determine what is in the public interest. See id. at para. 87. Ultimately, while the Committee conceded that the domestic legislation put forth in response to the economic crisis could be in pursuit of a legitimate public interest, there was no evidence to show that the State adequately weighed the restrictions against the impact to vulnerable groups or considered less restrictive means to achieve the same end. Therefore, the restrictions were not justified under articles 30 and 31. See id. at paras. 90-91.
Post-Decision Procedure
The resolution adopted on July 5, 2017, that made public the decision on the merits in GSEE v. Greece called on Greek authorities to submit a report on the measures taken or planned to comply with the European Social Charter, and instructs the Rapporteur Group on Social and Health Questions (GR-SOC) to examine the follow-up to the report during its next meeting. See Committee of Ministers, Resolution CM/ResChS(2017)9, Greek General Confederation of Labour (GSEE) v. Greece, Complaint No. 111/2014, 5 July 2017.
Background on the ECSR & the Committee of Ministers
The European Committee of Social Rights, which has its seat in Strasbourg, France, is the regional body tasked with monitoring the implementation of the 1961 European Social Charter, its 1988 Additional Protocol, and the 1996 Revised European Social Charter. See IJRC, European Committee of Social Rights. These instruments address topics that can largely be characterized as labor rights, such as the rights to safe working conditions, collective bargaining, and fair pay. The Committee, which consists of 15 independent experts, fulfills its mandate by managing a State reporting system and an innovative collective complaints procedure. States are afforded a certain level of flexibility in deciding which Charter provisions to accept and whether or not to participate in the collective complaints procedure. See IJRC, European Committee of Social Rights.
The Committee of Ministers is the Council of Europe’s statutory decision making body. It is made up of the Ministers for Foreign Affairs of Member States. Its role and functions are governed by the Statute of the Council of Europe.
Additional Information
For more information on the European Committee of Social Rights or the European Human Rights System, visit IJRC’s Online Resource Hub.