Ministers’ Deputies

Notes on the Agenda

CM/Notes/1015/4.2c                  21 December 2007[1]

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1015 Meeting, 16 January 2008
4 Human Rights

4.2 European Social Charter

c. Collective Complaint No. 35/2006 by the Federation of Finnish Enterprises v. Finland

Reference documents
Report from the European Committee of Social Rights to the Committee of Ministers

(document distributed by the Chair of the Deputies)

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Action To adopt the appended draft Resolution.

1.         In application of Article 7 of the Protocol providing for a system of collective complaints, the European Committee of Social Rights transmitted to the Committee of Ministers, on 26 October 2007, its report on complaint No. 35/2006, Federation of Finnish Enterprises v. Finland, containing its decision on the merits of the complaint.

2.         By letter of 29 October 2007, the Chair of the Deputies transmitted the report of the European Committee of Social Rights to the representatives of the Contracting Parties to the Charter and the Revised Charter.

3.         Appendix I of these Notes contains information on the collective complaints procedure.

4.         The complainant organisation, the Federation of Finnish Enterprises, is a national organisation of employers’ organisations within the jurisdiction of Finland.

5.         The complainant alleged that the situation in Finland is in violation of Article 5 of the Revised Charter

6.         In its decision, the European Committee of Social Rights concluded:

by 11 votes to 1 that there has been no violation of Article 5 of the Revised Charter:

“the complainant organisation claims that the difference in treatment provided for by the Finnish legislation amounts to a violation of Article 5 as in order to benefit from the right to derogate from national legislation through collective agreements at the local level they have no other choice than to become a member of an employer organisation.

In order to determine whether the rules relating to the effects of collective agreements are compatible with Article 5 of the Charter it is essential to interpret the provisions of Article 5 taking into account Article 6 of the Charter. It follows from this that it is legitimate in principle that the legal rules applicable to working conditions be the result of collective bargaining. Such a system implies that employers may be treated differently depending on whether or not they are members of an organisation.

Such a conclusion may of course lead to an incompatibility with Article 5 but only if it were to affect the very substance of the freedom of association (see judgment of the European Court of Human Rights in Gustafsson v. Sweden of 25 April 1998).

The complainant organisation has not however demonstrated nor does the Committee find that the impugned provisions  are in conflict with the substance of the freedom of association nor has it been demonstrated that this freedom is affected in a manner that is more serious than what is necessary for the effectiveness and coherence of a system of collective bargaining”.

7.         It is recalled that in previous collective complaints where the European Committee of Social Rights found the situation to be in conformity with the Charter, the Committee of Ministers has adopted a resolution.

8.         The Deputies are invited to adopt the attached draft resolution.

Financing assured: YES

DRAFT DECISION

1015th meeting – 16 January 2008

Item 4.2c

European Social Charter

c.         Collective Complaint No. 35/2006 by the Federation of Finnish Enterprises v. Finland

(Report from the European Committee of Social Rights to the Committee of Ministers)

Decision

In conformity with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints, the Deputies in their composition restricted to the Representatives of the Contracting Parties to the European Social Charter or to the Revised European Social Charter in the Committee of Ministers,[2] adopted Resolution No. CM/ResChS(2008)… as it appears in Appendix …to the present volume of Decisions. <see Appendix II to the present Notes>

Appendix I

States participating in the procedure

1.         Under the terms of the Protocol, only those states having ratified the European Social Charter are qualified to participate in this procedure. In the circumstances, the term “Social Charter” should be interpreted as the 1961 Charter or the 1996 Revised Charter. The following States would therefore be concerned (as of 1 January 2008): Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Norway, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United Kingdom.

Procedure

2.         According to Article 9 of the Protocol:

“1. On the basis of the report of the [European Committee of Social Rights], the Committee of Ministers shall adopt a resolution by a majority of those voting. If the [European Committee of Social Rights] finds that the Charter has not been applied in a satisfactory manner, the Committee of Ministers shall adopt, by a majority of two-thirds of those voting, a recommendation addressed to the Contracting Party concerned. In both cases, entitlement to voting shall be limited to the Contracting Parties to the Charter.

2. At the request of the Contracting Party concerned, the Committee of Ministers may decide, where the report of the [European Committee of Social Rights] raises new issues, by a two-thirds majority of the Contracting Parties to the Charter, to consult the Governmental Committee”.

3.         It follows from this provision that the collective complaints procedure ends by the adoption of a resolution.

4.         However, in the case where non-satisfactory application of the Charter has been found, the Committee of Ministers may adopt a recommendation by a majority of two-thirds of those voting. The aim is to recommend to the state concerned the measures to be taken with a view to bringing the situation into conformity with the Charter.

5.         In accordance with Article 10 of the Protocol, the European Committee of Social Rights shall examine the situation again within the framework of the reporting system. The Contracting Parties shall, in their next reports, provide information on the measures taken to give effect to the Committee of Ministers’ recommendation.

Appendix II

Resolution CM/ResChS(2008)…

Complaint No. 35/2006

by the Federation of Finnish Enterprises against Finland

(Adopted by the Committee of Ministers on … 2008

at the .. meeting of the Ministers' Deputies)

The Committee of Ministers,^[3]

Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints;

Taking into consideration the complaint lodged on 19 June 2006 by the Federation of Finnish Enterprises v. Finland;

Having regard to the report transmitted by the European Committee of Social Rights, in which this body concluded by 11 votes to 1 that there is no violation of Article 5 of the Revised Charter,

Takes note of the report.