Republic of Poland
Intervention of Mr Radosław Mleczko
Undersecretary of State, Ministry of Labour and Social Policy
High-level Conference on the European Social Charter
Torino, October 17, 2014
Dear Secretary General, Commissioner, Ministers, all the distinguished guests, ladies and gentlemen.
First of all I would like to thank you for inviting me to take part in discussion on this crucial issue.
I would also like to emphasize the achievements of Council of Europe in the field of human rights, including social rights, as well as building social cohesion. Within the achievements, the European Social Charter has a special place – it is a unique document because of the scope and method of regulations, as well as the monitoring of its implementation.
Polish social policy is inspired by various international instruments, Charter among them . Its provisions were the impetus to the amendments of Polish law. We are considering further modifications, in order to solve certain problems related to the implementation of the document.
The economic crisis and the austerity measures define the contemporary context of the implementation of social rights and, more broadly, social policy. Rights, protective measures are defined anew, sometimes even they are significantly reduced. It is justified by the need to provide sustainable budgets, and create better conditions for economic activity.
The way out of the economic and social crisis chosen by the states tend to be questioned. It is said that the economic crisis does not justify departing from the protection guaranteed by the Charter. You will also hear that the deteriorating living conditions and lack of stability in the labour market impose the requirement to strengthen the protection standards.
Such assessments seem to be confirmed by the increasing number of cases in recent years of negative evaluation of the performance of the European Social Charter. Does Europe really departed from/ abandoned fundamental values in the social area? Do you need to announce the need to return to them?
No. Social policy and social rights in Europe are still deeply rooted in such values as solidarity, non-discrimination and participation. The societies and conditions changed, particularly economic environment in which they operate.
What is the change?
Europe moves away from the current formula of social rights protection. States are not able to guarantee complex, in terms of subjective and objective scope, rights. They rather provide the incentives for professional activation, and increasing the adaptability of workers, introduce flexible labour law regulations, reform social protection systems. States forgo "the approach based on the guarantees of rights" ("Rights based approach") in favour of "an approach based on meeting the actual needs" ("Needs based approach"). This means new social priorities, redefining the scope of individual and joint liability, new ways of acting in the social field.
The European Social Charter allows to specify the scope of the obligations and shape their content to meet, on the one hand, the legitimate and changing expectations of societies and, on the other hand, to face changing economic conditions in which these expectations are to be realized. Guarantees of such Charter implementation are also provided by a complex control system. The Charter has therefore the potential to play a significant role - to support the state in making decisions that reconcile economic efficiency and social sensitivity, determine the execution of such values as solidarity, active society and decent state.
The Charter was created for such situations like this crisis. However, today the States - including Poland - have doubts about whether the Charter is moving in the right direction.
There is no doubt that you cannot violate fundamental acquis in the social field. Other standards are the subject of difficult political decisions taken in the democratic procedure. You have to talk about it, but it cannot be questioned.
Hence the subject of dialogue between states and the Charters' monitoring authorities must be based on the idea of how to reconcile the protection of the rights and guarantees with social and economic realities. So far in the discussion we did not go beyond the question, whether in time of continuous economic difficulties which lead to rethinking the social system/building a new one, it is realistic to expect full compliance with protection standards, established in other realities.
If this point of the discussion is not exceeded, the Charter may stop providing guidance for state’s actions in the near future. Poland cannot allow that to happen.
Evaluation of state actions is a difficult and complex task.
It must be based on the analysis of the rationality of decisions. You have to look at the goals and conditions that lie behind - especially in the long term. This is the base for assessing the adequacy of the decision and whether the limitation of rights is in the minimal necessary scope. Specific solutions must also be seen in a bigger picture - as a part of a comprehensive state action in the social field. These are the conditions for a balanced assessment of the elements of national social policy.
We should take into account of the experience of other international control bodies, such as the Court of Human Rights, whose position on the legitimate public interest and the principle of proportionality, including on issues related to the social field, is widely recognized best practice.
The Charter is not the only standard binding European countries – Europe Union has two agendas for social rights. Thus, the same actions can be assessed by the Council of Europe and the EU. Why does it happen that the evaluation of the same actions may be so fundamentally different? Obviously some criteria can be valued differently. However, the basic ideals and principles are common - which is reflected by the fact that the European Social Charter is the basis for the Charter of Fundamental Rights of the EU. This should be inspiration for reflection on the mode and method of assessment of state actions.
These guidelines place the high expectations on evaluators of state actions. On the other hand, the evaluators must have reliable sources. Expectations should therefore be equally directed at both parties - countries and control bodies.
Ratings without these elements undermine the credibility of the evaluation. Unfortunately, we now have to deal with situations like this.
Demand to carry out such a complex evaluation of state actions has its source in the performance of the control system of the Charter. It consists of three bodies, and their actions are complementary.
All components of the system: legal evaluation, assessment from social and economic point of view, and finally political assessment, are equally important. None of these elements can function in isolation from the others. Only together they can show what is actually happening in the country.
Nowadays, it often happens that partial evaluation is treated as final. Effect for the Charter is unambiguously negative - more and more questions are asked what and how it is evaluated.
We also draw attention to a necessary element such as cooperation between the States and experts committee as well as cooperation between the regulatory bodies of the Charter. Dialogue should definitely be strengthened. It can only bring improvements in the quality and credibility of all parties involved in the implementation of the Charter.
The dialogue should also be applicable to the interpretation of the Charter.
Its provisions give countries a margin of freedom as to the specific objectives and solutions. The Charter does not treat these ideals as immutable; range of specific commitments for the states is changing.
The way the Charter currently operates rises the question whether these rules are followed.
Nowadays there is a strong trend to confirm the existing standards and define new ones, more detailed and severe. It is suggested to strengthen the control mechanisms of their execution. It is supposed to be a response to the voices of serious human rights violations being a result of decisions aiming at long-term stability of social protection systems or to facilitate entrepreneurship. Such voices are listened to on the international level.
However, at the same time, questions arise whether their implementation is real? What will be their long-term effects? Finally - is there sufficient legitimacy to create such standards - that is, the actual lawmaking and formulating directions for state actions on the national level?
It should also be underlined: in the discussion concerning standards there is no room for freedom of interpretation, the provisions of the Charter draw the limits. There are also commonly accepted rules of interpretation of international agreements and established competence in this field by the treaties.
The presented comments regarding applying and evaluation of the implementation of the Charter indicate the need for a systematic analysis of the impact of social and economic policy, and financial instruments on social rights. The implementation of these rights, as any other, depends on the capabilities of the state.
These activities should involve civil society. But foremost the participation of national institutions for protection of human rights is necessary.
Poland aims to have at effectively functioning Charter, reflecting the aspirations of societies and the realities of social and economic life.
It is our duty to protect and enhance the positive role of the European Social Charter as a source of guarantees the implementation of which may contribute to the reduction of economic and social tensions and to build a broad consensus around social policy.