3. In Europe
This Chapter analyses different existing mechanism to protect human rights in the European system.
First of all it will consider the Council of Europe, based in Strasbourg (France), which is composed of 47 Member States from the European continent, 27 of which are also Member States of the European Union. The Council of Europe was founded on 5 May 1949 by 10 states, with the aim to promote human rights, democracy and the rule of law, common principles stemming from the European Convention on Human Rights (ECHR), and other related international conventions.
The Council of Europe is composed of six main bodies. One of these is a judicial body, the European Court of Human Rights (ECtHR) based in Strasbourg, not to be confused with the European Court of Justice (ECJ). 1 Unlike many regional and international Human Rights mechanisms, the ECtHR is an international court with the authority to hear cases and issue binding judgements concerning alleged violations of the Convention. Another Human Rights mechanism within Europe’s jurisdiction is the european Committee of Social Rights, whose mission is to monitor the application of the european Social Charter, a Council of Europe treaty, its 1988 Additional Protocol and its 1996 revised version.
In addition to these bodies, the Commissioner for Human Rights, an independent non-judicial institution within the Council of Europe, plays an important role in the protection of Human Rights. This institution was set up in 1997. Although the Commissioner cannot act upon individual complaints, he can draw conclusions and take wider initiatives on the basis of reliable information regarding Human Rights violations suffered by individuals. In addition, the Commissioner is also able to conduct official country visits to evaluate the Human Rights situation. The Commissioner for Human Rights is also mandated to provide advice and information on the protection of Human Rights and the prevention of Human Rights violations. When the Commissioner considers it appropriate, he/she may adopt recommendations regarding Human Rights issues in one or several Member States. 2 The Commissioner closely cooperates with national Ombudsmen, National Human Rights Institutions and other structures entrusted to protect Human Rights, while also maintaining close working relations with the european Union’s Ombudsman. The Commissioner also has the right to intervene as a third party in the proceedings of the ECHR, either through taking part in the Court’s hearings or by submitting written information.
Furthermore, the Council of Europe provides protection of human rights through the European Code of Social Security and its Protocol as well as the Revised European Code of Social Security. The Code aims to encourage the development of social security in all the Contracting Parties of the Council of Europe, setting standards that Parties must include in their social security systems. The Code covers different areas such as sickness benefits, unemployment benefits, employment injury benefits, maternity benefits, etc, while the Protocols include provisions to achieve a higher level of social security. The Revised Code implements the original one. States that have ratified the Revised Code are supervised by a Commission of independent experts working within the Council of Europe’s framework. Moreover, the Parliamentary Assembly of the Council of Europe gives an opinion on States’ explanatory report on the implementation of the Code, which is previously sent to the most representative national organisations of employers and workers. This is a non-judicial mechanism.
Moving to the European Union, it provides mechanisms to protect and promote human rights, mainly by two sources : the general principles of law (Article 6, 3 TFEU) and the Charter of Fundamental Rights of the European Union (Article 6, 1 TEU). They both are European Union primary law and they have the same field of application (currently the European Union Court of Justice uses Article 51 of the Charter by analogy for general principles of law). It is possible to find other provisions referring to fundamental rights in the Treaties and in the European secondary law, such as the Recommendation 2013/396/UE 3 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law, which sought to facilitate access to justice and, to this scope, recommends a general mechanism for collective redress based on the same principles in all European Member States. Collective redress mechanisms increase access to justice, an essential element to ensure the effectiveness of European law and respect for fundamental rights, as established by Article 47 of the European Charter of Fundamental Rights. In 2017, the Commission launched the evaluation of the implementation of recommendation 2013/396/EU and several Member States have taken measures to implement it directly. However, legislation at national level still has clear divergences between Member States, creating different forms and levels of collective action. The recommendation defines collective redress as a tool for two or more natural or legal persons to join claims and pursue them collectively, or for an entity entitled to bring representative action. The purpose of this legal mechanism is to determine the cessation of illegal behavior (injunctive collective redress) or the compensation for damages (compensatory collective redress). The European Union Agency for Fundamental Rights (FRA) 4 proposes in its Fundamental Rights Report 2018 5 not to limit this tool to consumers.
Finally, it is important to mention the European Pillar of Social Rights, which has been jointly signed by the European Parliament, the Council and the Commission on 17 November 2017, pursuant the Treaties provisions based on the principles of sustainable growth and the promotion of economic and social progress as well as cohesion and convergences. The aim of the European Pillar of Social Rights is to deliver new and more effective rights for citizens. It consists of 3 chapters: Equal opportunities and access to the labor market, Fair working conditions, Social protection and inclusion. The European Pillar of Social Rights contains several principles that go substantially beyond the European Union Charter of Fundamental Rights. For these principles to be legally enforceable, the European Union and the Member States must adopt measures or legislation at the appropriate level within their respective competences, in accordance with the principles of subsidiarity and proportionality. In other words, the European Pillar of Social Right is not enforceable in the absence of implementing measures. The European Pillar of Social Rights establishes minimum standards which can be raised by the Member States and through a dialogue with the social partners. Principles included in the European Pillar of Social Rights concern Union citizens and third-country nationals with legal residence in the European Union. Under the European Pillar of Social Rights a worker is anybody in employment. 6
