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Relatórios apresentados no quadro do Conselho
da Europa e Decisões do Comité de Ministros
sobre a Aplicação da Carta Social Europeia
REPORT
Introduction
1. In accordance with Article 8 para.
2 of the Protocol providing for a system of collective complaints,
the European Committee of Social Rights, committee of independent
experts of the European Social Charter (hereafter referred
to as "the Committee") transmits to the Committee
of Ministers its report in respect of complaint No. 5/1999.
The report contains the decision of the Committee on the merits
of the complaint (adopted on 4 December 2000). The decision
as to admissibility (adopted on 10 February 2000) is appended.
2. The Protocol entered into force on
1 July 1998 and has been ratified by Cyprus, Finland, France,
Greece, Italy, Norway, Portugal and Sweden. Bulgaria, Ireland
and Slovenia are also bound by this procedure, in accordance
with Article D of the revised European Social Charter of 1996.
3. When examining this complaint, the
Committee followed the procedure laid down in the Rules of
Procedure adopted on 9 September 1999.
4. It is recalled that in accordance
with Article 8 para. 2 of the Protocol, the present report
will not be published until the Committee of Ministers adopts
a resolution or, at the latest, four months after its transmission
to the Committee of Ministers on 12 April 2001.
DECISION ON THE MERITS
COMPLAINT No. 5/1999
By the European Federation of Employees in Public Services
against Portugal
The European Committee of Social Rights,
ECSR, committee of independent experts established under Article
25 of the European Social Charter (hereafter referred to as
"the Committee"), during its 174th session, composed
of:
Messrs. Matti MIKKOLA, President Rolf
BIRK,
Vice- President Stein EVJU,
Vice-President Ms Suzanne GRÉVISSE, General Rapporteur
Mr Konrad GRILLBERGER Ms Micheline JAMOULLE
Messrs. Nikitas ALIPRANTIS
Tekin AKILLIOGLU
Assisted by Mr Régis Brillat, Executive
Secretary to the European Social Charter;
In the presence of Ms Anna-Juliette Pouyat, observer of the
International Labour Organisation;
In the absence of Mr Alfredo Bruto da Costa who, having been
prevented from participating in the hearing and the deliberations
held on 9 October 2000, did not participate in the adoption
of the decision;
On the basis of the oral hearing held on 9 October 2000;
After having deliberated on 9 October and 4 December 2000;
On the basis of its deliberations;
Delivers the following decision adopted on 4 December 2000:
PROCEDURE
1. On 10 February 2000, the Committee
declared the complaint admissible.
2. In accordance with Article 7 paras.
1 and 2 of the Protocol providing for a system of collective
complaints and with the Committee's decision of 10 February
2000 on the admissibility of the complaint, the Executive
Secretary to the European Social Charter communicated, on
17 February 2000, the text of the admissibility decision to
the Portuguese Government and to the European Federation of
Employees in Public Services, the complainant organisation
(hereafter referred to as EUROFEDOP). On 18 February 2000,
he communicated the text of the decision to the Contracting
Parties to the Protocol, as well as to the European Trade
Union Confederation (ETUC), to the Union of Industrial and
Employers' Confederations of Europe (UNICE) and to the International
Organisation of Employers (IOE), inviting them to submit their
observations on the merits of the complaint. The Executive
Secretary also communicated the text of the decision to the
Contracting Parties to the Charter and the revised Charter
for their information.
3. The Portuguese Government submitted
its observations on the merits on 29 March 2000. The ETUC
submitted observations on 26 April 2000. EUROPFEDOP submitted
its observations on the merits on 15 May 2000. The Portuguese
Government submitted supplementary observations on 25 July
2000.
4. In accordance with Article 7 para.
3 of the Protocol, each party received the information and
supplementary observations of the other.
5. In accordance with Article 7 para.
4 of the Protocol and Rule 29 para. 1 of its Rules of Procedure,
the Committee decided on 24 May 2000 to organise a hearing.
For the purpose of the hearing the complaint was combined
with complaints Nos. 2 and 4/1999, EUROFEDOP against France
and Italy, respectively. The ETUC was invited to the hearing
in accordance with Rule 29 para. 2 of the Committee's Rules
of Procedure.
6. Additional written observations were
requested from the parties in preparation of the hearing.
EUROFEDOP submitted such observations on 28 August 2000.
7. The hearing took place in public in
the Human Rights Building, Strasbourg, on 9 October 2000.
At the hearing the complainant organisation, EUROFEDOP, was
represented by:
Mr Bert Van Caelenberg, Secretary General;
Mr Ludo Vekemans, Project Manager;
Mr Pim Gooijers, Chairman of the Trade Council Defence.
The ETUC, acting in support of the complainant, was represented
by:
Mr Gérard Fonteneau, legal advisor;
Mr Ulrich Hundt, Secretary General, EUROMIL;
Mr Stefan Clauwaert, legal advisor.
The respondent Government, the Portuguese Government, was
represented by:
Ms Cristina Siza Viera, Director of Legal Affairs at the Ministry
of National Defence;
Ms Ana Mendes Godinho, legal advisor, Directorate of Legal
Affairs of the Ministry of National Defence ;
Ms Cristina Coelho, Professor, Faculty of Law of the University
of Lisbon.
The French Government was represented by:
Mr Pierre Boussaroque, Judge seconded to the Directorate of
Legal Affairs of the Ministry of Foreign Affairs.
The Italian Government was represented by:
Mr Antonio Caracciolo, Inspector General, Ministry of Labour
and Social Security;
Mr Raffaello Di Cuonzo, Ministry of Defence;
Colonel Vittorio Manconi.
SUBSTANCE OF THE COMPLAINT
8. EUROFEDOP alleges that Portugal does
not comply with Articles 5 and 6 of the European Social Charter
in so far as members of the armed forces do not enjoy the
right to organise and as it follows that there is no right
to bargain collectively. Articles 5 and 6 read as follows:
Part II. Article 5 - The
right to organise
With a view to ensuring or promoting
the freedom of workers and employers to form local, national
or international organisations for the protection
of their economic and social interests and to join those organisations,
the Contracting Parties undertake that national law shall
not be such as to impair, nor shall it be so applied as to
impair, this freedom. The extent to which the guarantees provided
for in this article shall apply to the police shall be determined
by national laws or regulations. The principle governing
the application to the members of the armed forces of these
guarantees and the extent to which they shall apply to persons
in this category shall equally be determined by national laws
or regulations.
Article 6 - The right to
bargain collectively
With a view to ensuring the
effective exercise of the right to bargain collectively, the
Contracting Parties undertake:
1. to promote joint consultation between
workers and employers;
2. to promote, where necessary and appropriate,
machinery for voluntary negotiations between employers or
employers' organisations and workers' organisations, with
a view to the regulation of terms and conditions of employment
by means of collective agreements;
3. to promote the establishment and use
of appropriate machinery for conciliation and voluntary arbitration
for the settlement of labour disputes;
and recognise:
4. the right of workers and employers
to collective action in cases of conflicts of interest, including
the right to strike, subject to obligations that might arise
out of collective agreements previously entered into."
SUBMISSIONS OF THE PARTICIPANTS IN THE
PROCEDURE
a) The complainant organisation, EUROFEDOP
9. In its initial complaint and in subsequent
written observations, EUROFEDOP alleged that in practice,
the situation of civilian members of the Ministry of Defence
in Portugal is not in conformity with the above mentioned
provisions of the Charter. However, this part of the complaint
was not maintained. At the hearing, EUROFEDOP conceded that
domestic law grants civilian personnel all rights required
pursuant to Articles 5 and 6 of the Charter. The complainant
organisation alleged that there is a lack of clarity in defining
civilian as opposed to military tasks and appealed to the
respondent government to alleviate this.
10. EUROFEDOP maintains its complaint
as regards members of the armed forces in Portugal. The complaint
is based on Section 270 of the Constitution and the Act on
National Defence (Act No. 29/82 of 11 December 1982) which
prohibit military personnel of the armed forces and of the
"Guarda Nacional Republicana" from joining a trade
union but allows them to affiliate only to professional associations
which must be concerned solely with the professional code
of ethics.
11. EUROFEDOP alleges that it is a contradiction
in terms to say that military personnel takes part in collective
bargaining. In EUROFEDOP's view, the basic right to collective
bargaining is respected only if bargaining can be exercised
by trade unions as holders of this right. It asserts that
Article 6 of the Charter cannot in effect be complied with
if Article 5 is not applied in the first place.
12. EUROFEDOP emphasises that other States,
notably in Northern Europe, have granted the right to organise
to members of the armed forces. It considers that the absence
of a right to organise in several States, including Portugal,
is particularly unjustifiable in view of both the domestic
and the international context. In many States the armed forces
have been restructured in order to abolish compulsory military
service and aiming to establish an army composed exclusively
of professionals, civilian and military. At the international
level the tasks assigned to the armed forces have changed
and now include peace-keeping and humanitarian operations.
They are based on co-operation between European States within
the framework of a policy on peace and security. EUROFEDOP
asserts that, in this context it seems unacceptable that employees
of the armed forces of some countries do not enjoy the same
trade union rights as their colleagues from other countries.
13. EUROFEDOP asserts that, like the European
Convention on Human Rights, the European Social Charter is
a "living instrument" which should be interpreted
in the light of present realities. As a consequence, EUROFEDOP
submits that a modification of Articles 5 and 6 is required
and requests that amendments to include armed forces be initiated
by the Council of Europe and by the governments of the countries
concerned. According to EUROFEDOP, such amendments would allow
for a universal interpretation of fundamental rights in the
armed forces.
b) The European Trade Union Confederation
(ETUC)
14. The ETUC, referring to the fundamental
nature of Articles 5 and 6 of the Charter and to the regulation
of the various points at issue in the complaint in other international
instruments and in case law developed under those instruments,
submits that the term "members of the armed forces"
in Article 5 should be interpreted in a restrictive and functional
way. If thus construed, this would imply that military personnel
with more technical tasks must be accorded the right to organise.
15. With respect to Article 6, the ETUC
asserts that if the Committee would apply such a construction
of Article 5, the categories of personnel excluded from the
right to organise in Portugal are in fact too broadly defined
and, pursuant to the Committee's case law, the resulting infringement
of Article 5 automatically entails a violation of Article
6 para. 2.
16. Alternatively, the ETUC submits that
there is no restriction ratione personae in Article 6 and
hence, the right to collective bargaining must in some way
be guaranteed to all workers, including members of the armed
forces.
17. At the hearing, the ETUC requested
the Committee to undertake a study on the right to organise
of military personnel in Europe together with the ILO with
a view to harmonisation of legislation in the Contracting
Parties. It also invited the Committee to hold an exchange
of views on the subject with governments, with management
and labour and other interested bodies.
c) The Portuguese Government
18. The Portuguese Government alleges
that the complaint introduced by EUROFEDOP does not give grounds
for finding a violation of Articles 5 and 6 of the Charter.
19. It underlines that Article 5 of the
Charter recognises the freedom of states to determine the
principle as well as the extent of the application of the
guarantees contained therein to the members of the armed forces.
The suppression of trade union rights is thus authorised by
Article 5 of the Charter, which is not contested by the complainant
organisation. In addition, the Portuguese Government points
out that this interpretation has been confirmed by the case
law of the European Committee of Social Rights and that it
was not challenged during the process of revision of the Charter
and the adoption of the revised Charter.
20. In addition, the Portuguese Government
considers that the complaint under Article 6 should be dismissed
as this provision has no autonomy from Article 5, the right
to bargain collectively being invested in trade unions and
not being an individual and subjective right of workers.
21. According to the Portuguese Government,
the complaint raises a question of principle and has as its
objective a revision of the articles concerned. It considers,
however, that the European Committee of Social Rights is not
competent to address a matter of this nature.
22. As regards the functional approach
to the armed forces invoked by the complainant organisation
and the ETUC, the Government rejects such an interpretation.
In its view, the duties inherent in military status do not
differ according to the task in question.
ASSESSMENT OF THE COMMITTEE
23. The Committee, by way of introduction,
notes that as the case now stands, it is not in dispute that
for civilian personnel in the defence sector the situation
in Portugal is compatible with Articles 5 and 6 of the Charter.
While taking note of the submissions of EUROFEDOP and the
ETUC as to the delineation of the concept "members of
the armed forces" in Article 5 of the Charter, the Committee
notes that in the present proceedings no concrete submissions
have been made, nor has any evidence been presented, in respect
of any particular group or category of workers which in the
view of the complainant or the ETUC should be deemed not to
fall within the scope of the exception clause in Article 5.
Hence, there are no grounds for the Committee to elaborate
on this point in the present case.
24. The point at issue in the present
complaint concerns, firstly, the construction of the exception
clause in the final sentence of Article 5 as regards military
personnel. The Committee recalls that according to this provision,
"[t]he principle governing the application to the members
of the armed forces of" the guarantees set out in Article
5 "and the extent to which they shall apply to persons
in this category shall […] be determined by national
laws and regulations".
25. The Committee notes that the complainant
organisation, on the one hand, alleges that there is a violation
of Articles 5 and 6 of the Charter as military personnel employed
by the armed forces in Portugal - and in the other states
against which complaints have been lodged - do not enjoy the
right to organise and bargain collectively, while on the other
hand, the complainant holds that amendment of Articles 5 and
6 is requisite with a view to the safeguarding of rights for
this category of personnel and that reform for that purpose
should be initiated by the Council of Europe and by the governments
concerned.
26. As the Committee has consistently
held, it follows from the wording of the final sentence of
Article 5 of the European Social Charter of 1961 that states
are permitted to "limit in any way and even to suppress
entirely the freedom to organise of the armed forces"
(Conclusions I, p. 31). The Committee observes that the provision
in question has been included unchanged in the revised European
Social Charter of 1996.
27. The Committee considers that no argument
has been brought forward by EUROFEDOP, nor by the ETUC, of
a nature giving grounds for a change in the interpretation
of Article 5. The Committee underlines that the well-established
interpretation of Article 5 is based on the wording of the
provision. Further, as to EUROFEDOP's submission that this
interpretation should be modified as the tasks assigned to
the armed forces now include peace-keeping and humanitarian
operations and are based on co-operation between European
States, the Committee points out that co-operation between
the armed forces of the Contracting Parties to the Charter,
or some of them, in no way is a new phenomenon.
28. Secondly, the Committee takes note
of EUROFEDOP's submission that the basic right to collective
bargaining is respected only if bargaining can be exercised
by trade unions as holders of this right, and of the ETUC's
assertion that there is no restriction ratione personae in
Article 6 and that, consequently, the right to collective
bargaining must in some way be guaranteed to all workers,
including members of the armed forces.
29. While recognising that provisions
in Article 6 of the Charter may be held to have application
also in respect of workers excluded from the scope of Article
5, the Committee considers that these are issues which in
the context of a collective complaint cannot be assessed in
the abstract. The issues to which the relationship between
Article 5 and Article 6 may give rise need to be considered
on a concrete, case-by-case basis. The Committee is obliged
to note, however, that the complainant organisation's submissions
on this point have not been specified or elaborated on, nor
is there evidence at hand in the present case to substantiate
the submissions. In view of this, and without prejudice to
any subsequent assessment of issues concerning the relationship
between Articles 5 and 6 of the Charter, the Committee, in
the context of the present complaint, does not find grounds
for holding that there is a violation of Article 6.
30. Finally, with regard to the request
made by EUROFEDOP that Articles 5 and 6 be amended; the Committee
is obliged to note that this is a matter beyond the scope
of its competence in the present context. The role of the
Committee as defined in the 1995 Protocol providing for a
system of collective complaints is, solely, to assess whether
the Contracting Party concerned by a complaint "has ensured
the satisfactory application of the provision of the Charter
referred to in the complaint" (Article 8 of the Protocol).
Having regard to this, the Committee considers that it would
be inappropriate in the present context to express itself
on EUROFEDOP's request and, similarly, on the ETUC's proposal
to undertake a study of the said provisions together with
the ILO.
31. On the above grounds, the Committee
has reached the following:
CONCLUSION
The complaint lodged by EUROFEDOP against
Portugal is dismissed.
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