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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
DECISION ON ADMISSIBILITY, COMPLAINT No.
5/1999
From the European Federation of Employees in Public Services
Against Portugal
The European Committee of Social Rights,
committee of independent experts established under Article
25 of the European Social Charter (hereafter referred to as
"the Committee"), during its 168th session attended
by:
Messrs Matti MIKKOLA, President
Rolf BIRK, Vice-President
Stein EVJU, Vice-President
Ms Suzanne GREVISSE, General Rapporteur
Mr Alfredo BRUTO DA COSTA
Ms Micheline JAMOULLE
Messrs Nikitas ALIPRANTIS
Tekin AKILLIOGLU
Assisted by Mr Régis BRILLAT, Executive Secretary of
the European Social Charter
Having regard to the complaint registered
as number 5/1999, lodged on 13 August 1999 by the European
Federation of Employees in Public Services (hereafter referred
to as "EUROFEDOP") represented by its President,
Mr Guy Rausner and its Secretary General, Mr Bert Van Caelenberg,
requesting that the Committee find that Portugal fails to
apply in a satisfactory manner Articles 5 and 6 of the European
Social Charter;
Having regard to the documents appended
to the complaint;
Having regard to the observations submitted
on 6 and 13 December 1999 by the Portuguese Government represented
by Ms Cristina Siza Vieira, Director of the Legal Affairs
Department of the Ministry of National Defence;
Having regard to the European Social
Charter and in particular to Articles 5 and 6 which read as
follows:
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."
Having regard to the Additional Protocol
to the European Social Charter providing for a system of
collective complaints;
Having regard to the rules of procedure
adopted by the Committee on 9 September 1999 during its
163rd session;
After having deliberated on 10 February
2000;
Delivers the following decision, adopted
on the above date:
1. EUROFEDOP states that, according to
its statute, its objective is to defend and promote the economic
and social rights of employees in European public services
taking into account their specific rights and obligations.
2. It 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. 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. Moreover, it is alleged
that the situation of civil personnel in the armed forces
is not in practice in conformity with the same provisions
of the Charter. EUROFEDOP emphasises that 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. In this context
it seems unacceptable that employees of the armed forces would
not enjoy the same trade union rights as their colleagues
from other countries.
3. The Portuguese Government does not
in substance contest the conformity of the complaint with
the admissibility conditions laid down in Articles 1 b) and
3 of the Additional Protocol. It refers in this respect to
the control exercised by "the competent bodies".
4. However, the Portuguese Government
holds the view that the complaint is inadmissible as it does
not fulfil the conditions of Article 4 of the Protocol that
the complaint shall indicate the provisions of which violation
is alleged and in what respect the said provisions have not
been satisfactorily applied.
According to the Portuguese Government,
EUROFEDOP restricts itself to invoking violation of Articles
5 and 6. The government considers that the complaint is contradictory
since in reality a question of principle is at issue, namely
the harmonisation of national systems which are too differentiated.
It does not concern a violation by Portugal of Articles 5
and 6, because, as admitted by EUROFEDOP, Portugal may as
other States provide for restrictions on the right to organise
for the armed forces.
As regards the civilian personnel in
the armed forces, the complaint indicates neither the scope
nor the nature of the non-conformity.
On the basis of Article 4 of the Protocol
the Portuguese Government concludes that the complaint should
be declared inadmissible.
As to the conditions of admissibility
laid down by the Protocol and the rules of procedure of the
Committee
5. The Committee notes that, in accordance
with Article 4 of the Protocol, which was ratified by Portugal
on 20 March 1998 and which entered into force on 1 July 1998,
the complaint has been lodged in writing and relates to Articles
5 and 6, provisions accepted by Portugal on 6 August 1991
upon its ratification of the Charter.
6. It further notes that, in accordance
with Article 1 b) and Article 3 of the Protocol EUROFEDOP
is an international non-governmental organisation with consultative
status with the Council of Europe. It is included on the list,
compiled by the Governmental Committee, of international non-governmental
organisations which are entitled to lodge complaints.
7. In addition, as laid down by Rule
20 of the rules of procedure of the Committee, the complaint
lodged on behalf of EUROFEDOP is signed by its President and
its Secretary General who, according to the statute of the
organisation, are the persons empowered to represent it.
8. The Committee considers that this
organisation has lodged a complaint in a field in which it
has particular competence within the meaning of Article 3
of the Protocol.
As to the objections of inadmissibility
raised by the Portuguese Government
9. The Committee observes that the complaint
concerns violation of Articles 5 and 6 of the European Social
Charter. The alleged violation concerns norms of the Portuguese
legal system. The complaint aims expressly at the provision
of the Portuguese Constitution and the Act on National Defence
which are alleged to contravene two provisions of the Charter
by prohibiting military personnel of the armed forces and
the "Guarda Nacional Republicana" from organising,
except in respect of professional associations which are concerned
solely with the professional code of ethics.
10. The Committee thus considers that
Article 4 of the Protocol and its different conditions are
fulfilled and that the reasons given in the complaint, although
succinct, are sufficiently indicative of the extent to which
the Portuguese Government is alleged not to have ensured the
satisfactory application of the provisions concerned.
11. Consequently, the Committee considers
that the objections of inadmissibility raised by the Portuguese
Government cannot be sustained. It reserves the possibility
of examining the different arguments put forward as well as
the observations made by the Portuguese Government in so far
as they relate in substance to the case and in particular
to the interpretation of Article 5 of the Charter.
12. In the light of the information submitted
to it, the Committee does not consider it necessary to request
supplementary observations from EUROFEDOP.
13. For these reasons, the Committee,
on the basis of the report presented by Ms Micheline JAMOULLE,
and without prejudice to its decision on the merits of the
complaint,
DECLARES THE COMPLAINT ADMISSIBLE.
In application of Article 7 para. 1 of
the Protocol, requests the Executive Secretary to inform the
Contracting Parties to the Charter that the present complaint
is admissible.
Invites the Portuguese Government to submit in writing by
15 March 2000 all relevant explanations or information.
Invites the Contracting Parties to the
Protocol to communicate to it by the same date any observations
which they wish to submit.
Invites EUROFEDOP to submit in writing
by a deadline which it shall fix all relevant explanations
or information in response to the observations of the Portuguese
Government.
In application of Article 7 para. 2 of
the Protocol, requests the Executive Secretary to inform the
international organisations of employers or workers mentioned
in Article 27 para. 2 of the Charter and to invite them to
submit their observations by 15 March 2000.
Micheline JAMOULLE - Rapporteur
Matti MIKKOLA - President
Régis BRILLAT - Executive Secretary
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