European Labour Law Lecture 02A

First European document on this item and until now is the main protection for human rights in Europe because - Its wide scope (all MS CoE = ca. 50 countries) - Forceful supervising mechanism (ECtHR) - All MS recognised right of individual complaint 2.1. The European Convention on Human Rights 1

ECtHR - judges whether there is a violation of the Convention - may award financial compensation to injured party. ECtHR can only be seized - If the alleged violation has been committed by a public authority - If the applicant has exhausted all domestic remedies. ECtHR is now flooded with cases: are waiting judgement. CoE is now studying measures The European Convention on Human Rights 2

ECHR contains primarily civil/political rights, not the social rights (for those the European Social Charter has been made). Nevertheless it has relevance for labour. 2 provisions especially have a labour law flavour Art. 4 – prohibition of slavery and forced labour Art. 11 – freedom of trade union association Several provisions have collateral interest for labour law Art. 6 – Fair trial Art. 8 – Right to privacy and family life Art. 9 – Religious freedom Art. 10 Freedom of expression Protocol 1 – Right to property Art Protocol 12 – Non discrimination 2.1. The European Convention on Human Rights 3

Prohibition of slavery and forced labour (Art. 4) Not particularly actual since slavery had disappeared from Europe (1945). However some phenomenons may be qualified as forced labour - Sanctions against unemployed receivers of social security benefits refusing to accept work (rejected in 1983 in Van der Mussele case; new Dutch case pending) - Prostitution? 2.1. The European Convention on Human Rights 4

Freedom of trade union association (Art. 11) In the narrow sense of this concept: Decades of ECtHR case law - Are employers’ organisations covered? And organisations of independent persons? And a works councils? - May trade unions refuse the entrance of members? - May trade union membership be prohibited incidentally - May a trade union be refused legal parsonality? - Is there a right not to be member of a trade union? - How far are workers protected against anti-trade union behaviour (Danilenkov) 2.1. The European Convention on Human Rights 5

Freedom of trade union association (Art. 11) in the broader sense of the concept (including the right to collective bargaining and the right to strike) Rejected by the ECtHR in its 1970s case law Recognised by the Court in recent case law - Demir (right to collective bargaining) - Enerji (right to strike) 2.1. The European Convention on Human Rights 6

Fair Trial Already applied in a Dutch case to certain aspects of the procedure before social security tribunals 2.1. The European Convention on Human Rights 7

Privacy and Family Life (Art. 8) Already applied on - a UK case about employment discrimination of homosexuals - a Lithuanian case of a ban on applications for public sector and various private sector posts - a UK case on the collection and storage of personal information in the employment relationship through the use of telephone, and internet The European Convention on Human Rights 8

Religious freedom (Art. 9) - Already applied on a case about the right to take leave on an Islamic feastday. - Now pending a British case on the right of workers to wear a religious symbole at work - Interesting also two German cases in which the employer (religious organisation) invoked this right in order to justify the dismissal of apostate employees 2.1. The European Convention on Human Rights 9

Freedom of expression (Art. 10) A very recent case on the dismissal of unionised workers on account of a vulgar cartoon in their trade union publication (Paloma) 2.1. The European Convention on Human Rights 10

Right to property (First protocol) The Court recognised certain pension rights as property. In the Netherlands this is highly actual now that the government plans to reduce the rights of future pensioners The European Convention on Human Rights 11

Non discrimination (Art th Protocol) - In the past this right had only a limited relevance, prohibiting only discriminations with regard to the “enjoyment on the rights and freedoms set forth in the ECHR”. - Now there is the 12th Protocol providing that no one shall be discriminated against by any public authority on any ground of seks, race, colour, language, religion etc. - Until now of little relevance as the MS are slow to ratify this Protocol 2.1. The European Convention on Human Rights 12

Many of these developments have been made possible by - the philosophy of the Court to apply the ECHR as a “living instrument” - the methodology of the Court to take into account for the interpretation of the ECHR other international standards and opinions of other supervisory bodies. All these developments are often applauded by human rights adepts, but they have also often angered other lawyers and certain political and social forces. This has now caused much debate about the role that the ECtHR should play, notably in the UK The European Convention on Human Rights 13