Ministers’ Deputies
Notes on the Agenda

CM/Notes/956/4.3 3 February 20061
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956th Meeting, 15 February 2006
4 Human Rights


4.3 European Social Charter

Collective complaint No. 24/2004 by SUD Travail Affaires sociales against France

Reference document
Report from the European Committee of Social Rights to the Committee of Ministers

(secret document distributed by the Chair of the Deputies)
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Action

To examine the follow-up to the report of the European Committee of Social Rights in Collective Complaint No. 24/2004, SUD Travail Affaires sociales v. France.

1. In application of Article 7 of the Protocol providing for a system of collective complaints, the European Committee of Social Rights transmitted to the Committee of Ministers on 20 November 2005 its report on complaint No. 24/2004, SUD Travail Affaires sociales v. France, containing its decision on the merits of the complaint.

2. On 20 November 2005, the Chair of the Deputies transmitted the report of the European Committee of Social Rights to the representatives of the Contracting Parties to the Charter and the Revised Charter.

3. Appendix I of these Notes contains information on the collective complaints procedure.

4. The complainant organisation, SUD Travail Affaires sociales, is a French national trade union.

5. The complainant alleged that the situation in France is in violation of Article 1§2 of the revised Charter

i) because certain categories of private sector employees are excluded from the protection of Article L.122-45 of the Labour Code prohibiting discrimination and alleviating the burden of proof, and
ii) because civil servants (fonctionnaires), non permanent public servants (agents publics non-titulaires) and employees of the National Employment Agency (ANPE), are not adequately protected against discrimination by the statutes governing their employment, in particular in relation to the alleviation of the burden of proof.

6. In its decision, the European Committee of Social Rights concluded

i) unanimously that there was no violation of Article 1§2 of the revised Charter as regards the prohibition of discrimination, including alleviation of the burden of proof, for certain categories of private sector employees;

ii) unanimously that there was no violation of Article 1§2 of the revised Charter as regards the prohibition of discrimination for non permanent public servants and ANPE employees;

iii) by 8 votes to 3 that there was a violation of Article 1§2 of the revised Charter as the alleviation of the burden of proof is not provided in respect of public employees.

7. It follows from the above that the European Committee of Social Rights found a violation on one ground of this collective complaint (item 6. iii), see the excerpt from the decision in Appendix II).

8. The procedural rule of alleviation of proof required under Article 1§2 of the revised Charter refers to the measures taken to ensure that when persons who consider themselves wronged, because the principle of equal treatment has not been applied to them, establish facts from which it may be presumed that there has been discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. The Committee recalled on the occasion of the present complaint that the purpose of this rule is to enable courts to deal with discrimination in the light of the effects produced by a rule, act, or practice. The alleviation of the burden of proof is therefore a crucial procedural rule from the point of view of effective application of the prohibition of discrimination. In its reasoning in relation to the finding of a violation on this point, the European Committee of Social Rights noted that while public employees were covered by a prohibition of discrimination, the alleviation of the burden of proof did not apply to them in respect of all the grounds of discrimination prohibited under the revised Charter.

10. It is recalled that in previous collective complaints where the European Committee of Social Rights found the situation not to be in conformity with the Charter, the Committee of Ministers has either adopted a recommendation to the state against which the complaint was lodged or adopted a resolution. The latter has usually been the case where the state concerned made a commitment to take specific measures to bring the situation into conformity with the Charter.
11. Accordingly, the Committee of Ministers could ask the French Delegation to indicate what measures the French authorities intend to take in order to bring the situation into conformity. On the basis of this information, the Deputies would then decide when and how they should consider the follow-up to this complaint.

Financing assured: YES

      DRAFT DECISION

956th meeting – 15 February 2006

Item 4.3

European Social Charter -
Collective complaint No. 24/2004 by SUD Travail Affaires sociales against France

(Report from the European Committee of Social Rights to the Committee of Ministers)

Decision

The Deputies instructed the Secretariat to prepare a draft text to be considered at one of their forthcoming meetings.

Appendix I

States participating in the procedure

1. Under the terms of the Protocol, only those states having ratified the Social Charter are qualified to participate in this procedure. In the circumstances, the term “Social Charter” should be interpreted as the 1961 Charter and the 1996 Revised Charter. The following States would therefore be concerned (as of 1 April 2005): Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey and the United Kingdom.

Procedure

2. According to Article 9 of the Protocol:

    “1. On the basis of the report of the [European Committee of Social Rights], the Committee of Ministers shall adopt a resolution by a majority of those voting. If the [European Committee of Social Rights] finds that the Charter has not been applied in a satisfactory manner, the Committee of Ministers shall adopt, by a majority of two-thirds of those voting, a recommendation addressed to the Contracting Party concerned. In both cases, entitlement to voting shall be limited to the Contracting Parties to the Charter.

    2. At the request of the Contracting Party concerned, the Committee of Ministers may decide, where the report of the [European Committee of Social Rights] raises new issues, by a two-thirds majority of the Contracting Parties to the Charter, to consult the Governmental Committee”.

3. It follows from this provision that the collective complaint procedure ends by the adoption of a resolution.

4. However, in the case where non-satisfactory application of the Charter has been found, the Committee of Ministers may adopt a recommendation by a majority of two-thirds of those voting. The aim is to recommend to the state concerned the measures to be taken with a view to bringing the situation into conformity with the Charter.

5. In accordance with Article 10 of the Protocol, the European Committee of Social Rights shall examine the situation again within the framework of the reporting system. The Contracting Parties shall, in their next reports, provide information on the measures taken to give effect to the Committee of Ministers’ recommendation.

Appendix II

Excerpt from the decision on the merits of the European Committee of Social Rights in Complaint No. 24/2004, SUD Travail Affaires sociales v. France

    “b) Burden of proof in respect of public employees

    33. The Committee notes that Section 6 of Act No. 83-634 prohibits discrimination in respect of civil servants but does not provide for an alleviation of the burden of proof. The Committee further notes that Act No. 2004-1486 introduces alleviation of the burden of proof in race discrimination cases for all employees, including those in the public sector and thus including also civil servants. However, as far as can be ascertained the statutory provisions on alleviation of the burden of proof do not extend to all the grounds of discrimination prohibited under the revised Charter.

    34. The Committee notes that from the point of view of effective application of rules on protection against discrimination the purpose of rules on alleviation of the burden of proof is to enable courts to deal with discrimination in the light of the effects produced by a rule, act, or practice. The Committee observes that it is the administrative courts that are the competent courts in discrimination cases involving civil servants, as well as public servants without tenure and employees of ANPE. It also observes that the administrative courts apply an “inquisitorial procedure” in which issues of burden of proof may present themselves differently from in adversarial litigation. However, the Committee is forced to note that it is unable to see that for the categories of employees concerned in the present context French law contains statutory provisions geared to guarantee the alleviation of the burden of proof consistent with the requirements of Article 1§2 of the revised Charter. The Government has adduced no evidence or submitted no reference to any statutory text or case law to show that the situation in law is in accordance with the obligations incumbent on it pursuant to Article 1§2.

    35. The Committee consequently considers that there is a violation of Article 1§2 of the revised Charter.”

Note 1 This document has been classified restricted at the date of issue. Unless the Committee of Ministers decides otherwise, it will be declassified according to the rules set up in Resolution Res(2001)6 on access to Council of Europe documents.


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