¹ Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No 5. It is of course different where the EU is one of the negotiating parties in such treaties, such as the UN Convention on the Rights of Persons with Disabilities, 2515 UNTS 3 (UNCRPD). See art 42 UNCRPD, which allows ‘regional integration organizations’ in addition to States to ratify the Convention.

² European Social Charter, 18 October 1961, ETS No 35. The only notable exception is de Schutter, O, ‘Le rôle de la Charte Sociale Européenne dans le développement du droit de l’union européenne’ in de Schutter, O (ed), The European Social Charter: A Social Constitution for Europe (Brussels, Bruylant, 2010) 95 Google Scholar. Older work which addresses the issue includes Birk, R, ‘The European Social Charter and the European Union’ in Blanpain, R (ed), The Council of Europe and the Social Challenges of the XXIst Century (Deventer, Kluwer Law International, 2001) 41 Google Scholar; de Schutter, O, ‘Anchoring the European Union to the European Social Charter: The Case for Accession’ in de Búrca, G and de Witte, B (eds), Social Rights in Europe (Oxford, Oxford University Press, 2005) 111 CrossRefGoogle Scholar; and Churchill, R, ‘What Future for the European Social Charter with an Enlarged European Union and a Developing Union Economic and Social Rights Agenda?’ in Young, J, Priban, J and Kerner, A (eds), EU Law and National Legal Systems (Prague, Charles University, 2005) 66 Google Scholar. See also Alston, P and Weiler, J, ‘An “Ever Closer Union” in Need of a Human Rights Policy: The European Union and Human Rights’ in Alston, P, Bustelo, M and Heenan, J (eds), The EU and Human Rights (Oxford, Oxford University Press, 1999) 32 Google Scholar; Report of the Expert Group on Fundamental Rights, Affirming Fundamental Rights in the European Union. Time to Act (Luxembourg, European Communities, 1999) 21, which suggested that the EU accede to the Charter.

³ See, eg, European Union Statement delivered by Rafael de Bustamante, Delegation of the European Union to the United Nations, at the United Nations 67th General Assembly Third Committee, Items 69 (a, d): Promotion and Protection of Human Rights, 23 October 2012, where it was stated that: ‘The EU reaffirms its commitment to the promotion and protection of all human rights, whether civil and political, or economic, social and cultural.’ The Charter of Fundamental Rights of the European Union [2007] OJ C303/1 refers, albeit rather obliquely, to the indivisibility of human rights at para 2 of the preamble. A number of EU Member States, in particular, Poland and the United Kingdom, continue to stress the ‘different’ nature of economic and social rights as compared to civil and political rights. See further below and also the so-called ‘opt-outs’ to the EU Charter of Fundamental Rights, Protocol (No 30) on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom [2007] OJ C306/157. There is substantial uncertainty as to the exact nature of the ‘opt-out’. See Barnard, C ‘The ‘Opt-Out’ for the UK and Poland from the Charter of Fundamental Rights: Triumph of Rhetoric over Reality?’ in Griller, S and Ziller, J (eds), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (Vienna, Springer, 2008) 257 CrossRefGoogle Scholar; Craig, P, ‘The Charter, the ECJ and National Courts’ in Ashiaborgor, D, Countouris, N and Lianos, I (eds), The European Union After the Treaty of Lisbon (Cambridge, Cambridge University Press, 2012) 78, 84CrossRefGoogle Scholar; Piris, J, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 160 CrossRefGoogle Scholar; Dougan, M, ‘The Treaty of Lisbon: Winning Minds, Not Hearts’ (2008) 45 CML Rev 617, 665–71Google Scholar.

⁴ Additional Protocol to the European Social Charter, 5 May 1988, ETS No 128. There is a further Protocol Amending the European Social Charter, 21 October 1991, ETS No 142, (known as the Turin Protocol), which seeks to improve the Charter’s enforcement machinery. It has never entered into force, but with one exception, all the changes made by it have been implemented in practice. On this, see n 12 below.

⁵ European Social Charter (Revised), 3 May 1996, ETS No 163. The 1961 ESC and Revised Charter are independent of one another, with the latter designed to eventually replace the former. Reference to the European Social Charter (ESC) will be used to include both the 1961 Charter and 1996 Revised Social Charter. Distinctions will only be drawn where reference is being made to one treaty but not the other. For an overview of the history of the Charter see O de Schutter, ‘The Two Lives of the European Social Charter’ in de Schutter (n 2) 11.

⁶ Germany, Latvia, Luxembourg, Poland and United Kingdom.

⁷ Czech Republic, Croatia, Denmark, Greece and Spain.

⁸ For extensive, if now a little dated, discussion of the reporting system, see Harris, D and Darcy, J, The European Social Charter, 2nd edn (Ardsley, NY, Transnational Publishers, 2001) 293–354 Google Scholar.

⁹ Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, 9 November 1995, ETS No 158. For detailed, if now dated, discussion of the Protocol’s functioning and its implications, see Churchill, R and Khaliq, U, ‘The Collective Complaints System of the European Social Charter—An Effective Mechanism for Ensuring Compliance with Economic and Social Rights?’ (2004) 15 European Journal of International Law 417 CrossRefGoogle Scholar; and Churchill, R and Khaliq, U, ‘Violations of Economic, Social and Cultural Rights: The Current Use and Future Potential of the Collective Complaints Mechanism of the European Social Charter’ in McCorquodale, R and Baderin, M (eds), Economic, Social and Cultural Rights in Action: Essays in Honour of David Harris (Oxford, Oxford University Press, 2007) 195 CrossRefGoogle Scholar.

¹⁰ They are: Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Finland, France, Greece, Ireland, Italy, Netherlands, Portugal, Slovenia and Sweden. Bulgaria and Slovenia have become party to the CCP by a declaration made in application of art D(2) of pt IV of the RESC.

¹¹ See further Churchill and Khaliq, ‘The Collective Complaints System’ (n 9).

¹² The 1961 ESC as amended by the Turin Protocol refers to ‘at least nine members’ who are to be elected by the Parliamentary Assembly. This change has never been implemented and they are still elected by the Committee of Ministers. The number of members was changed from nine to 15 by a decision of the Committee of Ministers at the 751st meeting of the Ministers’ Deputies, 2–7 May 2001.

¹³ Protocol 11 to the European Convention removed the role of the Committee of Ministers in this regard.

¹⁴ The Council of Europe has on a few occasions now published a ‘digest of case law’; see Council of Europe, Digest of the Case Law of the European Committee of Social Rights (Council of Europe, 2008). Available at: www.coe.int/t/dghl/monitoring/socialcharter/Digest/DigestSept2008_en.pdf. On the ECSR’s method of interpretation, see, inter alia, R Brillat, ‘The Supervisory Machinery of the European Social Charter: Recent Developments and Their Impact’ and P Alston, ‘Assessing the Strength and Weaknesses of the European Social Charter’s Supervisory System’, both in de Búrca and de Witte (n 2) 31 and 45, respectively. See also Cullen, H, ‘The Collective Complaints System of the European Social Charter: Interpretative Methods of the European Committee of Social Rights’ (2009) 9 Human Rights Law Review 61 CrossRefGoogle Scholar.

¹⁵ The ECSR does this routinely when dealing with the merits of a collective complaint. See, for examples, the discussion below.

¹⁶ See in particular the breadth of art 153 of the Treaty on the Functioning of the European Union (TFEU) and the scope of the directives where it has been used as a legal base.

¹⁷ The Charter system is set up so that State Parties only need accept a minimum number of obligations. Parties to the original Charter must accept at least five out of the seven core rights, and in total either 10 of the 19 articles or 45 out of 72 numbered paragraphs, while parties to the Revised Charter must accept at least six of the nine core rights, as well as at least 16 of the 31 articles or 63 out of 98 numbered paragraphs.

¹⁸ For an accessible exposition, see Langford, M, ‘The Justiciability of Social Rights: From Practice to Theory’ in Langford, M (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge, Cambridge University Press, 2008) 3 Google Scholar. For examples of statements made by Member State representatives, see n 63 below.

¹⁹ See the Appendix to both Charters with regard to those it extends to. On the scope of obligations under the ECHR, see art 1.

²⁰ The freedom to provide services is a possible exception.

²¹ For more general discussion, see a number of the essays in de Búrca and de Witte (n 2).

²² For the general position, see Pazarci, H, ‘Preamble’ in Corten, O and Klein, P (eds), The Vienna Conventions on the Law of Treaties: A Commentary (Oxford, Oxford University Press, 2011) vol 1, 1.Google Scholar

²³ Community Charter of the Fundamental Social Rights of Workers [1989] OJ C120/52.

²⁴ The Community Charter is a solemn declaration adopted by the Heads of State or Government of all Member States except the United Kingdom at a meeting of the European Council in Madrid in 1989.

²⁵ For an attempt to consider economic and social rights as ‘constitutional principles’ under EU law, see European Parliament, ‘Fundamental Social Rights in Europe’ (1999) Working Paper, PE 168.629. Available at: www.europarl.europa.eu/workingpapers/soci/pdf/104_en.pdf.

²⁶ See, eg, Case C-438/05 International Transport Workers’ Federation (ITF) and Finnish Seamen’s Union (FSU) v Viking Line [2007] ECR I-10779 [43]; and Case C-341/05 Laval un Partneri v Svenska Byggnadsarbetareförbundet [2007] ECR I-11767 [66]. For recent and rare examples of where the Court has referred to the ESC but not the 1989 Community Charter, see Case C-271/08 Commission v Germany [2010] ECR I-7091 [37]; and Case C-268/06 Impact v Minister for Agriculture and Food and Others [2008] ECR I-2483 [113].

²⁷ International Covenant on Civil and Political Rights, 1966, 999 UNTS 171; Convention on the Rights of the Child, 1989, 1577 UNTS 3. The Court has, however, stated that the ICCPR and the Convention on the Rights of the Child are ‘international instruments for the protection of human rights of which it [the Court] takes account in applying the general principles of Community law’. See, eg, Case C-540/03 European Parliament v European Council [2006] ECR I-5769 [37] with regard to both treaties. It has not made a similar statement with regard to the ESC.

²⁸ In Case 149/77 Defrenne [1978] ECR 1365 [27]–[28], the Court did consider the prohibition on sexual discrimination to be a fundamental right and in coming to that conclusion specifically referred to the ESC and ILO Convention No 111, Concerning Discrimination in Respect of Employment and Occupation, but the basis of its decision was not the existence of the obligations under the ESC. In C-540/03 European Parliament v European Council [2006] ECR I-05769, the Court did carefully consider the ESC, but the decision to dismiss the European Parliament’s application for annulment did not turn on the obligations entailed in the Charter. See also Case 24/86 Blaizot [1988] ECR 379 [17].

²⁹ In Case 67/96 Albany [1999] ECR I-5751 [146], AG Jacobs noted that ‘the structure of the Charter is such that the rights set out represent policy goals rather than enforceable rights’.

³⁰ For discussion of the protection of economic and social rights under the EU Charter more generally, see Hervey, T and Kenner, J (eds), Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Oxford, Hart Publishing, 2003)Google Scholar. It is unclear what the exact status of the 1989 Community Charter is in light of the CFREU now having the same status as the EU treaties. While it would seem obvious that the CFREU has replaced the 1989 Community Charter, the TFEU still makes reference to it, so presumably the Community Charter continues to have some status.

³¹ Some directives make passing reference to the ESC. Examples include: Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents [2004] OJ L16/44 and Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification [2003] OJ L251/12. In both the examples given, the reference in the relevant directive to the ESC seeks to ensure that the provisions in the directive are without prejudice to the more favourable provisions of the Social Charter.

³² For a full table to this effect, see Churchill (n 2).

³³ See further Explanations Relating to the Charter of Fundamental Rights [2007] OJ C303/17.

³⁴ See art 51 CFRFEU.

³⁵ See further Case C-399/11 Melloni (ECJ, 26 February 2013) [55]–[64].

³⁶ It would also be the case that where an EU Member State ratifies either the 1961 ESC or the RESC prior to acceding to the EU but then subsequently accepts a provision of the Charter which it had not accepted on ratification after it has joined the EU, it cannot rely upon Article 351 TFEU with regard to those Social Charter provisions subsequently accepted.

³⁷ The Explanatory Report to the European Social Charter (Revised), paras 8–10. Available at: http://conventions.coe.int/Treaty/en/Reports/Html/163.htm. The Report notes that ‘it [the RESC] does not conflict with the Charter but is intended to eventually replace it … [I]f a Contracting State accepts the provisions of the Revised Charter, the corresponding provisions of the initial Charter and its Protocol cease to apply to that State’.

³⁸ Poland has ratified the Amending Protocol of 1991, which the UK has not. The Protocol, which does not contain substantive rights, is to all extents and purposes in force. See n 4 above.

³⁹ The Additional Protocol of 1988 adds another layer of complexity as States must be party to the 1961 Charter to ratify the Protocol, but it does contain further substantive rights. The Explanatory Report to the Protocol states in this regard: ‘The Protocol is to be regarded as an instrument which, although in some respects is an “extension” of the Charter, is nonetheless legally independent of it.’ Explanatory Report to the Additional Protocol to the European Social Charter, para 10. Available at: http://conventions.coe.int/Treaty/en/Reports/Html/128.htm.

⁴⁰ Croatia has signed and ratified all Social Charter treaties but not the RESC, which it has only signed. On the application of what is now art 351 TFEU in the context of social rights, in these cases to an ILO Convention, see Case C-345/89 Stoeckel [1991] ECR I-4047; and Case C-158/91 Levy [1993] ECR I-4287.

⁴¹ For detailed discussion of this issue, see Khaliq, U and Churchill, R, ‘The Protection of Economic and Social Rights: A Particular Challenge?’ in Keller, H and Ulfstein, G (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge, Cambridge University Press, 2012) 199 CrossRefGoogle Scholar; and with regard specifically to the ECtHR, see, inter alia, Koch, I, Human Rights as Indivisible Rights: The Protection of Socio-Economic Demands under the European Convention on Human Rights (Leiden, Martinus Nijhoff, 2009)Google Scholar.

⁴² In, eg, Smith and Grady v UK App Nos 33985/96 and 33986/96 (ECtHR, 27 September 1999), dismissal from the British armed forces solely on the grounds of sexual orientation was considered a breach of private life under art 8.

⁴³ Demir and Bakyara v Turkey App No 34503/97 (ECtHR, 12 November 2008) [140]–[154]. See arts 5 (right to organise) and 6 (collective bargaining) of the ESC and of the RESC. See also arts 12(1) (freedom of assembly) and 28 (right of collective action and bargaining) CFREU.

⁴⁴ Opinion 2/94 (Accession of the European Communities to the European Convention on Human Rights) [1996] ECR I-1759.

⁴⁵ The Opinion was requested by the Council in April 1995 and the Court delivered the Opinion in March 1996. In October 1994, the Charte-Rel Committee adopted a ‘draft Revised European Social Charter’ and submitted it to the Committee of Ministers for adoption. The Committee of Ministers adopted the text on 3 April 1996 and opened it for signature on 3 May 1996.

⁴⁶ Switzerland and Liechtenstein are members of the Council of Europe and are not party to the ESC.

⁴⁷ For an outline of the process and stages in the EU’s accession to the ECHR, see Fifth Negotiation Meeting between the CDDH Ad Hoc Negotiation Group and the European Commission on the Accession of the European Union to the European Convention on Human Rights, Final Report to the CDDH (5 April 2013) Doc 47+1 (2013)008, 17 et seq.

⁴⁸ Draft Article L of what became the RESC had a provision to the effect that would allow accession by the European Community. On the ‘revitalisation process’, see, inter alia, Harris, D, ‘A Fresh Impetus for the European Social Charter’ (1992) 41 International & Comparative Law Quarterly 659 CrossRefGoogle Scholar; and di Benischi, P, ‘Reforms of the Charter Since 1989—Reform of the Supervisory Machinery and Reform of the Rights Guaranteed’ in Council of Europe, The Social Charter of the 21st Century. Colloquy Organized by the Secretariat of the Council of Europe (Strasbourg, Council of Europe, 1997) 43 Google Scholar.

⁴⁹ On the desire of those associated with the ESC wishing for EU accession, see the discussion below.

⁵⁰ See n 1 above.

⁵¹ The status of economic and social rights in the CFREU does suggest that the EU is not as serious about protecting such rights as its rhetoric would have us believe.

⁵² See, eg, ETUC, ‘Position on the Social Dimension of the European Union’, adopted 23 April 2013, where it is noted that: ‘We insist that the EU and its member states should observe scrupulously European and international instruments such as … the revised European Social Charter, to which the European Union should accede as well as to its Protocol providing for a system of collective complaints.’ Available at: www.etuc.org/a/11136. See also n 2 above.

⁵³ In the context of the EU’s accession to the ECHR, Article 1 of Protocol (No 8) Relating to Article 6(2) of the Treaty on European Union on the Accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms [2010] OJ C83/273 sets out that the accession ‘shall make provision for preserving the specific characteristics of the Union and Union law’. Although supremacy is not mentioned, it is clearly one of the characteristics being referred to.

⁵⁴ For recent discussion on the tension between economic integration and social rights in the EU, see, inter alia, the essays in Rönnmar, M (ed), Labour Law: Fundamental Rights and Social Rights (Oxford, Hart Publishing, 2011)Google Scholar. For more dated but still valuable analysis, see M Poiares Maduro, ‘Striking the Elusive Balance between Economic Freedom and Social Rights in the EU’ in Alston (n 2) 449; and Barnard, C and Deakin, S, ‘In Search of Coherence: Social Policy, the Single Market and Fundamental Rights’ (2000) 31 Industrial Relations Journal 331 CrossRefGoogle Scholar.

⁵⁵ Laval (n 26); Viking Line (n 26); Case C-346/06 Dirk Rüffert v Land Niedersachsen [2008] ECR I-1989; Case C-319/06 Commission v Luxembourg [2008] ECR I-4323. These four cases have generated a huge literature; see, inter alia, Syrpis, P and Novitz, T ‘Economic and Social Rights in Conflict: Political and Judicial Approaches to Their Reconciliation’ (2008) 33 European Law Review 411 Google Scholar; Davies, A, ‘One Step Forward, Two Steps Back? The Viking and Laval Cases in the ECJ’ (2008) 37 Industrial Law Journal 126 CrossRefGoogle Scholar; Bücker, A and Warneck, W (eds), Reconciling Fundamental Social Rights and Economic Freedoms After Viking, Laval and Ruffert (Baden, Nomos, 2011)CrossRefGoogle Scholar; and Deakin, S, ‘The Lisbon Treaty, the Viking and Laval Judgments and the Financial Crisis: In Search of New Foundations for Europe’s “Social Market Economy”’ in Bruun, N, Lorcher, K and Schomann, I (eds), The Lisbon Treaty and Social Europe (Oxford, Hart Publishing, 2012) 19 Google Scholar.

⁵⁶ See Observation (CEACR)—adopted 2010, published 100th ILC session (2011) Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87)—United Kingdom, where it was noted that: ‘The Committee wishes once again to recall the serious concern it raised as to the circumstances surrounding the BALPA proposed industrial action, for which the courts granted an injunction on the basis of the Viking and Laval case law.’

⁵⁷ See Arnull, A, ‘ Opinion 2/94 and its Implications for the Future Constitution of the Union’ in The Human Rights Opinion of the European Court of Justice and its Constitutional Implications CELS Occasional Paper No 1 (Cambridge, Centre for European Legal Studies, 1996) 7 Google Scholar; and Gaga, G, ‘Opinion 2/94’ (1996) 33 CML Rev 973 Google Scholar.

⁵⁸ Above n 47. On the CJEU’s position vis-a-vis the ECHR, see its pointed observation in Case C-617/10 Åklagaren v Hans Åkerberg Fransson (ECJ, 26 February 2013) [44].

⁵⁹ Joined Cases C-402/05P and C-415/05P Kadi and Al Barakat v Council and Commission [2008] ECR I-6351.

⁶⁰ See, eg, S Evju, ‘The European Social Charter’ in Blanpain (n 2) 19, 32; and Churchill and Khaliq, ‘The Collective Complaints System’ (n 9) 456.

⁶¹ On normative hierarchy, see, inter alia, Seidermann, I, Hierarchy in International Law: The Human Rights Dimension (Antwerp, Intersentia, 2001)Google Scholar; and de Wet, E and Vidmar, J (eds), Hierarchy in International Law: The Place of Human Rights (Oxford, Oxford University Press, 2012)CrossRefGoogle Scholar.

⁶² See further Churchill (n 2) 79–81. In Commission Memorandum, Accession of the Communities to the European Convention on Human Rights, EC Bull, Supplement 2/79, which first set out the case for Community accession, it is noted (at 5) that there is no agreement between the ‘Member States on the definition of economic and social rights’.

⁶³ See, eg, Fifth Periodic Report of the United Kingdom of Great Britain and Northern Ireland, UN Doc E/C.12/GBR/5, 31 January 2008, paras 71–75; Fifth Periodic Report of Poland, UN Doc E/C.12/POL/5 and in particular, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Poland, E/C.12/POL/CO/5, 2 December 2009, para 8, where it is noted by the CESCR Committee that it ‘is deeply concerned that the State party still views the Covenant as programmatic, aspirational and not justiciable’.

⁶⁴ Article 151(2) TFEU is clear that the EU and its Member States shall ‘implement measures which take account of the diverse forms of national practice … and the need to maintain the competitiveness of the Union’s economy’ (emphasis added). Ashiagbor, D, ‘Unravelling the Embedded Liberal Bargain: Labour and Social Welfare Law in the Context of EU Market Integration’ (2013) 19 European Law Journal 303, 308CrossRefGoogle Scholar argues clearly that the EU’s Lisbon strategy moves away from protecting workers from the market to strengthening their employ-ability within the market. Such an approach is difficult to reconcile with that adopted by the Social Charters and in turn the ECSR.

⁶⁵ Explanatory Report to the European Social Charter (Revised) para 26. Available at: http://conventions.coe.int/Treaty/en/Reports/Html/163.htm.

⁶⁶ ILO Convention No 173 (Protection of Workers’ Claims (Employers’ Insolvency)) of 1992.

⁶⁷ Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer [1980] OJ L283/23.

⁶⁸ This is in particular because Explanatory Report to the European Social Charter (Revised) (n 65) para 41 makes express reference to it and the ECSR referred to the directive as there was no other relevant European standard. The ECSR now refers to Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work [1994] OJ L216/12. See, eg, Conclusions XVII-2 (United Kingdom) 5.

⁶⁹ Conclusions XVI-1—vol 1, 314. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16.

⁷⁰ Conclusions 2009—Turkey, art 3(2).

⁷¹ See, eg, the Conclusions relating to Ireland, Conclusions XIV-2—vol I, 386. See also Complaint No 10/2000 Tehyry and STTK v Finland, Decision on the Merits, 17 October 2001.

⁷² Explanatory Report to the European Social Charter (Revised) (n 65) para 23: ‘This provision … has been amended so as to reflect present-day policies which aim to eliminate the risks to which workers are exposed.’

⁷³ Complaint No 63/2010 Centre on Housing Rights and Evictions (COHRE) v France, Decision on the Merits, 28 June 2011 passim; and Directive 2004/39/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77. See also Complaint No 58/2009 Centre on Housing Rights and Evictions (COHRE) v Italy, Decision on the Merits, 25 June 2010, which dealt with very similar issues.

⁷⁴ Complaint No 63/2010 COHRE v France, Decision on the Merits, paras 33 and 34.

⁷⁵ Ibid paras 69–79.

⁷⁶ Time and again, Contracting Parties to the Charter are in compliance with their Charter obligations vis-a-vis EU nationals only, due to EU law, but not with regard to other lawful migrants. For example, art 18 of the 1961 Charter protects the right to engage in gainful occupation in the territory of other Contracting Parties. In Conclusions XIII-I, 194, the ECSR noted ‘that Contracting Parties, Member States of the European Community, have completely realised the aim of this provision of the Charter vis-à-vis European Community nationals’. Similarly, see art 12(4) ESC, which concerns equal treatment with respect to social security where the situation in EU Member States is seen as being satisfactory with regard to EU nationals only. See, eg, Conclusions XIV-I, 82 and 371 with regard to Austria and Greece, respectively; and Conclusions XVI-I, 214 with regard to Finland.

⁷⁷ See Conclusions XII-1, 101 (United Kingdom).

⁷⁸ Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding [1992] OJ L348/1.

⁷⁹ Conclusions XIII-4 88 et seq (United Kingdom).

⁸⁰ Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi v Ireland App No 45036/98 (ECtHR, 30 June 1995) [165].

⁸¹ Complaint No 55/2009 Confédération générale du travail (CGT) v France, Decision on the Merits, 23 June 2010, para 33.

⁸² Ibid. This approach is part of the well-established practice of the ECSR under the reporting system. For a slightly differently worded earlier version, see Conclusions XIV-1, vol 1, 28, which dates from 1998.

⁸³ Vienna Convention on the Law of Treaties, 1969, 1155 UNTS 331.

⁸⁴ CGT v France (n 81).

⁸⁵ Cantoni v France App No 17862/91 (ECtHR, 15 November 1996).

⁸⁶ The ECtHR’s judgment in Bosphorus was made public on 30 June 2005 after the French and Dutch referenda which sounded the death knell for the Constitutional Treaty. However, the judgment was finalised on 11 May 2005, several weeks before the referenda.

⁸⁷ See Complaint No 76/2012 Federation of Employed Pensioners of Greece (IKA –ETAM) v Greece, Decision on the Merits, 7 December 2012; Complaint No 77/2012 Panhellenic Federation of Public Service Pensioners v Greece, Decision on the Merits, 7 December 2012; Complaint No 78/2012 Pensioners’ Union of the Athens-Piraeus Electric Railways (ISAP) v Greece, Decision on the Merits, 7 December 2012; Complaint No 79/2012 Panhellenic Federation of Pensioners of the Public Electricity Corporation (POS-DEI) v Greece, Decision on the Merits, 7 December 2012; and Complaint No 80/2012 Pensioner’s Union of the Agricultural Bank of Greece (ATE) v Greece, Decision on the Merits, 7 December 2012.

⁸⁸ See, eg, IKA—ETAM v Greece (n 87) [50]–[52]. The five decisions on the merits are in essence very similar and in all five complaints the situation in Greece was found not to be in conformity with various provisions of the Charter.

⁸⁹ Complaint No 85/2012 Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v Sweden. The ECSR has not yet decided whether the complaint is admissible. Based upon its existing practice, it is most likely to find it admissible. The Swedish trade unions have also sought to challenge Laval before the Committee of Experts of the ILO.

⁹⁰ Deakin (n 55) 30.

⁹¹ Reform of Swedish law in light of Laval has been extremely difficult; see A Bücker, F Dorssemont and W Warneck, ‘The Search for a Balance: Analysis and Perspectives’ in Bücker and Warneck (n 55) 317 et seq.

⁹² Above n 40.