The basic features concerning the collective nature of the procedure and the entitlement to lodge complaints before the European Committee of Social Rights (ECSR) are of crucial importance to understand the main issues that may arise in the admissibility of collective complaints under the European Social Charter (ESC) system.

Issues Relating to the Admissibility of Complaints Lodged by Trade Unions

Besides the limitation consisting in the fact that the procedure is not open to individual applications (or complaints relating to a single individual's situations), these issues relate primarily – in the practice of the ECSR – to certain ‘subjective’ features of the collective bodies which are entitled to lodge complaints.

Problems may arise, for instance, with regard to the national social partners referred to in Article 1, paragraph c), of the 1995 Protocol. Under this provision, the right to submit complaints is granted to ‘representative national organisations of employers and trade unions within the jurisdiction of the Contracting Party against which they have lodged a complaint’. The bodies in question must therefore consist of a representative national trade union (or a representative national employers’ organisation).

The concept of ‘trade union’, however, is given neither in the Charter nor in the Protocol or its Explanatory Report. In this respect, the ECSR tends generally to rely on any relevant domestic legal rules providing for trade unions that they must be registered, or have a specific organisational structure, to determine whether the body can be regarded as a trade union for the purposes of the collective complaints procedure.

However, the state party's domestic legal order may not establish any requirement for trade unions to be registered as legal persons or to be organised according to a specific structural model. This is the case, for example, in Italy, where trade unions are not corporate bodies with legal personality and are granted instead the status of ‘non-registered associations’ subject to ordinary law (Articles 36 to 38 of the Italian Civil Code), all of which have the capacity in principle to negotiate and conclude collective agreements, to carry out collective activities and to appear and plead before a court.