Council of Europe Does Not Answer Call for Changes to the Internal Remedy Mechanism for Staff Members
By Frédéric Dopagne, Saskia Lemeire and Bert Theeuwes
In early 2018, the Parliamentary Assembly of the Council of Europe adopted Resolution 2206 and Recommendation 2122 in which the Assembly was critical of the current availability of internal remedy mechanisms for staff members in general, and recommended the Committee of Ministers of the Council of Europe to take several measures to strengthen staff members’ right of access to a court and a fair trial. The Committee of Ministers stressed the importance of providing reasonable alternative means of legal protection of staff members, but did not consider it necessary nor warranted to make changes to the existing internal dispute resolution mechanism of the Council of Europe.
As detailed in our earlier blogpost, on 26 January 2018, the Assembly adopted Recommendation 2122 in which it called on the Committee of Ministers to encourage the international organizations to which the Member States of the Council of Europe are parties to verify whether reasonable alternative means of legal protection are available to their staff members, to invite these organizations to provide more transparency on their staff policies, and to initiate a comparative study on the compatibility of internal remedy mechanisms with the rights of access to a court and a fair trial as protected by Article 6 of the European Convention on Human Rights and other relevant human rights instruments. The Assembly further called on the Committee of Ministers to reflect on how to make the Administrative Tribunal of the Council of Europe accessible to trade unions and on whether to create an appeals procedure for decisions taken by the Administrative Tribunal.
Following an opinion of the Committee of Legal Advisers on Public International Law on 23 March 2018, the Committee of Ministers replied to Recommendation 2122 on 28 September 2018. In its Reply, the Committee of Ministers stressed the importance of providing reasonable alternative means of legal protection to staff members, and encouraged all international organizations to which Council of Europe Member States belong to examine the availability of reasonable alternative means and to ensure transparency and availability of information on staff policies and employment disputes to their staff.
However, regarding the Council of Europe itself, the Committee of Ministers did not consider it necessary to take any measure.
The Assembly had called for a reflection on how to make the Administrative Tribunal of the Council of Europe accessible to trade unions. In this respect, the Committee emphasized that the Staff Committee of the Council of Europe can make use of the internal complaint and appeal mechanism. Since trade unions do not enjoy any statutory rights in the context of the Council of Europe, and referring to the ruling of the Dutch Supreme Court in a case brought by a trade union against the European Patent Organization (see our blogpost here), the Committee did not seem to consider it necessary to reflect on this issue further.
Likewise, the Committee decided that the creation of an appellate body for its staff disputes was not warranted nor expedient in view of the additional costs and delay in having a final decision this would cause.
Lastly, the Committee was of the opinion that it would be premature to carry out a comparative study of the different internal remedy systems in international organizations and their compatibility with Article 6 of the European Convention on Human Rights. The Committee did note that the Committee of Legal Advisers on Public International Law will continue to examine the issue of jurisdictional immunity of international organizations under all its different angles.