THE REASONS FOR THE COMPLAINT
The suspension of child benefit in the event of truancy is a measure provided for by Law no. 2010-1127 of 28 September 2010 aimed at combating truancy (JORF no. 0226 of 29 September 2010 page 17553 text no. 1) and Law no. 2011-267 of 14 March 2011 on parental responsibility contracts.
For EUROCEF, the suspension of family allowances is used as a sanction for parental behaviour, which amounts to considering these allowances no longer as a right, as guaranteed by Article 16 of the Charter, but as a reward reserved only for parents who do not encounter educational difficulties. What is more, their suspension, which constitutes a sanction against the parents, is detrimental to the best interests of the children who, under French law, are considered to be beneficiaries of social benefits.
In addition, the suspension of child benefit undermines the principle of non-discrimination set out in Article E of the Charter [8], because this sanction for a child's truancy applies only to families receiving child benefit, leaving families with only one dependent child under the age of 20 ‘unpunished’; in addition, the suspension of the portion of benefits relating to a child who is absent from school has the effect of reducing the family unit's income, which therefore penalises the other members of the family, parents and siblings, even though the members of the family are in no way responsible for or involved in any misconduct. EUROCEF also mentions the risk of unequal treatment of families according to their intellectual background and their ease in dealing with others (orally or in writing).
Finally, EUROCEF maintains that, in a country where 8 million people live below the poverty line, family allowances constitute an essential, if not absolute, part of their income. Consequently, to undermine this income, even temporarily, is likely to penalise people who are already weakened by upsetting their fragile economic balance or by worsening an economic situation that is sometimes already seriously deteriorated.
THE PROCEDURE
The claim was registered by the ECSR on 4 April 2012.
The ECSR then invited the French government to submit a statement by 31 July setting out its observations both on the admissibility of the claim and on its merits, should the claim be declared admissible. This demonstrates the Committee's twofold concern: before taking a decision on the merits, it is necessary to check that the body lodging the complaint fulfils the conditions required to do so.
The French Government's submission was registered on 25 July 2012. The content of the memorandum may come as a surprise, since it seeks to justify the provisions in question at a time when, less than 3 months previously, a new President of the Republic had just been elected who had himself pledged, during the campaign, to repeal the law on the suspension of family allowances. On the one hand, it appears that this brief does not appear to have been brought to the attention of the elected representatives, the response having been drafted by a writer from the Human Rights sub-department of the Legal Affairs Directorate of the Ministry of Foreign Affairs. On the other hand, at the date of drafting this brief, no bill or draft law had yet been officially tabled to give effect to this commitment by the Head of State. This may explain the essentially legal nature of the French government's response.
EUROCEF was invited to submit a reply to the French government's response and sent this new document on 24 October 2012.
THE CEDS REPORT
In a 28-page document, the ECSR first sets out the submissions of each of the parties and analyses in detail the law and case law applicable in France to the subject of the claim. It then addresses the merits of the case from the point of view of the admissibility of the claim and its merits.
1. Admissibility of the claim
The ECSR rules on the admissibility of the claim, which is based on a number of formal and substantive conditions and is a prerequisite for processing the claim.
The Committee notes that France has ratified the protocol providing for the collective complaints procedure and is therefore bound by it. It notes that the complaint was lodged in writing and that it is reasoned.
The Committee also notes that EUROCEF is an international non-governmental organisation with participatory status with the Council of Europe and that it is on the list of international non-governmental organisations entitled to lodge collective complaints.
As regards EUROCEF's particular competence in the areas of complaints, having examined EUROCEF's statutes, which state that its aim is to develop social and educational assistance for children and families in their living environment, the Committee considers that the organisation has submitted a complaint falling within its areas of competence and is therefore particularly qualified to do so.
For all these reasons, the Committee declares this complaint admissible.
2. On the merits of the claim
a. Alleged infringement of Article 16 of the Charter
EUROCEF considers that as soon as the suspension of family allowances is used as a parental sanction for children's behaviour, these allowances are no longer considered to be a right as guaranteed by Article 16[9] of the European Social Charter..
The government, for its part, argues that making the payment of family benefits conditional on attendance takes account of the child's best interests [10] (sic), that the system is essentially an incentive and that the suspension measure can only be decided in very restricted circumstances.
From the outset, the ECSR recalls the importance of the family's right to social, legal and economic protection in the context of European human rights law in general and the Social Charter in particular. The States parties are free to choose the means of ensuring this protection, and the Committee considers that the family allowances that are the subject of the present complaint constitute one such means, while noting the existence of other benefits that are not affected by the possibility of suspension.
Under Article 17 of the Charter, measures must be taken to encourage school attendance and reduce absenteeism. Here again, the States enjoy a margin of discretion in determining these measures.
The Committee analyses the disputed measure as a restriction on the exercise of the right provided for in Article 16. While it notes that the measure is provided for under French law, that it pursues a legitimate aim - that of reducing truancy - and that the procedural aspects do not raise any particular problems [11], the Committee is much more critical of the proportionality of the measure and its merits. Recalling that the phenomenon of truancy is complex and that it involves a framework of shared responsibilities between parents, schools and public authorities, it notes that the said measure places the sanction of suspension and possible withdrawal of child benefit for truancy solely on one of the parties with obligations in this area, in this case the parents. Punishing only that party amounts to a disregard by the public authorities of their positive obligations in the field of education..
b. Alleged infringement of Article E of the Charter (non-discrimination)
While the Committee considers that the legislative measure in question could have a considerable impact on certain more disadvantaged sections of the population in France, it nevertheless considers that the claimant organisation has not presented sufficiently substantiated arguments in this respect and that it is therefore not necessary to examine this issue.
c. Infringement of section 30 of the Charter (right to protection against poverty and social exclusion)
In view of the supplementary nature of the benefits paid to the families potentially affected by the disputed suspension measure, the Committee considers that the deprivation of this additional income, although contrary to Article 16 of the Charter, cannot be regarded as constituting a violation of Article 30 of the Charter for lack of sufficient resources. In reaching this conclusion, the Committee relies on previous work demonstrating that in this area of protection against poverty, the comprehensive and coordinated approach implemented by the French Government provided a clear analytical framework and set priorities and relevant actions.
CONCLUSION OF THE REPORT
For these reasons, the Committee :
- Unanimously declares the complaint admissible
- By 9 votes to 2, concludes that there is no violation of section 16 of the Charter as a result of the repeal of the Act.
- Unanimously concludes that it is not necessary to examine the allegations of non-compliance with Article E of the Charter read in conjunction with Article 16 of the Charter
- Unanimously concludes that there has been no violation of Article 30 of the Charter
- Unanimously concludes that no separate issue arises under Article E of the Charter in conjunction with Article 30 of the Charter.
WHAT CAN WE LEARN FROM IT?
– The procedure itself
First of all, the very existence of this collective complaints procedure is to be welcomed. At a time when citizens are increasingly dissatisfied with representative democracy, this expression of participatory democracy helps to give Europe a different image from that of an inaccessible technocracy far removed from their concerns.
It is also worth noting the eminently democratic nature of this procedure, which respects the legal rules that allow the parties to express their vision of the problem posed by the back-and-forth between the claimant and the State in question. Part of this democratic spirit is the very composition of the Committee (11 independent experts from 11 different countries) and the possibility offered to each of these experts to make public a specific expression, as we will discuss below.
Finally, it is worth noting the seriousness with which the arguments of each of the parties and the national context in which the contested provision is set are examined, all in the context of European doctrine as illustrated by the conventions and charters in force.
On the suspension of family allowances itself
The position of the ‘wise men’ is unambiguous, since it is asserted that such a system constitutes a violation of Article 16 of the European Social Charter.
It is regrettable, however, that the report's conclusion is not as clear in its condemnation, since it simply states that there is no violation of section 16 of the Charter, due to the repeal of the law. It should be noted that this conclusion was not reached unanimously, but only by nine of the eleven judges. To our great satisfaction, two judges, one Greek, the other Italian, felt that it should have been held that there was a breach of the Charter until the law was repealed. Each of them explains this in a text entitled Dissenting Opinion, which is appended to the report that has been made public. Among the arguments put forward by the two judges is one from the Italian judge: Ruling on the merits by adopting a decision stating that ‘there has been no breach’ of the Charter, once it has been explicitly assessed, to the contrary, that the complaint submitted by the claimant [...] was perfectly well-founded, and that the situation that was the subject of the proceedings was indeed contrary to the Charter, is not an appropriate way [... ] either to do justice to the claimant and to the preceptive value of the Social Charter, or to strengthen the credibility of the action of the European Committee of Social Rights as a quasi-jurisdictional supervisory body for the observance of social rights.
In conclusion, we would like to point out that EUROCEF's initiative was recognised as well-founded, that it was carefully examined on its merits, and that the response it received was a formal rejection of the system of suspending family allowances to combat truancy.
Let's bet that such a decision by the European institution will make any attempt to reinstate such a measure in the French legal arsenal much more difficult, if not impossible.
Last but not least, this is proof that social workers can take part in the construction of social Europe and, through their vigilance, challenge decisions that do not seem to them to be in line with the rights of the people they support. When they wish to seize this opportunity, they should know that in EUROCEF they will find an interpreter fully capable of conveying their concerns.
by Philippe LECORNE member of the EUROCEF Bureau, 18 December 2013.
[1] This article, which appeared in the December 2013 issue of the journal Espace Social, is reproduced here with the kind permission of Carrefour National de l'Action Educative en Milieu Ouvert (CNAEMO), the French NGO that distributes the journal: www.cnaemo.com