Notice pursuant to Article 19(2) of Council Regulation (EC) No 732/2008 of the termination of an investigation with respect to the protection of the freedom of association and the right to organise in the Republic of El Salvador
Date: 2009-10-24
Institutions: European Commission
Subjects: El Salvador, International Labour Organisation, international convention, national law, trade union freedom, trade union rights








C_2009255EN.01000101.xml










24.10.2009   


EN


Official Journal of the European Union


C 255/1





Notice pursuant to Article 19(2) of Council Regulation (EC) No 732/2008 of the termination of an investigation with respect to the protection of the freedom of association and the right to organise in the Republic of El Salvador
2009/C 255/01
On 31 March 2008 the Commission initiated by Decision 2008/316/EC (1), an investigation in order to establish whether the national legislation of the Republic of El Salvador (hereinafter referred to as ‘El Salvador’) no longer incorporates the International Labour Organisation's (ILO) Convention No 87 concerning Freedom of Association and Protection of the Right to Organise or whether that legislation is not effectively implemented. The investigation was initiated on the basis of information received by the Commission that the Supreme Court of El Salvador in its ruling of 28 October 2007 in the cases 63-2007 and 69-2007 had declared certain provisions of the ILO's Convention No 87 incompatible with Article 47 of the Constitution of El Salvador.
The Commission has carried out the investigation and found that El Salvador ratified ILO Convention No 87 and incorporated it into its national legislation. The investigation's findings also confirmed that the ruling of El Salvador's Supreme Court did not revoke the ratification of ILO Convention No 87. That Convention remains in force and is applicable in El Salvador. However, the Supreme Court ruling had as a consequence that Article 2 of the Convention 87 applied only partially. The right to organise enshrined and guaranteed in Article 2 of Convention No 87 applied in El Salvador only to workers in the private sector but not to those in the public sector.
On the 26 September 2008, the Commission has received a communication from the government of El Salvador, in which the government informed that it had begun the process of reform of Article 47 of the Constitution to make it clear that public-sector employees will have the right to form trade unions. El Salvador further specified that the Legislative Assembly of El Salvador approved this reform on 24 August 2006 and committed to promote the conclusion of the approval process of this reform when the new Legislative Assembly of El Salvador would take office in May 2009. On 27 May 2009 the Legislative Assembly of El Salvador adopted an amendment to Article 47 of the El Salvadoran constitution addressing the incompatibility with ILO Convention No 87. This amendment was published on 4 June 2009 in the Official Journal of El Salvador, Book 383, No 102, and entered into force on 12 June 2009. The amendment provides for the rights guaranteed by Article 2 of Convention No 87 to be extended to workers in the public sector in El Salvador, while excluding certain specific categories of public sector workers. The scope of the exceptions clause is broader than would be permitted under the ILO Convention No 87. Consequently the inconsistency between the national legislation of El Salvador and ILO Convention No 87 has been significantly removed, although a limited inconsistency between the text of the revised Article 47 of the El Salvadoran Constitution and Article 2 of ILO Convention No 87 still exists.
Given that the significant efforts undertaken by the government of El Salvador resulted in the amendment to Article 47 of the El Salvadoran Constitution which removes the main barrier to the application in El Salvador of the rights enshrined in Article 2 of Convention No 87, the Commission considers that temporary withdrawal of the special incentive arrangement granted under Regulation (EC) No 732/2008 (2) is not justified at this time. However, the exercise of rights guaranteed by Article 2 of Convention No 87 will be followed up during the ongoing monitoring by the Commission of the performance of all special incentive arrangement beneficiaries as provided for under Article 8(3) of Regulation (EC) No 732/2008.
Pursuant to Article 19(2) of Regulation (EC) No 732/2008 the Commission decided in accordance with the procedure referred to in Article 27(5) of that Regulation that the findings of the investigation do not justify temporary withdrawal of the special incentive arrangement referred to in Section 2 of Chapter II of Regulation (EC) No 732/2008 and therefore to terminate the investigation.


(1)  OJ L 108, 18.4.2008, p. 29.

(2)  OJ L 211, 6.8.2008, p. 1.