Informe definitivo - Informe núm. 327, Marzo 2002

1. 548. The General Union of Workers of Spain (UGT) presented the complaint in a communication dated 23 March 2001. The Government sent its observations in a communication dated 26 September 2001.
2. 549. Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 550. In its communication dated 23 March 2001, the General Union of Workers of Spain (UGT) alleges that, in Basic Act No. 8/2000 on the Rights and Freedoms of Foreigners in Spain and their Social Integration (OL 8/2000), which entered into force on 23 January 2001, the Government imposes serious restrictions on the basic rights provided by the Act that it amends (OL 4/2000 of the same title, which had been in force for less than a year). In the complainant’s view, the new Act specifically restricts the exercise of right to organize and strike, freedom of assembly, demonstration and association and, by extension, collective bargaining rights, through the clause that foreigners may exercise such rights and freedoms only "when they obtain authorization for their stay or residence in Spain" (OL 8/2000, section 11).
2. 551. The complainant also alleges that the new Act causes legal insecurity by creating a new, unlawful and unjust situation that provokes social and family problems among immigrants living in the country. There are two main reasons for this: the sudden change in the law, which gives rise to fears of administrative, including political persecution; and the lack of clear intermediate regulations that would allow a less traumatic transition for the large immigrant communities in Spain, that consist of hundreds of thousands of families and individuals. With the immediate introduction of new regulations, it would appear that immigrants present in Spain before the new Act came into effect, who enjoyed a more favourable legal status, including certain recognized rights and freedoms, will now be subjected to a much stricter regime, equivalent to that of future immigrants, without any additional advantage deriving to them from their presence in the country. Those who do not yet have the status of residents but are in the process of applying will also be deprived of the rights they enjoyed under the previous Act.
3. 552. The complainant adds that the new law promoted by the Government conflicts openly with articles 10.2 and 13.1 of the current Spanish Constitution, adopted in 1978. These articles establish, respectively, that "norms pertaining to the basic rights and freedoms recognized by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and relevant international treaties and agreements ratified by Spain" and "foreigners in Spain shall enjoy the public freedoms guaranteed by the present title ("On Basic Rights and Responsibilities") in the terms established by treaties and the law". These provisions, which were faithfully reproduced in the previous Act (OL 4/2000), section 3 of which provides that "foreigners in Spain shall enjoy, on an equal footing with Spanish nationals, the rights and freedoms recognized in Title I of the Constitution", are not upheld by the new Act, which establishes a clearly wrong interpretation in declaring that "as a general criterion of interpretation, it shall be understood that foreigners shall exercise their rights as recognized by this Act on an equal footing with Spanish nationals" (section 3 of OL 8/2000) and removing the broad criterion of interpretation (Universal Declaration of Human Rights) present in OL 4/2000.
4. 553. Moreover, in the complainant’s view, this new legal situation was created on the basis of an abuse of power and a policy of dissuasion used by the Government against foreigners present in the country on an irregular basis and future immigrants planning to come to Spain. This is not only a contravention of national and international law (Universal Declaration of Human Rights, European Social Charter, European Union Charter of Fundamental Rights and ILO constitutional principles and Conventions), but is also undesirable from the social point of view. The UGT alleges that this is an abuse of state power using a legal mechanism that could imply a certain repression given many immigrants’ simple need to survive. The complainant also considers this conduct to be particularly discriminatory against the so-called "irregular" foreigners living in the country. It should be emphasized in this connection that the volume and level of the waves of immigration into the European Union have been the subject of repeatedly voiced concerns on the part of the European institutions (increasing numbers of immigrants from North Africa, Latin America and certain eastern European countries are entering Spain and this flow is not expected to subside for several years). The complainant considers in this connection that the public authorities have not adopted adequate measures (promotion of economic growth in poorer countries and departure from the purely political measures used to date) in order to protect the legitimate desire on the part of socio-economic migrants to improve their own circumstances and those of their families.
5. 554. Finally, in order to demonstrate the true scope of the present complaint in relation to the group of people affected and their situation, the complainant indicates that, since the ILO Conventions on freedom of association and other labour standards recognize workers as the holders of the rights thereby guaranteed, the affected foreigners in Spain shall thence be understood to hold the status of protected workers, even if their presence in the country is not entirely regular. This is the case because the affected immigrants are, for the most part, de facto workers with the prospect of remaining so, since that is the reason for their presence in Spain. Likewise, the complainant indicates that the interpretation applied to the relevant ILO Conventions makes it possible, given the nature of the rights protected, to include the case under discussion.

B. The Government’s reply

1. 555. In its communication dated 26 September 2001, the Government states that OL 8/2000 is based on the fundamental premise that foreigners shall exercise the rights recognized by the given Act on an equal footing with Spanish nationals. This concept is present in the Political Constitution and reflected in the three Acts on the status of foreigners recently adopted in Spain, namely OL 7/1985, OL 4/2000 and OL 8/2000.
2. 556. According to the Government, the issue of the restriction of the rights and freedoms of foreigners in Spain, and particularly freedom of association, has other dimensions, in which the imbalance and inequality in the interpretation of the system of rights and freedoms is between, not nationals and foreigners, but rather "legal immigrants" and "illegal immigrants". The latter are restricted in their exercise of certain rights (as ensues from OL 7/1985, which was not, however, the subject of a complaint to any ILO body). In reality, OL 8/2000 clarifies the status of foreigners legally present in Spain, who are distinguished from those unlawfully present. This essential distinction was blurred in OL 4/2000, which permits the application of any mechanism that the legal regulations can provide in order to control migratory flows. The Government specifies that, where the rights of illegal foreigners are restricted, it is not because they are foreigners, but precisely because they are illegal. Effectively, an illegal immigrant is in a particular, contradictory legal situation: while, as an individual, he is undeniably the holder of rights and freedoms, his illegal status separates him from the legal regime that, in the societies of today, would allow him to exercise and render effective such rights and freedoms. OL 8/2000 thus establishes a distinction between the rights held and exercised by all foreigners, which are basic rights of the individual (for example, the right of foreigners in Spain to seek emergency health care and the continuation of that care until discharge from hospital; the right of pregnant women to medical care during pregnancy, birth and the post-natal period; the right of foreigners to basic social services and benefits whatever their administrative status; the right to free legal aid, if they are unable to pay, in connection with all administrative or legal procedures relating to refusal of entry, repatriation or expulsion), and those which may be exercised only by those whose presence in the country is legal (the right to vote in municipal elections on a reciprocal basis; housing assistance; reunion of the family and exercise of the rights of assembly, demonstration and association and the right to organize and strike; the last two are also contingent on the individual having the status of worker).
3. 557. As regards the supposed unconstitutionality of OL 8/2000, the Government emphasizes that the complainant is indicating its conflict with an organic law, which holds the highest place in the hierarchy of national legal instruments and was approved by the General Courts, seat of the democratic sovereignty of the Spanish people. The Act aims to guarantee the integration into Spanish society of all foreigners living in the country, control migratory flows into the national territory, provide the State with instruments to combat the mafias that traffic in human beings and exploit their labour and implement Spain’s international commitments, making due use of the powers granted States by those commitments. The reform of OL 4/2000 (which OL 8/2000 effectively replaces) was undertaken in view of the situation and characteristics not only of the current immigrant population in Spain but also that anticipated in the years to come. It deals with immigration as a structural phenomenon that has turned Spain into a recipient of migratory flows and also (because of its situation) into a transit point on the way to other States whose border controls, on routes out of Spain, have been eliminated or substantially scaled down. As regards the legal compatibility of OL 8/2000 with the national Constitution, the Government emphasizes that the State Ombudsman, to whom a new appeal on the unconstitutionality of the Act was submitted, decided to reject the appeal on the basis that, in his judgement, it lacked justificatory grounds. Moreover, the issue of restriction of the exercise of certain rights by illegal immigrants had already been considered in detail by the Constitutional Tribunal in connection with OL 7/1985. The Government adds that, since that Act’s treatment of illegal immigrants was not declared unconstitutional (STC115/1987), it may now be affirmed that the provisions of OL 8/2000, which give a more generous interpretation of the legal status of illegal immigrants, are not unconstitutional either.
4. 558. As regards the claim that OL 8/2000 is not compatible with the relevant international norms, the Government declares that the exercise of certain rights under international legal treaties, conventions and declarations remains dependent on the legality of the foreigner’s situation, including certain rights under: the Universal Declaration of Human Rights of 10 December 1948; the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights of 1966; and the European Convention for the Protection of Human Rights and Fundamental Freedoms of November 1950. Among those rights are the right of every person to freedom of peaceful assembly and freedom of association, including the right to establish and join trade unions in order to defend one’s interests. The Government emphasizes, however, that, under these international instruments, the exercise of individual rights and freedoms remains subject only to the restrictions established by law, with the sole objective of ensuring recognition and respect for the rights and freedoms of others and meeting the rightful demands of morality, public order and the general well-being of a democratic society. More specifically, the International Covenant on Economic, Social and Cultural Rights provides that countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals. The Government stresses that, overall, the common denominator of these international instruments is that, on the one hand, they recognize these freedoms while, on the other, making it possible for the national legislator to establish, naturally by means of law, restrictions or a basic requirement for legal status in order to exercise those rights, in order to protect the assets of the democratic society. Hence, the Government specifies, the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), cover basic rights pertaining to the subjects and concepts most in need of legal regulation, such as workers and entrepreneurs. However, freedom of association, assembly and demonstration in the occupational sense, as elements of these freedoms in general and part of the vast body of basic human rights and granted to workers’ and employers’ organizations, must be based on respect for the civil liberties listed in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The requirement for a framework of legality contained in these treaties should be transferable to the exercise of these rights in the field of labour where the holder of the rights is not the person as such but the person in the context of occupation, employment and work.

C. The Committee's conclusions

1. 559. The Committee notes that in this case the General Union of Workers of Spain (UGT) alleges that the new law on foreigners (Act No. 8/2000 on the Rights of Foreigners in Spain and their Social Integration) restricts foreigners’ trade union rights by making their exercise dependent on authorization of their presence or residence in Spain. The complainant also states that the lack of clear intermediate regulations is causing a sudden change in the law, meaning that foreigners are subjected to a much stricter regime and those who are in the process of applying for authorization will be deprived of the rights they enjoyed.
2. 560. The Committee also takes note of the Government’s statements, in response to the allegations of discrimination, to the effect that the law was amended not so much in order to distinguish the situation of foreigners from that of nationals as to establish a clear distinction between the so-called "legal" foreigners, who enjoy trade union rights on an equal footing with nationals, and "irregular" foreigners. The objective is to control migratory flows and combat the mafias who traffic in human beings and their subsequent exploitation at work by creating a clear distinction, in contrast to the earlier Act, between Spanish nationals and legal foreigners, on the one hand, and irregular foreigners, on the other.
3. 561. In the light of the above information, the Committee observes that the issue in this case consists of determining whether it is appropriate, as the complainant requests, to interpret broadly the concept of "workers" used in the ILO Conventions on freedom of association. In this context, the Committee recalls that Article 2 of Convention No. 87 recognizes the right of workers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. The only permissible exception to Convention No. 87 is that set out in Article 9 concerning the armed forces and the police. Thus, in the Committee’s opinion, Convention No. 87 covers all workers, with only this exception. Consequently, as concerns the legislation in question, the Committee requests the Government to take the terms of Article 2 of Convention No. 87 into account. It also emphasizes that unions must have the right to represent and assist workers covered by the Convention with the aim of furthering and defending their interests.