25 September 2018
The Committee on Economic, Social and Cultural Rights today examined the sixth periodic report of Germany on measures taken to implement the provisions of the International Covenant on Economic, Social and Cultural Rights.
Presenting the report of Germany, Björn Böhning, Permanent State Secretary at the Federal Ministry of Labour and Social Affairs, noted that since Germany’s last review in 2011, much had changed, both in Europe and globally, “and not always for the better”. Often, there were no quick and easy solutions, he said, and sometimes there were severe practical difficulties – such as the arrival to Germany of a large number of refugees in 2015 and 2016 – but human rights must remain the decisive criterion and the objective of Governments. The questioning of multilateralism and its institutions was of a great concern to the German Government, he said, and reiterated his country’s determination to defend the achievements of the United Nations and the human rights system, and to strengthen the United Nations in this period of rising populism and nationalism. Turning to the measures taken by the new coalition Government, the State Secretary highlighted the decision in May 2018 to spend €2 billion in 2020-2021 on social housing; create 13,000 new carer positions in hospitals; and, in the fight against child poverty, to focus on single parents and families with multiple children.
In the dialogue that followed, Committee Experts discussed at large Germany’s international obligations and commitments in a range of fields, from official development assistance, to mitigating climate change, to agricultural policy and arms exports, and the human rights due diligence of its companies operating abroad. In that vein, the Experts remarked that according to the 2015 data, Germany had failed to meet the target of spending 0.7 per cent of its gross national income on foreign aid, and that it was also not likely to meet the targets under the Kyoto Protocol to reduce the greenhouse gas emissions. However, they noted Germany’s ambitious national plan to meet its 2030 targets of reducing the emissions by at least 55 per cent, and asked whether Germany was ready to convert this domestic target into an international commitment under the Paris Climate Agreement. Experts were concerned about the impact of the Common Agricultural Policy of the European Union on low-income and food-insecure countries, and asked about specific proposals that Germany could make towards monitoring and assessing is impact, to ensure that it served as a true instrument of poverty eradication and sustainable development. Germany was a party to the Arms Trade Treaty, Experts remarked, asking how the lessons learned from risk assessments carried out by previous Governments were integrated into the process of granting new licenses for arms exports. In the domestic sphere, Experts asked about the impunity of churches in matters of discrimination on the grounds of religion or sexual orientation and gender identity, integration of newcomers and family reunification of refugees, and the plans to fill the skilled labour gap of 1.2 million jobs.
Sabine Baun, Director of International Policy and Social Employment at the Federal Ministry of Labour and Social Affairs of Germany, in her concluding remarks, said that Germany would focus on addressing child poverty, the right to affordable housing, and long-term care.
Chandrashekhar Dasgupta, Committee Rapporteur for Germany, concluded by commending Germany for setting, for herself, the highest standards in the area of human rights, which was why its performance was assessed in such a detail.
Maria Virginia Bras Gomes, Committee Chairperson, in her concluding remarks, said that the Committee was looking forward to Germany’s ratification of the Optional Protocol.
The delegation of Germany consisted of representatives of the Federal Ministry of Labour and Social Affairs; Federal Ministry for Family Affairs, Senior Citizens, Women and Youth; Foreign Office; Federal Ministry of Health; Federal Ministry of the Interior, Building and Community; Standing Conference of the Ministers of Education and Cultural Affairs of the Länder in the Federal Republic of Germany; Ministry of Labour, Health and Social Affairs of the State of North Rhine-Westphalia; Association of German Cities; as well as representatives of the Permanent Mission of Germany to the United Nations Office at Geneva.
The Committee will next meet tomorrow, 26 September at 10 a.m. to consider the initial report of Mali (E/C.12/MLI/1).
The Committee has before it the sixth periodic report of Germany (E/C.12/DEU/6).
Presentation of the Report
BJÖRN BÖHNING, Permanent State Secretary at the Federal Ministry of Labour and Social Affairs of Germany, in the introduction of report said that since Germany’s last review in 2011, much had changed, both in Europe and globally, “and not always for the better”. The questioning of multilateralism and its institutions was of great concern to the German Government, he said, as it seemed that the values of the United Nations were no longer obvious: the dialogue of equals, the common search for solutions, and the protection of inalienable rights – all those allowed for a peaceful coexistence with clear rules. Reaffirming Germany’s commitment to the multilateral system, Mr. Böhning stressed that the respect for human rights, including economic, social and cultural rights for all, was not negotiable, but was the responsibility of each State.
Often, there were no quick and easy solutions, and sometimes there were severe practical difficulties – such as the arrival to Germany of a large number of refugees in 2015 and 2016 – but human rights must remain the decisive criterion and the objective of Governments. For its part, Germany was determined to defend the achievements of the United Nations and the human rights system, and to strengthen the United Nations in this period of rising populism and nationalism, insisted the State Secretary. Internationally, Germany advocated for human rights and acknowledged the importance of economic, social and cultural rights, and had made human rights the guiding principle of its international cooperation. Nationally, Germany was working to implement all human rights, together with its social partners and civil society, whose input was very much valued. Legally speaking, continued Mr. Böhning, Germany had no differences with the Committee, whose interpretation of the Covenant might differ. Germany had shown political will to ratify the Optional Protocol on Communications, and while hoping to do so in the current Parliament, this had to be discussed with all stakeholders, including the 16 Länder.
Turning to the measures taken by the new coalition Government, the State Secretary highlighted the decision in May 2018 to spend €2 billion in 2020-2021 on social housing, which would be accompanied by strengthening the rights of tenants in the rental market, and increasing allocations to households in need. In the area of health care, the Federal Government had decided to create 13,000 new carer positions in hospitals and double the benefits in long term care insurance, and was working on improving the framework conditions for care givers. Regarding child poverty, the focus was on single parents and families with multiple children, and there was also a commitment to improve the provision of participation benefits for young children. In conclusion, the State Secretary acknowledged that the implementation of the International Covenant was an ongoing task and reiterated Germany’s commitment to this instrument.
Questions by the Country Rapporteur
CHANDRASHEKHAR DASGUPTA, Committee Rapporteur for Germany, asked about the latest position concerning the ratification of the Optional Protocol on communications, or individual complaints, and noted that, according to the latest figures available, which were from 2015, Germany failed to meet the target of allocating 0.7 per cent of its gross national income to official development assistance.
The Rapporteur asked whether the anti-discrimination legislation was effective in preventing churches to discriminate on the grounds of religious beliefs, in particular in recruitment for non-ecclesiastic positions in church-run institutions, such as schools, hospitals, or nursing homes. Was it effective in preventing discrimination by churches against employees who contracted same-sex marriage? Churches in Germany enjoyed impunity in respect to anti-discrimination legislation, noted the Rapporteur, asking whether Germany considered this as a violation of its obligations under the Covenant.
On measures to mitigate climate change, Germany was likely to fail it targets under the Kyoto Protocol to reduce the green-house gas emissions by 40 percent by 2020, which was meant to be achieved over a period of thirty years. However, Germany was developing a national plan to meeting its 2030 targets of reducing the emissions by at least 55 per cent, which included phasing out coal. Was Germany ready to convert this domestic target into an international commitment under the Paris Agreement, and inscribe it as a nationally determined contribution under this treaty?
The Rapporteur then addressed the Common Agricultural Policy of the European Union, and particularly on the monitoring and assessing its impact on low-income and food-insecure countries, and asked Germany how it objectively determined that this Policy was consistent with poverty eradication and sustainable development targets of the European Union. What specific proposals Germany could make towards impact monitoring and assessment?
The Rapporteur questioned the issue of data exclusivity provisions included in the European Union preferential trade agreements, noting that Germany required a new set of tests to be passed when generic drugs were introduced, even if those drugs were identical to the patented drugs they were replacing. The additional tests did not have scientific merit, and simply served to delay the introduction of cheaper generic drugs, he insisted.
Response by the Delegation
Responding to the questions raised, the delegation reaffirmed the political will of Germany to ratify the Optional Protocol on individual communications, which would take some time. The right of civil servants to strike remained an outstanding issue for Germany, he said, adding that this was the sort of issue that would need to be discussed between the Federal and State Governments before the process could be finalized.
In 2016, Germany had reached the target of 0.7 per cent of gross national income for official development assistance for the first time, he said, adding that although more money was being spent, the target would not be reached in 2017 due to additional spending on refugees within Germany. The figures for 2018 could not be finalized until gross domestic product figures were confirmed.
Regarding anti-discrimination laws, churches were bound by the German basic law, which they must uphold, and were allowed to require their own employees to conform with their own self-image. As such, Churches could determine whether applicants for certain jobs must be from a specific religion, and this self-determination remained contentious. However, German courts were considering how to review these provisions in the light of ongoing court challenges domestically and at the European Court of Justice.
The delegation acknowledged that indeed Germany would not reach its Kyoto Protocol targets, and reiterated the commitment to the Paris Climate Agreement, including by raising its contribution to the Green Climate Fund by additional €750 million. A commission had been set up to considering the approach to phasing out coal, whilst giving due consideration to maintaining jobs.
On generic medicines, the delegation explained that laws governing the Supplementary Production Certificate (1992) which allowed for the extension of patents was the European Union Regulation, which was uniformly implemented across the European Union. However, the issue was currently being negotiated by the rotating presidency of the European Union, so Germany would be in a position to give an update on this early next year.
Questions by Committee Experts
Committee Experts noted that the ratification of the Optional Protocol on individual communications could be was a test case for the country’s commitment to the Covenant itself, and said that until Germany adopted it, the Committee would remain anxious about its broader commitments. Questions were also asked about the extent of Germany’s success in integrating newcomers to Germany.
The issue of human rights due diligence was raised, with Experts asking whether Germany considered it acceptable that German companies did not apply human rights due diligence in their work or in their broader supply chains, given that the current requirements were voluntary.
Concerning arms exports, Experts noted that Germany was a party to the Arms Trade Treaty, which required a risk assessment for all exports. Acknowledging Germany’s announcement that it would not grant new licenses to export arms, Experts asked about lessons learned from past risk assessments carried out by previous governments.
In respect of its role in the International Monetary Fund and the European Stability Mechanism, Experts asked what the responsibility of Germany was in guaranteeing economic, social and cultural rights in countries that faced financial constraints, such as Greece.
CHANDRASHEKHAR DASGUPTA, Committee Rapporteur for Germany, complimented the delegation on their candour in responding to the questions, and asked for clarifications concerning the intentions to turn the domestic 2030 commitment into an international, binding target under the Paris Accord. On the issue of data exclusivity and generic medicines, he clarified that he was referring to the attempt by the European Union to compel third countries to accept those exclusivity assessments when signing trade agreements with the European Union.
Response by the Delegation
The question of integration of refugees, the delegation said in its responses, was fundamental insofar as it was clear that a large number would not return home. The Federal, regional and municipal Governments needed to coordinate and agree a large-scale response. Language classes and education on German administrative procedures were prioritized: refugees received 600 hours of German language courses and were also informed of the legislation concerning them. Inclusion measures, which might differ from one Länder to another, were implemented in reception centers, and integration services were tailored to each individual. Two-year vocational courses were offered, including to those who intended to return to their country. Social and cultural integration was likely to take several years, and in some cases, an entire generation, the delegation said.
Responding to question on human rights due diligence, the delegation said that currently, Germany had adopted a target of 50 per cent of companies with more than 500 employees to have such a framework in place. The target was being monitored and by 2020 the Government would take further action on companies that did not meet the target. So whilst it was a voluntary framework, Germany would follow-up with those who failed to comply, the delegate said, reminding that the issue of businesses and human rights had been placed on the agenda of the G7 and G20 during German presidencies.
The final destination of all arms exports was known in instances where export licenses were granted, insisted the delegation, explaining that export licenses were not granted if there was any doubt as to the final destination of a shipment. In 2017, the delegate said, the license had not been granted in 89 applications. Germany also was one of the few countries to carry out inspections abroad.
Germany had in 2017 introduced a marriage equality law, while a law was being drafted on introducing a third gender for those that do not associate with the male or female identity.
The loans by the International Monetary Fund and the European Stability Mechanism were underpinned by a Memorandum of Understanding, which took into account the European Social Charter. A debate was underway in Germany on the nature of future assistance to Greece, so it was not possible for the delegation to provide more information on this.
On the issue of the approval of new generic drugs, the delegation explained that all documentation submitted by applicants were checked by the European Medicines Agency with a view to ensure patients’ safety. Therefore, the issue was under the competence of the European Union.
The reunification of Germany had been an undoubtedly positive event which had made two States one nation, the delegation said, noting that Germany had been reunified for longer than the Berlin wall had been in place. A report on the social progress made since the reunification would be made available after its ratification by Parliament. It was clear, however, that reunification was not yet complete, particularly in terms of infrastructure and underdevelopment in the eastern part of Germany. While some regions had made significant progress, especially around Dresden, this was not the case everywhere. Eastern Germany was also lagging behind in terms of its health facilities and structures. It must be borne in mind, however, that Western regions were also affected by development problems, particularly those that depended heavily on coal mining. The development of economically backward regions was, therefore, a subject that concerned the whole Federation, in both East and West.
Questions by the Country Rapporteur
In the next round of questions, Committee Experts remarked that the skilled labour gap in Germany was currently 1.2 million jobs, and noted that non-European Union professionals who sought jobs in Germany did not have access to welfare rights. Would Germany be carrying out a human rights assessment on the impact of this restriction on the welfare of those looking for work? The Committee was concerned by the increase in the number of companies without a single employee with severe disabilities, and asked what was being done to address the issue.
The number of temporary agency workers in Germany had reached one million and was increasing, the Expert said, noting with concern that, during the first nine months of employment, agencies could deviate from the rules on equal pay, to the detriment of the employees. Was this really the case? What was being done to reduce the gender pay gap by 2020?
What sort of protest was available to civil servants, short of going on strike?
The delegation was asked to explain the question of suitable employment under the Social Code, and whether a person on social assistance was obliged to accept employment that was below their qualifications, and whether they had to accept a job that would require them to move. Could the delegation provide more information about education classes given to refugees and migrants on cultural values, and explain what constituted “cultural values”? What was the situation concerning the reform of informal and illegal employment?
Response by the Delegation
Responding to the question raised on the restriction in access to welfare, the delegation explained that the European Union’s freedom of movement rules granted far-reaching labour mobility rights, and stressed that Member States could exclude certain people from receiving welfare benefits. However, emergency provisions were not withheld and municipal structures were in place to provide welfare support as well.
On the employment rights for people with severe disabilities, Germany was close to meeting its official target, and the companies that did not meet the target faced a levy, which was used to support integration of persons with disabilities.
With regard to precarious work or temporary agency work, the delegation pointed out that some seven million such workers received social benefits, and that some of those jobs were bridges to more stable contracts. The minimum wage was set by an independent commission and re-evaluated every five years. There were about two million workers in the country who did not benefit from the social protection system; to remedy this, an obligation to purchase private insurance would be introduced. The Government would also combat the phenomenon of bogus self-employed workers who were, in fact, employed by digital platforms. The possibility of linking the number of fixed-term contracts indefinitely would be reduced.
There was an ongoing debate about gender gap in pay and pensions, especially in cases where a tax payer-funded pension scheme was not an option. The female occupancy rate was 77 per cent, a share that the Government intended to increase, notably by encouraging a decrease in part-time work in favor of full-time work, particularly considering the impact on the pension levels of a large number of women who have interrupted their careers to raise their children or who have chosen to work part-time.
Trade union membership was in decline, said the delegation, which meant that the collective bargaining power was declining too, and the impact might be particularly acute for workers in the social care sector. Whilst the strike of civil servants was outlawed, they were members of trade unions, which could enter into extensive consultations with the State before any changes were made to employment conditions.
Questions by the Committee Experts
Continuing the dialogue, the Experts raised the issue of family reunification, which after having been suspended had recently been reinstated, with a quota of 1,000 persons per month, asking how allocation was being implemented. What motivated the switch from paying benefits in cash to paying them as benefits in kind, for asylum seekers in detention centres?
Financial commitments to housing from Government budgets had decreased by 83 percent between 2006-2016, and it was estimated that there were 1.2 million homeless persons in the country. What were the reasons for such reductions in spending on housing, and how such policies fit with Germany’s commitment to the Covenant?
The Experts discussed the plight of undocumented migrants seeking access to healthcare in Germany, and in particular, they questioned the requirement on health care providers to report undocumented migrants seeking care to immigration authorities.
Response by the Delegation
With regard to the rules on suitable employment, the delegation clarified that job seekers were not forced to move to other parts of the country to accept work, and were not financially penalized for not moving. Germany did not recognize illegal work, but informal work did exist and additional resources were being provided to fight this.
The new regime on family reunifications allowed the entry of 1,000 people per month, the delegation said, adding that, under the Residents Act, people could move to Germany in case of emergency. The quota was based both on the capacity of embassies in foreign countries to deal with applications, and the Germany’s capacity to accept more newcomers. When deciding who was allowed to enter, the wellbeing of children and integration potential played a major role.
The decision to switch benefits away from cash varied from state to state, and took into account personal circumstances, such as whether recipients lived in private accommodation or not. The provision of health services to migrants without residency rights was indeed a complex situation, the delegate said, rearming that the laws applied to everybody. Regulations were in place that allowed doctors to treat people with acute medical conditions, without the obligation to report the immigration status of their patients.
The fight against child poverty was a priority of the new coalition Government. Nearly 600,000 children – out of 1.7 million school children – benefited from education assistance grants out, and family allowances will be revalued. Responding to questions about child nutrition, the delegation said that often, the problem was not so much the absence of a meal but dietary imbalance. While parents were primarily responsible for good nutrition of their children, care was nevertheless taken to ensure that canteens in schools and crèches responded as effectively as possible to deficiencies.
On social housing, the delegation said that the situation varied across the country, and explained that at the beginning of the 2000s, the forecasts had shown a contraction in housing demand, and it had thus appeared at the time that it would be sufficient to maintain or renovate existing housing. In fact, urban areas continued to expand as a result of internal influxes and from abroad. The Federal Government had made more than €1.5 billion available to regional governments to build new housing units, however, due to the restrictions on building permits, particularly on lots in urban areas, lack of availability of construction workers, and other constraints, the social housing stock could not increase exponentially. The fall in the budget could be explained by the privatization of a part of the social housing sector, as well as by the delegation of competences to the Länder in terms of social housing.
The delegation could not confirm that 1.2 million people were homeless, stressing that there many classifications and definitions of homeless persons, for example people living with friends, rather than on the street.
Committee Experts asked about on access to justice in German courts by those suffering as a result of actions of German companies abroad, and commented in particular on the lack of access to class action suits and financial support for claimants during the legal proceedings.
The minimum wage was set at €8.50, Experts noted and asked about loopholes in the employment law which allowed many employers to pay less than the minimum wage. As for domestic workers, the delegation was asked to provide the current definition and measures to increase their access to trade unions and other forms of support.
On the issue of care, the delegation was asked whether Germany intended to change its policies in order to encourage care for more people in their homes. Questions were also asked about the reasons for the shortage in carers in Germany, and whether this was due to low pay. The Experts were very concerned that unnecessary operations continued to be performed on intersex children and asked what was being done to prevent such medical interventions taking place.
The Committee discussed the high instance of energy poverty in Germany, and the problems this caused, given that energy was essential to many Covenant rights. What measures were in place to subsidize energy bills, or provide vouchers to enable households to purchase energy efficient products?
Responses by the Delegation
The delegation explained that access to justice was available to non-nationals who suffered as a result of actions by German companies, including legal aid, but Germany did not wish to consider introducing laws on collective action suites.
One study had found that 750,000 workers were receiving salaries below the minimum wage in 2017, said the delegation, noting that the minimum wage had been only introduced recently, with a review of the implementation of the legislation expected within two years. A thorough evaluation would be carried out in 2020 to allow for a better assessment of its application. Until then, the State would increase its enforcement of the minimum wage and take action against companies that did not comply with the law. The employees themselves could complain, the delegate said, all the while recognizing the complexity of the issue, especially for domestic workers who had a close relationship with their employer. In addition, measures were being taken against undeclared work.
Domestic workers enjoyed the same labour protections that all other workers enjoyed, from health coverage to the minimum wage.
Regarding the skilled labour gap, Germany did not intend to recruit 1.2 million missing workers from abroad, although certain sectors would require the hiring of non-nationals, particularly in the care sector. In doing so, Germany would abide by the guidelines of the World Health Organization and not recruit from countries that suffered their own shortage in that sector.
The Government aimed to increase the number of people who were cared for in their own homes, a delegate continued, noting that the demand for carers was greater than supply. Not intending to fill the shortage through immigrant workers, the Government considered filling at least the part of the gap by increasing the occupancy rate of carers, since 80 per cent were currently working part-time.
Data on surgeries performed on intersex children were not being collected, but the Government had agreed that medical intervention could only be carried out if there was a risk to the child’s life or health, and would bring forward such legislation.
In responding to questions regarding foreign speculation on housing, the delegation explained that no data was collected on the nationality of investors buying up properties in Germany. On energy poverty, certain loans were available to cover energy debts, and social assistance was available for those who could not pay their energy bills.
Questions by the Committee Experts
In the final cluster of questions, the Experts noted that the orientation level and the specific choice of schools remained open until the end of sixth grade, when the pupils earned their right to attend gymnasium and non-gymnasium type of school. The existing education system had targeted and individual support that could also be seen as discriminatory since more and more children left school without proper education. The risks of dropping out was twice as high for migrant children than for those of German origin.
What measures had been taken at federal level to remove those differences and to unify the rules governing access to education without any obstacles made at the state level?
Germany was a party to the Convention on the Rights of Persons with Disabilities, and yet the number of children with disabilities not included in mainstream education remained high. One of the reasons that teachers in the East were less qualified than in the West was because they were paid less – what was being done to address this?
The Experts noted that only the recognized minorities could enjoy cultural rights and asked about the criteria for their recognition and whether it was possible to appeal non-recognition decisions.
Response by the Delegation
Responding, the delegation said that the shocking results of the Programme for International Student Assessment (PISA) had shown to Germany how different the quality of education in different federal states was. The situation had very much improved and the individual promotion of every child had become the central aspect of education, as well as the education of teachers and cooperation with the parents. The number of dropouts had been clearly reduced, school attendance had improved, and it was now easier to make a transition from one school to another. All day school programmes were increasingly being available in Germany and they were the responsibility of the Federal Government.
The federal states were doing their outmost to lead their students to the best degree possible. Every type of secondary school allowed the opportunity to finish the school and in the last decade more and more students strived for higher school certificates, which were now held by over half the country’s population.
When it came to children with migrant background, their lower performance was also the question of their social origin. There were several programmes that aimed at improving their situation, from improving their language capabilities to strengthening cooperation with their parents, which also made school transitions easier.
Germany aimed to halve the number of school dropouts – the target had not yet been reached, but the progress was evident. The inflow of refugees in 2015 and 2016 had contributed to the increase in the number of dropouts. There was a programme for poor performance which contained different measures to support students in achieving at least secondary level of education.
The Ministry of Labour had launched several programmes in cooperation with job centres and other stakeholders to improve the skills, including language skills, of migrants and refugees, since the knowledge of German was crucial for improved education outcomes and future employment. Refugee children entered the mandatory education only after they had left reception centres, until then, classes were organized by teachers in the reception centres.
On inclusive education, all children of school age had to attend school. Once the Convention on the Rights of Persons with Disabilities had been adopted, the schools had adapted and more than 2,000 children with disabilities had been attending regular schools in 2016/17. On the other hand, there were still parents who preferred for their children with disabilities to attend special schools, as they considered them better equipped to provide education to their children.
With regards to cultural rights of non-recognized national minorities, the delegation mentioned programmes in the media, for example, Deutsche Welle had programmes dedicated to minority languages which were financed by the Federal Government. The law on the recognition of national minorities dated back to 1997, said the delegation, which defined the criteria for recognition, including the long-time presence in Germany and own language and identity preserved. The right to culture was guaranteed by the Constitution.
SABINE BAUN, Director of International Policy and Social Employment at the Federal Ministry of Labour and Social Affairs of Germany, in her concluding remarks, recognized that the implementation of the International Covenant on Economic, Social and Cultural Rights was an ongoing task since new challenges continually came up. Child poverty, the right to affordable housing, and long-term care were the areas that would be particularly addressed, said Ms. Ebert, reaffirming that the ratification of the Optional Protocol had political backing of Germany.
CHANDRASHEKHAR DASGUPTA, Committee Rapporteur for Germany, concluded by commending Germany for setting, for herself, high standards in the area of human rights, and said that this was the reason why its performance was assessed in such a detail.
MARIA VIRGINIA BRAS GOMES, Committee Chairperson, in her concluding remarks, thanked the delegation of Germany and said that the Committee was looking forward to its ratification of the Optional Protocol.
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