The ECJ has ruled on a number of cases concerning the social policy arrangements of the Member States of the EU in relation to free movement. All EU Member States reimburse medical expenses that occur in another Member State as long as prior authorisation is given for foreign medical treatment or if the medical treatment is urgent. However, two cases, Decker[3] and Kohll[4], were considered exceptions to the rule by the Court. In the former, a Luxembourg national who purchased a pair of spectacles in Belgium was denied reimbursement for them on the grounds that he purchased them without prior authorisation from his sickness fund. The latter concerned another Luxembourg national whose daughter was refused treatment by a German orthodontist since the same could be provided in Luxembourg and the treatment was not considered to be urgent. Keeping in mind that barriers of this kind may be imposed in order not to harm the financial balance of the social security systems, the Court ruled that these two particular cases did not pose such a threat to national social security systems. Thus the principle of free movement prevailed.

The ECJ has also played a key role in defining the notion of EU citizenship before it was mentioned in the EC Treaty.[5] It has done this through extending the principle of non-discrimination based on nationality, which was originally intended for the protection of workers and freedom to provide services. The Court has extended this principle to include the benefits of social security in relation to free movement and also to include those who are not the providers of services, but recipients of services. This was done for the first time in the case of Ian William Cowan v. Tresor Public[6]. This case concerned a British citizen, Mr. Cowan, who had been attacked at the exit of a metro station in Paris. Mr. Cowan had not gone to France as a worker or as a provider of services and since his attackers were not identified he was not eligible to receive compensation for his physical injury. Nevertheless, the Court decided that even foreign recipients of services are entitled to the same treatment as the Member State’s nationals.

However, the ECJ has not only extended “circle of beneficiaries as to include other EC nationals but has also broadened the ambit of national social rights to non-EC nationals and thereby moved beyond European citizenship.”[7] This refers to migrant workers whose native countries have association agreements with the Community, but even here the ECJ has extended the scope of the agreements. In Henia Babahenini v. Belgium[8], the wife of a retired Algerian worker was denied a disability allowance in Belgium, as she was not a migrant worker herself. The Court rules that the agreement between the Community and Algeria did also include the members of the family of the migrant worker.

The above examples of the ECJ’s case law serve to depict its socially activist role. Moreover, it is clear that many of the socio-economic rights included in the Charter of Fundamental Rights of the EU have already been established in the case law of the ECJ. It is stipulated in Article 52 (2) of the Charter that rights based on EC Treaties or the TEU are subject to the conditions and limits outlined in those Treaties. Thus, the Charter cannot either widen or reduce the scope of those rights. Nevertheless, in fulfilling its primary duty of making rights more visible to EU citizens, the Charter undoubtedly signals an advance in the public awareness of those rights that have already been established in the case law of the ECJ.

The treaty bodies, or conventional mechanisms, have been established to monitor the implementation of the provisions of the six main human rights treaties. The six conventional mechanisms are the Human Rights Committee (HRC), the Committee on Economic, Social and Cultural Rights (CESCR), the Committee on the Elimination of Racial Discrimination (CERD), the Committee on the Elimination of Discrimination Against Women (CEDAW), the Committee Against Torture (CAT), and the Committee on the Rights of the Child (CRC). All the Committees consider periodic reports by State parties and four Committees are authorized to consider complaints from individuals. “In the case of many States these procedures provide the only avenues of international redress for individuals.”[1]

The HRC has been set up to monitor the implementation of the International Covenant on Civil and Political Rights, when the Covenant entered into force in 1976. It is composed of 18 independent experts and under the First Optional Protocol, which entered into force together with the Covenant, it is able to consider individual complaints with reference to violations of their civil and political rights. The State parties are under obligation to submit to the HRC periodic reports, which “should indicate measures adopted to give effect to rights in the Covenant and on the progress made in the enjoyment of those rights.”[2]

The CESCR deals with the International Covenant on Economic, Social and Cultural Rights and was established by the Economic and Social Council (ECOSOC) in 1985. It consists of 18 independent members which are elected by and report to the ECOSOC, unlike the other Committees. “The obvious benefit of being a subsidiary organ of ECOSOC is that the Committee maintains a significant degree of autonomy from the State parties.”[3] However, the Committee was primarily intended to assist ECOSOC in the consideration of reports and as such is itself subject to the changes within ECOSOC.[4]

The CERD monitors the implementation of the International Convention for the Elimination of All Forms of Racial Discrimination and is also composed of 18 independent experts. Under article 14 of the Convention, the Committee has the capacity to consider communications from individuals. The CEDAW consists of 23 independent experts and monitors the Convention for the Elimination of All Forms of Discrimination Against Women. It also accepts communications from individuals under the Optional Protocol to the Convention. The CAT has been established to monitor the observance of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. There are 10 members in the Committee. Under article 22 it considers communications from individuals. The CRC monitors the implementation of the provisions of the Convention on the Rights of the Child and is also composed of 10 members. It, like the CESCR, is not authorized to consider complaints from individuals, but its activities include thematic examinations on specific issues and regional and subregional missions by its members.[5]

The Special Procedures of the CHR, or extra-conventional mechanisms, in which individual experts operate as Special Rapporteur, Independent Expert, Representative or members of a Working Group, provide for a more flexible response to human rights violations than the Committees, due to the ad-hoc nature of this system.[6] Under this system, the individual experts examine and report to the Commission either the human rights situation in a specific country or territory or on a specific theme that is seen as a threat to human rights globally. Thus, they are divided into country mechanisms and thematic mechanisms. Nearly 50 of these country and thematic mechanisms have been established and function as an important system, although not initially intended as one, for human rights protection worldwide. This importance may be depicted by the fact that the reports of the independent experts sometimes “bring to the attention of the international community issues that are not adequately on the international agenda.”[7]

So far there have been 20 country mechanisms set up which monitor the human rights situations in specific countries, as well as a Special Committee which investigates the Occupied Territories. Some of the thematic mechanisms that have so far been established deal with issues such as arbitrary detention, the right to development, disappearances, religious intolerance, etc.