General 27 July 2010 English

United Nations E/C.12/DEU/5* Economic and Social Council Distr.: General 27 July 2010 English Original: French Committee on Economic, Social and Cultural rights Implementation of the Covenant on Economic, Social and Cultural Rights Fifth periodic report submitted by States parties under articles 16 and 17 of the Covenant Germany ** *** [16 September 2008] * Re-issued for technical reasons. ** In accordance with the information given to States Parties on the preparation of their reports, this document has not been reviewed by the Editing Section before transmission to the translation services of the United Nations. *** The annexes may be consulted at the secretariat. GE.10-46278 (EXT) E/C.12/DEU/5* Contents Paragraphs Page I. Introduction............................................................................................................... 1-2 3 II. Application of the Covenant in German domestic law ............................................ 3-42 3 III. Developments affecting the individual rights guaranteed by the Covenant ............ 43-368 10 A. General provisions of the Covenant................................................................. 43-76 10 Article 1. [Right of peoples to self-determination]........................... 43 10 Article 2. [Non-discrimination in the exercise of rights].................. 44-72 10 Article 3. [Equality between men and women]................................. 73-76 15 B. Individual rights guaranteed by the provisions of the Covenant..................... 77-368 15 Article 6. [Right to work] .................................................................. 77-114 15 Article 7. [Right to just and favourable conditions of work]............ 115-135 22 Article 8. [Right to take part in trade union activities] ..................... 136-145 26 Article 9. [Right to social security] ................................................... 146-209 28 Article 10. [Right of families, mothers, children and young people to protection and assistance] ............................................. 210-241 39 Article 11. [Right to an adequate standard of living].......................... 242-260 44 Article 12. [Right to health]................................................................. 261-310 48 Articles 13 and 14. [Right to education and compulsory, free-of-charge primary education] ............................................................ 311-364 58 Article 15. [Right to participate in cultural life and enjoy the benefits of scientific progress, and the right of authors to benefit from the protection of their interests]............... 365-368 69 2 GE.10-46278 (EXT) E/C.12/DEU/5* I. Introduction 1. The fourth periodic report of the Federal Republic of Germany was submitted in 1999. The Committee on Economic, Social and Cultural Rights considered the report on 24 August 2001 and summarized the results of its review in its concluding observations adopted on 31 August 2001 (E/C.12/1/Add.68). This fifth periodic report provides the following responses to the Committee’s observations. 2. The complex procedures for coordination between the parties involved in the process led to a series of delays, with the result that it was, unfortunately, impossible to submit the report earlier. To compensate for that time-lag, the report also contains statistics and other information detailing developments during 2006, 2007 and 2008. II. Application of the Covenant in German domestic law 1. Powers and responsibilities of the German national institute for human rights (Deutsches Institut für Menschenrechte - DIMR) (paras. 12 and 30) 3. The Federal Government would point out that the DIMR is based on the Paris Principles relating to the status and functioning of national institutions for the protection and promotion of human rights. Its role is not, however, to review complaints or undertake investigations. In Germany, it is the courts that have prime responsibility for looking into complaints alleging human rights violations. Pursuant to article 19, paragraph 4, of the Basic Law, any person whose rights have been violated by a public authority may have recourse to the courts. Furthermore, given that Germany is a party to the European Convention on Human Rights, applications may be made to the European Court of Human Rights. Against that background, Germany is not planning to extend the powers of the DIMR, as suggested by the Committee. 4. Moreover, the Federal Government would point out that the DIMR already carries out projects in relation to rights deriving from the Covenant; it states specifically on its website that the rights deriving from the Covenant and civil and political rights form an indivisible unit. That principle also guides the work of the DIMR which, therefore, gives the same consideration to economic, social and cultural rights as it does to civil and political rights. 2. References to the provisions of the Covenant in case-law (paras. 13 and 32) 5. The Federal Government wishes to point out that pursuant to article 5a, paragraph 2, of the German Judiciary Act (Deutsches Richtergesetz, DRiG), the bases of public law, including the relevant aspects of European and international law, are a compulsory component of legal studies, ensuring that future judges and prosecutors receive early and comprehensive training in human rights. 6. In addition, the German Judicial Academy (Deutsche Richterakademie) provides in- service training for judges in all jurisdictions and for prosecutors in their specialist fields, more particularly through the interregional in-service training workshops. Judges and prosecutors are thus able to be informed about and provided with empirical data on social, political, societal and economic developments: the May 2005 workshop on “Human rights and their significance for the justice system” is just one example here. GE.10-46278 (EXT) 3 E/C.12/DEU/5* 3. Taking the provisions of the Covenant into account in the formation of legislation and policy (paras. 14 and 32) 7. The Federal Government would point out in that connection that, in Germany, draft legislation and regulations are automatically reviewed in full before being passed, and their review includes consideration of the obligations under the International Covenant on Economic, Social and Cultural Rights, as well as other international commitments. The main guidelines applicable to the Federal Government are contained in the Federal Ministries’ Joint Rules of Procedure (Gemeinsame Geschäftsordnung der Bundesministerien). 8. In accordance with article 46 of the Joint Rules of Procedure, the Federal Government’s proposals are subject to legal scrutiny by the Federal Ministry of Justice. This includes, inter alia, a review of compatibility with higher-ranking law, that is to say constitutional law, European Union law and international law. If issues relating to human rights arise in the course of the review, they must be referred to the specialist unit dealing with human rights. All issues must have been resolved and all reservations set aside before the proposal is discussed in the Council of Ministers. The new, revised edition of the Handbook of Legal Drafting Conventions (Handbuch der Rechtsförmlichkeit), is currently being prepared, and particular attention will, for instance, be paid to the obligations arising from the United Nations covenants or from the European Convention on Human Rights. 9. However, other legal procedures also guarantee that human rights’ obligations under international law are respected. For example, according to the Federal Ministries’ Joint Rules of Procedure, a proposal must be the subject of general consultation within the Federal Government and with the Länder and municipalities affected. The economic, cultural and social aspects of proposals are reviewed by each of the relevant ministries which also take account, as part of the review process, of the Federal Republic’s obligations under international law and of any human rights’ implications. The relevant civil-society organizations and other interested parties have also to be consulted. 10. In addition to the system for generally reviewing draft legislation, there is also an arrangement for evaluating the consequences of a piece of legislation (art. 44 of the Federal Ministries’ Joint Rules of Procedure). This requires the federal ministry responsible for the draft legislation to assess the main consequences of the legislation, in concert with the various ministries responsible for the substance, thus evaluating both the desired effects of the legislation and any unintended incidental effects, and to detail those effects in the statement of reasons for the draft legislation. This will also include discussion of the consequences for the population in terms of economic, social and cultural rights, as well as any international repercussions. 11. A comprehensive and institutional “human rights impact assessment” is therefore de facto guaranteed. 4. Official development assistance - ODA (paras. 15, 31 and 33) 12. The Federal Government would point out that, since 2004, it has applied a policy based on human rights in the context of its development cooperation. That means that development cooperation is guided both by human rights and the principles that go hand in hand with human rights, namely participation, accountability, transparency, empowerment, equality and non-discrimination. 13. In addition, the Federal Government is using the 2004-2007 action plan for a development policy that promotes human rights, published, in 2004, by the Federal

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