Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 354, Junio 2009

Effect given to the recommendations of the Committee and the Governing Body

1. 87. The Committee recalls that this case concerns Act No. 3371/2005 which enables employers/banks to unilaterally denounce collective agreements concerning the supplementary pension funds of bank employees, and then provides that the funds in question will be obligatorily integrated into a single public fund. The Committee last examined this case at its November 2008 meeting [351st Report, approved by the Governing Body at its 303rd Session, paras 73–77]. On that occasion, the Committee noted with regret that the issue had been pending since 2005 and any further delay in issuing a court decision was likely to make the resolution of the matter extremely difficult. Recalling, moreover, that a negotiated solution is always preferable to judicial proceedings or legislative intervention, the Committee once again strongly urged the Government to hold further full and frank consultations on the future of the supplementary pension funds of bank employees and of their assets so that these agreements by which the supplementary pension funds were set up, and to which only they contributed, and to amend Act No. 3371/2005 to reflect the agreement of the parties. The Committee also requested the Government to keep it informed of Decree No. 209/2006 (Official Gazette 209A) on “Determination of terms and conditions for the management of and dealing with issues relating to Supplementary Pension Funds of bank employees by the Unified Pension Fund of Bank Employees (ETAT)” and expressed the firm expectation that such decision would be issued without further delay.
2. 88. In a communication dated 20 February 2009, the complainant requests that the case be referred to the Committee of Experts on the Application of Conventions and Recommendations, adding that: (i) proceedings before the Greek Courts, including the Council of State are excessively long and could take up to 13 years, a fact for which Greece has been condemned repeatedly by the European Court of Human Rights; thus, by the time the Council of State may pronounce itself on this case, there is a danger that the assets of the supplementary pension funds will be depleted; (ii) the Supreme Court has found in decision No. 1603/2006, that collective agreements establishing the supplementary pension fund of the employees of Emporiki Bank can only be denounced with the joint agreement of both parties and not unilaterally, unless the parties explicitly allow for this possibility in the collective agreement; (iii) contrary to the Government’s assertions, every Court has the right to control the conformity of the laws to the Greek Constitution. All courts, at all levels and branches, are under an obligation, within the limits of their competence, not to apply a statute the content of which is contrary to the Constitution (article 93 paragraph 4 of the Constitution), This was the case with decision No. 116/2008 of the Single-Member Court of First Instance of Athens issued in a lawsuit against the Emporiki Bank. As mentioned in the previous examinations of this case, the Court found on that instance, that the unilateral denunciation of collective agreements was invalid, that the obligatory transfer of assets from a supplementary pension fund to the public funds was contrary to articles 4(1) and (2) and 5(1) of the Constitution and that the legislative intervention into this matter was not justified by reasons of general public or social interest; and (iv) the Government has not proceeded to any negotiations concerning the future of supplementary pension funds of bank employees and their assets, contrary to the Committee’s recommendations. On the contrary, it has passed further Acts by which additional supplementary pension funds were integrated into ETEAM and ETAT (3455/2006 (article 26), 3522/2006 (article 38), 3554/2007 (article 9) and 3620/2007 (article 10)). The complainant proposes the hosting by the Government of a high-level meeting, chaired by the Minister of Employment and Social Protection, with the participation of the Presidents or Managing Directors of the banks and representatives of the complainant Federation, so that, following frank and constructive dialogue, an agreement may be concluded on the reform of the legal framework.
3. 89. In a communication dated 4 March 2009, the Government indicates that consultations on the issue were interrupted following the refusal of banks’ representatives to participate and the refusal of the complainant federation to send written proposals for the amendment of the regulatory framework, as requested in order to help advance the process. However, the Government intends to invite the parties to a new round of consultation within the framework of the new social security reform process under way. Representatives of the Greek Ministry of Economy and Finance will also be taking part in the new consultations. Furthermore, with respect of the decision to be rendered by the Council of State, the Government indicates that decisions by that Court are issued approximately six months after the completion of the examination of the complaint. Thus, the Government cannot at this stage provide the Committee with relevant information. The Committee will be informed as soon as there is a development.
4. 90. The Committee notes that the complainant proposes the hosting by the Government of a high-level meeting, chaired by the Minister of Employment and Social Protection, with the participation of the Presidents or Managing Directors of the banks and representatives of the complainant Federation, so that, following frank and constructive dialogue, an agreement may be concluded on the reform of the legal framework. It also notes that the Government has the intention to invite the parties to a new round of consultations within the framework of the new social security reform process under way, with the participation of representatives of the Greek Ministry of Economy and Finance. The Committee expresses the firm hope that this new round of consultations will lead to a frank and constructive dialogue on all outstanding matters and give rise to the attainment of mutually acceptable solutions concerning the supplementary pension funds of bank employees.
5. 91. The Committee recalls that, during the previous examination of this case it had referred certain legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations. The Committee takes note of the request by the complainants and accordingly, draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the remaining legislative aspects of this case.