The European Social Charter: Last resort against probationary period in the permanent contract to support entrepreneurs?

Abstract

The labour reform passed in 2012 involved, among others, the creation of an indefinite contract to support entrepreneurs. The most controversial aspect of its regulation is the provision of a one year probationary period, granting the employer a wide freedom to fire the employee. The European Committee of Social Rights has declared that such regulation is contrary to the European Social Chart, due to the absence of a period of notice during the probationary period. The violation of the Chart has been the argument used by several judiciary bodies to consider the regulation of the probationary period not to be enforceable, for being contrary to a higher rule of law. However, other courts consider that it is not possible not to apply the internal law because the breached provision of the European Social Chart is not directly enforceable and because the conclusions of the Committee are not mandatory.