ALMACENAMIENTO SEGREGACIÓN

Article 12 deals with the substance of social security systems in the contracting parties. Firstly, it obliges the contracting parties to establish a social security system327. It then sets minimum standards for this system, these standards relate inter alias to the coverage of the system, the conditions of entitlement to benefits and the amount of benefits328. It further states that every contracting party bound by Article 12 must endeavour to progressively improve its system of social security329.

As far as social security co-ordination is concerned Article 12 provides in paragraph 4 for the basic principles of equal treatment, exportation of benefits and the aggregation of insurance periods. Contracting parties must take steps to ensure these basic principles through bilateral and multilateral agreements or “by other means”.

Personal scope: whereas Article 12(1) to (3) apply only to nationals of other contracting parties who are lawfully resident or working regularly within the contracting party’s territory, Article 12(4) is applicable to all nationals of the other contracting parties330. It is important to note that the coverage of Article 12 is not based on reciprocity. The reader will recall that the European Social Charter and the Revised Social Charter are ‘menu type instruments’. This means that some contracting parties have accepted the provisions of Article 12 whereas others have not331. The fact that Article 12 is not based on reciprocity

326

See section 3.2.2 of this Short Guide

327

Article 12(1) European Social Charter/Revised Social Charter

328

Article 12(2) European Social Charter/Revised Social Charter

329

Article 12(3) European Social Charter/Revised Social Charter

330

See Appendix to the European Social Charter and the Revised Charter dealing with the “Scope of the Charter in terms of persons covered”. The Appendices also provide that refugees and stateless persons legally residing within the contracting party should be given treatment that is as favourable as possible.

331

A list of signatures and ratifications to the European Social Charter and the Revised Social Charter and its Article 12(1) to (4) and Article 13(1) to (4) as of 1st September 2003 is attached (Appendix II). For the actual list as well as the references to the texts of the European Social Charter and Revised Social Charter see Appendix I.

means that the protection offered under Article 12 cannot be refused because the person concerned comes from a contracting party that has not adopted that Article. This applies even in respect to Article 12(4)332.

Equality of treatment: the principle of equal treatment enshrined within the European Social Charter and the Revised Social Charter is intended to eliminate both direct and indirect discrimination333.

The prohibition of direct discrimination therefore prevents contracting parties paying a benefit to its own nationals but refusing to pay the benefit to a national from another contracting party. Contracting parties are also prevented from imposing extra conditions of entitlement on foreigners who are covered by the European Social Charter or Revised Social Charter, e.g. by requiring that all foreigners complete an additional period of insurance before they receive any benefit. Direct discrimination would also involve paying foreigners less because they are not nationals of the contracting party.

The European Committee of Social Rights pays close attention to ensuring that even those measures which appear to affect both foreigners and nationals do not, in fact, have a greater proportional affect on foreigners. In order to do this it will take into consideration statistical data concerning migrants. One example of indirect discrimination that has been the topic of considerable debate with regards to the European Social Charter and the Revised Social Charter has been the requirement by many contracting parties that child benefits will only be paid to children who reside within their territory334. The European Committee of Social Rights has consistently found this practice to be indirect discrimination in that foreign nationals are more likely to have family members living abroad335, but in these cases the rate of those benefits may be adjusted in order to reflect the standard of living in the contracting party where the children are living336.

Despite their strict approach to equal treatment on the grounds of nationality the European Social Charter and the Revised Social Charter do allow states to impose minimum periods of residence for foreigners before entitlement is granted to non-contributory benefits337. This conditional equality of treatment may also be found in the Interim Agreements and the European Convention on Social Security.

Where contracting parties to the European Social Charter and the Revised Social Charter impose such residence conditions the European Committee of Social Rights will investigate whether or not the period required to proportional to the reason why such a condition is imposed. Contracting parties that operate residence requirements of this kind are therefore obliged to explain why such a requirement is needed and why it has to be that long. The European Committee of Social Rights has used the periods prescribed in the Interim Agreements and the European Convention on Social Security as a guide but it insists on

332

See general observations of the European Committee of Social Rights with regard to Article 13(4) of the European Social Charter, Conclusions VII, p. 77 and General Introduction to Article 12(4) in the Conclusions XIII-4, p.54

333

See section 1.4.1 of this Short Guide for a definition of these terms

334

This issue has appeared consistently within the Conclusions of the Committee since supervision cycle XIV

335

General Introduction to Conclusions XIII-4, p. 44 and XVI-1, pp. 9 and 10

336

General Introduction to Conclusions XIII-4, pp. 44 and 45

337

assessing each contracting party on the facts. It has even indicated that the periods laid down in the Interim Agreements are very long338.

Exportation of benefits: the European Committee of Social Rights has concluded that the principle of exportation will apply in relation to benefits for old age, invalidity, survivors as well as pensions for occupational injuries and diseases and death grants. This means that the export of these benefits should not be refused or made subject to conditions339. The application of this principle in relation to other benefits, especially unemployment benefits and sickness cash benefits will be assessed on a case by case basis taking into consideration the special features of these schemes340.

Aggregation of qualifying periods: the contracting parties are asked to comment in their national reports on if and to what extent they take into consideration qualifying periods completed in other contracting parties, especially in relation to nationals of contracting parties that are not covered by the European Union Co-ordination Regulation 1408/71.

The inter-relationship between Article 12 of the European Social Charter/Revised Social Charter and the co-ordination instruments of the Council of Europe: as explained above the co-ordination instruments of the Council of Europe are taken into consideration by the European Committee of Social Rights when assessing compliance with the European Social Charter and the Revised Social Charter. However, the mere fact that a contracting party has ratified the Interim Agreements or the European Convention on Social Security is not sufficient in itself to guarantee compliance. The European Committee of Social Rights will look carefully at the actual situation in each contracting party before arriving at its conclusions. It has indicated that the Interim Agreements are not sufficient for the implementation of Article 12(4) because they are subordinate to other bilateral and multilateral agreements and they have not been adopted by all of the contracting parties to the European Social Charter and Revised Social Charter. It has also indicated that the maximum periods of residence contained within the Interim Agreements before the granting of equal treatment in respect of non-contributory benefits are very long341. In this respect the European Social Charter and the Revised Social Charter may go beyond the requirements contained within the Council of Europe’s specific instruments for social security co- ordination.

Furthermore, ratifying the European Convention on Social Security is not enough on its own to satisfy Article 12(4) given that the European Convention on Social Security does not extend to all of the contracting parties of the European Social Charter and the Revised Social Charter. The European Committee of Social Rights also pointed out that not all of the provisions of the European Convention on Social Security are immediately effective and some therefore rely upon the conclusion of further bilateral and multilateral agreements342. However, the European Convention on Social Security is potentially useful in enabling contracting parties to honour their commitment under Article 12(4), provided of course, that they ratify the Convention and that the principles of Article 12(4) are taken into consideration when bilateral or multilateral agreements are concluded.

338

General Introduction to Conclusions XIII-4, p. 52

339

Conclusions III, Norway, p. 66

340

General Introduction to Conclusions XIII-4, p.45

341

General Introduction to Conclusions XIII-4, p. 52

342