Sixto MOLINA FOUR BASIC PRINCIPLES OF SOCIAL SECURITY COORDINATION 14-15 September 2010 Belgrade, Serbia.

Sixto MOLINASixto MOLINA

FOUR BASIC PRINCIPLES OF SOCIAL FOUR BASIC PRINCIPLES OF SOCIAL SECURITY COORDINATIONSECURITY COORDINATION

14-15 September 2010Belgrade, Serbia

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Council of EuropeCouncil of Europe

• 47 Member States47 Member States

• Human rights, pluralist democracy, Human rights, pluralist democracy, rule of lawrule of law

• Democratic stability in Europe, Democratic stability in Europe, greater unity between Member greater unity between Member StatesStates

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European InstitutionsEuropean Institutions

• Council of Europe / European Council Council of Europe / European Council

• Parliamentary Assembly / European Parliamentary Assembly / European ParliamentParliament

• European Court of Human RightsEuropean Court of Human RightsCourt of Justice of the European Court of Justice of the European CommunitiesCommunitiesInternational Court of JusticeInternational Court of Justice

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Human Rights InstrumentsHuman Rights Instruments

• Convention for the Protection of Human Convention for the Protection of Human Rights and Fundamental Freedoms (1950)Rights and Fundamental Freedoms (1950)= civil and political rights= civil and political rights

• European Social Charter (1964) and European Social Charter (1964) and Revised Charter (1996)Revised Charter (1996)

= social and economic rights= social and economic rights

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Civil and Political Rights versus Civil and Political Rights versus Social and Economic RightsSocial and Economic Rights

• ECHR: based in a Court, with judgments and ECHR: based in a Court, with judgments and a real execution control mechanism by the a real execution control mechanism by the Committee of Ministers. Individual complaints Committee of Ministers. Individual complaints allowed. Financial compensation can be allowed. Financial compensation can be awarded. Resolutions adopted by the CM. awarded. Resolutions adopted by the CM. Possible sanctions for non-execution Possible sanctions for non-execution (political).(political).

• Social Rights: based in Committees, no Social Rights: based in Committees, no judgments but national reports (except judgments but national reports (except collective complaints). Recommendations collective complaints). Recommendations adopted by the CM. No financial implicationsadopted by the CM. No financial implications..

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Principles of Social Security Principles of Social Security Co-ordination and HarmonisationCo-ordination and Harmonisation

• Co-ordinationCo-ordinationTechniques which are aimed at Techniques which are aimed at guaranteeing the social security guaranteeing the social security entitlements of migrating persons entitlements of migrating persons and their dependants. Aiming at and their dependants. Aiming at making national systems fit making national systems fit together in transnational situations.together in transnational situations.

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Principles of Social Security Principles of Social Security Co-ordination and HarmonisationCo-ordination and Harmonisation

• Harmonisation Harmonisation Whole range of techniques which, in Whole range of techniques which, in various degrees, effectively change various degrees, effectively change national legislation in order to bring national legislation in order to bring theses close(r) to each other.theses close(r) to each other.

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Social Security InstrumentsSocial Security Instruments• Standard setting instrumentsStandard setting instruments

−European Social Charter (Article 12) 1964−European Code of Social Security 1964−Revised European Code of Social Security 1990

• Co-ordination instrumentsCo-ordination instruments−Two European Interim Agreements on

Social Security Schemes 1952−European Convention on Social and

Medical Assistance 1953−European Convention on Social Security 1972

• Model Provisions for a bilateral Model Provisions for a bilateral Social Security AgreementSocial Security Agreement 19941994

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Co-ordination techniquesCo-ordination techniquessocial security risks – social assistancesocial security risks – social assistance

• Co-ordination techniques developed for Co-ordination techniques developed for the traditional social security risksthe traditional social security risks−Techniques for foreigners residing in the

country or only for those staying temporary in the territory

• Co-ordination principles in relation to Co-ordination principles in relation to social assistancesocial assistance−Techniques for foreigners residing in the

country or only for those staying temporary in the territory

• Guarantees for persons who stay in an Guarantees for persons who stay in an illegal manner or work in an illegal wayillegal manner or work in an illegal way

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Principles of Social Security Principles of Social Security Coordination and HarmonisationCoordination and Harmonisation

COORDINATION IN EU MEMBER COORDINATION IN EU MEMBER STATESSTATES

•27 Member States (EC 27 Member States (EC legislation – legislation – 1408/71,883/2004, 1408/71,883/2004, 3646/09, 11162/09, 3646/09, 11162/09, 3467/09, 11600/09) entry 3467/09, 11600/09) entry into force May 2010into force May 2010

•Migrants staying in two Migrants staying in two countries or morecountries or more

•Bilateral agreements (non Bilateral agreements (non EC countries)EC countries)

COORDINATION IN COE MEMBER COORDINATION IN COE MEMBER STATESSTATES

•47 Member States 47 Member States (Convention and interims (Convention and interims agreements)agreements)

•Ratification/entry into force Ratification/entry into force of Convention (8) and interim of Convention (8) and interim agreements (21)agreements (21)

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Categories of Social Security co-ordination Categories of Social Security co-ordination instrumentsinstruments

• Bilateral and Multilateral AgreementsBilateral and Multilateral Agreements

• Multilateral ConventionsMultilateral Conventions

• Supra-national lawSupra-national law

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Categories of persons with corresponding Categories of persons with corresponding social security problemssocial security problems

• Migrant workers residing in the country of workMigrant workers residing in the country of work

• Cross-border movementCross-border movement

• Foreign citizenship or citizenship of state not existing Foreign citizenship or citizenship of state not existing anymoreanymore

• Refugees and displaced persons staying temporary in Refugees and displaced persons staying temporary in the host countrythe host country

• Refugees intending to move up to other countriesRefugees intending to move up to other countries

• Foreign persons staying temporary on the territory for Foreign persons staying temporary on the territory for private reasonsprivate reasons

• Illegal migrantsIllegal migrants

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1.1. Determination of Applicable LegislationDetermination of Applicable Legislation

2.2. Aggregation of Insurance PeriodsAggregation of Insurance Periods

3.3. Equality of TreatmentEquality of Treatment

4.4. Export of BenefitsExport of Benefits

5.5. (Cooperation between national (Cooperation between national administrations)administrations)

6.6. (Assimilation of facts)(Assimilation of facts)

Co-ordination principles for the traditional social Co-ordination principles for the traditional social security risks security risks (excluding social assistance)(excluding social assistance)

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• Aims to solve the problem of Aims to solve the problem of discriminationdiscrimination− Overt discrimination

Based on citizenship/nationality− Hidden/indirect discrimination

Other distinguishing criteria achieving the same result

1.1. Equality of TreatmentEquality of Treatment

Co-ordination principles for the traditional social Co-ordination principles for the traditional social security risks security risks (excluding social assistance)(excluding social assistance)

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• Avoiding positive and negative conflicts of lawAvoiding positive and negative conflicts of law− “Lex loci laboris” principle

• ExceptionsExceptions− “Posting”

• Special rules for certain categoriesSpecial rules for certain categories• Cooperation between the administrationsCooperation between the administrations

2.2. Designation of applicable legislationDesignation of applicable legislation

Co-ordination principles for the traditional social Co-ordination principles for the traditional social security risks security risks (excluding social assistance)(excluding social assistance)

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• National legislationNational legislation− qualifying periods

• AggregationAggregation− of periods of insurance− of employment or− of residence

• Long-term benefitsLong-term benefits− principle of pro-rata calculation

3.3. Aggregation of Insurance Periods Aggregation of Insurance Periods (protection of the rights in course of acquisition)(protection of the rights in course of acquisition)

Co-ordination principles for the traditional social Co-ordination principles for the traditional social security risks security risks (excluding social assistance)(excluding social assistance)

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• National legislationNational legislation− Restrictions

• Export of benefitsExport of benefits− In cash− In kind

4.4. Export of BenefitsExport of Benefits(protection of the acquired social security rights)(protection of the acquired social security rights)

Co-ordination principles for the traditional social Co-ordination principles for the traditional social security risks security risks (excluding social assistance)(excluding social assistance)

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• Delineation of social assistanceDelineation of social assistance− Equal treatment in case of residence− Temporary stay

• Minimum protection to be guaranteed Minimum protection to be guaranteed for illegal migrantsfor illegal migrants

Co-ordination principles with regard to social Co-ordination principles with regard to social assistance: assistance: guarantees in the field of social guarantees in the field of social assistance for foreign personsassistance for foreign persons

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Treaties ratified or having been the subject of an Treaties ratified or having been the subject of an accession by CoE Member States in the Balkan accession by CoE Member States in the Balkan Region as of 07/05/2010Region as of 07/05/2010

• Number of CoE’s treaties = 209Number of CoE’s treaties = 209• 72 Treaties ratified by Albania72 Treaties ratified by Albania• 75 Treaties ratified by B&H75 Treaties ratified by B&H• 89 Treaties ratified by Croatia89 Treaties ratified by Croatia• 73 Treaties ratified by Montenegro73 Treaties ratified by Montenegro• 68 Treaties ratified by Serbia68 Treaties ratified by Serbia• 86 Treaties ratified by the FYR of Macedonia86 Treaties ratified by the FYR of Macedonia• 98 Treaties ratified by Turkey98 Treaties ratified by Turkey

http://conventions.coe.inthttp://conventions.coe.int

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• Albania: Revised European Social Charter, European Convention Albania: Revised European Social Charter, European Convention on the legal status of migrant workerson the legal status of migrant workers

• B&H: Revised European Social CharterB&H: Revised European Social Charter• Croatia: European Social Charter, Additional Protocol to the ESC, Croatia: European Social Charter, Additional Protocol to the ESC,

Protocol Amending the ESC, and Additional Protocol Providing for a Protocol Amending the ESC, and Additional Protocol Providing for a System of Collective ComplaintsSystem of Collective Complaints

• Montenegro: Revised European Social CharterMontenegro: Revised European Social Charter• Serbia: Revised European Social CharterSerbia: Revised European Social Charter• The FYRO Macedonia: European Social Charter, Protocol The FYRO Macedonia: European Social Charter, Protocol

Amending the ESCAmending the ESC• Turkey: Both European Interim Agreements (and Protocols), Turkey: Both European Interim Agreements (and Protocols),

European Code of Social Security, European Convention of Social European Code of Social Security, European Convention of Social Security (and supplementary agreement), European Convention on Security (and supplementary agreement), European Convention on the legal status of migrant workers, European Social Charter, the legal status of migrant workers, European Social Charter, Revised European Social Charter, European Convention on Social Revised European Social Charter, European Convention on Social and Medical Assistance.and Medical Assistance.

Treaties in the Social Field ratified or having been Treaties in the Social Field ratified or having been the subject of an accession by CoE Member the subject of an accession by CoE Member States in the Balkan Region as of 07/05/2010States in the Balkan Region as of 07/05/2010

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Council of Europe Treaties in the Social FieldCouncil of Europe Treaties in the Social Field

• European Code of Social Security and ProtocolEuropean Code of Social Security and Protocol• European Code of Social Security RevisedEuropean Code of Social Security Revised• European Convention on Social Security and ProtocolEuropean Convention on Social Security and Protocol• Supplementary Agreement for the Application of the European Convention on Supplementary Agreement for the Application of the European Convention on

Social SecuritySocial Security• European Convention on Social and Medical Assistance and ProtocolEuropean Convention on Social and Medical Assistance and Protocol• European Interim Agreement on Social Security Schemes Relating to Old Age, European Interim Agreement on Social Security Schemes Relating to Old Age,

Invalidity and Survivors and ProtocolInvalidity and Survivors and Protocol• European Interim Agreement on Social Security other than Schemes for Old European Interim Agreement on Social Security other than Schemes for Old

Age, Invalidity and Survivors and ProtocolAge, Invalidity and Survivors and Protocol• European Convention on the Legal Status of Migrant WorkersEuropean Convention on the Legal Status of Migrant Workers• European Social Charter, Additional Protocol and Protocol Amending itEuropean Social Charter, Additional Protocol and Protocol Amending it• European Social Charter RevisedEuropean Social Charter Revised• Additional Protocol to the ESC providing for a System of Collective ComplaintsAdditional Protocol to the ESC providing for a System of Collective Complaints• European Agreement on Au Pairs PlacementsEuropean Agreement on Au Pairs Placements

Sixto MOLINASixto MOLINA

FOUR BASIC PRINCIPLES ON SOCIAL FOUR BASIC PRINCIPLES ON SOCIAL SECURITY COORDINATIONSECURITY COORDINATION

14-15 September 2010Belgrade, Serbia