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Sixto MOLINASixto MOLINA

THE PROTECTION AND SUPERVISION OF THE PROTECTION AND SUPERVISION OF PENSION RIGHTS IN COUNCIL OF EUROPE PENSION RIGHTS IN COUNCIL OF EUROPE

INSTRUMENTSINSTRUMENTS

11 June 2010Bucharest

Sixto Molina

Council of EuropeCouncil of Europe

• 47 Member States47 Member States

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

• Democratic stability in Europe, greater unity Democratic stability in Europe, greater unity

between Member Statesbetween Member States

• In the social field: to develop an innovative In the social field: to develop an innovative

approach integrating standard setting and policy approach integrating standard setting and policy

development with the overall goal of facilitating development with the overall goal of facilitating

progress, while guaranteeing social cohesion for progress, while guaranteeing social cohesion for

all member countriesall member countries

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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 Rights

Court of Justice of the European Court of Justice of the European

CommunitiesCommunities

International Court of JusticeInternational Court of Justice

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• European Governmental European Governmental

OrganisationOrganisation−Governments

−Observers :• Social Partners

• Other States

• INGO

• World tri-partite World tri-partite

OrganisationOrganisation−Governments

−Trade Unions

−Representatives of Employers

International Labour International Labour

Office (ILO) – Office (ILO) – 19461946(United Nations)(United Nations)

Council of Europe Council of Europe

19491949

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• European Convention for European Convention for

the Protection of Human the Protection of Human

RightsRights

• European Social CharterEuropean Social Charter

• Minimum standardsMinimum standards−Freedom of association−Right to organise and to

bargain collectively −Abolition of Force Labour

• The right to equal The right to equal

opportunities and opportunities and

equal treatmentequal treatment


19491949



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European Code of European Code of

Social SecuritySocial Security

• Convention n° 102 – 1952Convention n° 102 – 1952

Concerning social securityConcerning social security

• Convention n° 118 - 1962Convention n° 118 - 1962

Concerning equal treatment Concerning equal treatment

in the social security fieldin the social security field

• Convention n° 121 – 1964Convention n° 121 – 1964

In cases of labour injuries In cases of labour injuries

and professional illnessand professional illness




19491949

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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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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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Categories of Social Security Categories of Social Security co-ordination instrumentsco-ordination instruments

• Bilateral and Multilateral AgreementsBilateral and Multilateral Agreements

• Multilateral ConventionsMultilateral Conventions

• Supra-national lawSupra-national law

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Revised European Social Charter - 1996Revised European Social Charter - 1996Control Mechanism

Reports from Governments

on the application of the Charter

Observations

from social partners and NGOs

European Committee on Social RightsLegal examination of the conformity of the national legislation and practice

with the requirements laid down in the Charter

Governmental CommitteeDiscussion and drafting of

Committee of Minnister’s decisions

Committee of MinistersRecommendations to contracting parties with a view of

introducing the necessary legislative and practical changes to conform with the Charter

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EUROPEAN COMMITTEE OF SOCIAL RIGHTSDecides on the admissibility of complaints

Draws up a report containing it conclusion as to whether or not the state concerned has violated the Charter

Social Charter:Social Charter: Collective complaints procedureCollective complaints procedureInternational

organisations of employers and trade unions

(ETUC, UNICE, IOE)

Representative national

organisations of employers

and trade unions

International non - governmental organisations

entered on a list drawn up by the Governmental

Committee

Representative national non-governmental organisations

competent in the matters covered by the Charter

(Subject to a declaration

by the state)C O M P L A I N T S

COMMITTEE OF MINISTERSIn cases of violation, adopts a recommendation

addressed to the State concernedIn cases of non-violation, adopts a resolution

which terminates the procedure

GOVERNMENTAL COMMITTEE

In certain cases, may be consulted by the

Committee of Ministers

PARLEMENTARY ASSEMBLY

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Control mechanismControl mechanism

The preparation of national reports (Article 74)The preparation of national reports (Article 74)

Supervision of the national reports:Supervision of the national reports:

• National report forwarded to ILO Committee of ExpertsNational report forwarded to ILO Committee of Experts

• Conclusions of Experts forwarded to COE (CS-SS – Conclusions of Experts forwarded to COE (CS-SS –

Committee of Experts on Standard Setting Instruments.Committee of Experts on Standard Setting Instruments.

• Conclusions of CS-SS forwarded to Committee of Conclusions of CS-SS forwarded to Committee of

Ministers.Ministers.

• Parliamentary AssemblyParliamentary Assembly

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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 Bilateral agreements

(non EC countries)(non 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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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 discriminationOther distinguishing criteria achieving the same result

1.1. Equality of TreatmentEquality of Treatment


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• Avoiding positive and negative conflicts of Avoiding positive and negative conflicts of

lawlaw

− “Lex loci laboris” principle

• ExceptionsExceptions− “Posting”

• Special rules for certain categoriesSpecial rules for certain categories

• Cooperation between the administrationsCooperation between the administrations

2.2. DesignationDesignation of applicable legislationof applicable legislation


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


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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)


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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 08/06/2010Region as of 08/06/2010

• Number of CoE’s treaties = 210Number of CoE’s treaties = 210

• 72 Treaties ratified by Albania72 Treaties ratified by Albania

• 98 Treaties ratified by the Czech Republic98 Treaties ratified by the Czech Republic

• 80 Treaties ratified by Estonia80 Treaties ratified by Estonia

• 88 Treaties ratified by Lithuania88 Treaties ratified by Lithuania

• 84 Treaties ratified by Poland84 Treaties ratified by Poland

• 99 Treaties ratified by Romania99 Treaties ratified by Romania

• 68 Treaties ratified by Serbia68 Treaties ratified by Serbia

• 98 Treaties ratified by Slovenia98 Treaties ratified by Slovenia

• 140 Treaties ratified by the Netherlands140 Treaties ratified by the Netherlands

• 86 Treaties ratified by the FYR of Macedonia86 Treaties ratified by the FYR of Macedonia

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

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• Albania: Revised European Social CharterAlbania: Revised European Social Charter• Czech Republic: European Social Charter, European Code of Czech Republic: European Social Charter, European Code of

Social SecuritySocial Security• Estonia: Revised European Social Charter, European Code of Estonia: Revised European Social Charter, European Code of

Social SecuritySocial Security• Lithuania: Revised European Social CharterLithuania: Revised European Social Charter• Poland: European Social CharterPoland: European Social Charter• Romania: Revised European Social Charter, European Code of Romania: Revised European Social Charter, European Code of

Social SecuritySocial Security• Serbia: Revised European Social CharterSerbia: Revised European Social Charter• Slovenia: Revised European Social Charter, European Code of Slovenia: Revised European Social Charter, European Code of

Social SecuritySocial Security• The Netherlands: Revised European Social Charter, European The Netherlands: Revised European Social Charter, European

Code of Social SecurityCode of Social Security• The FYRO Macedonia: European Social CharterThe FYRO Macedonia: European Social Charter

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

Sixto MOLINASixto MOLINA

THE PROTECTION AND SUPERVISION OF THE PROTECTION AND SUPERVISION OF PENSION RIGHTS IN COUNCIL OF EUROPE PENSION RIGHTS IN COUNCIL OF EUROPE

INSTRUMENTSINSTRUMENTS

11 June 2010Bucharest

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Sixto MOLINA