THE PROTECTION AND SUPERVISION OF PENSION RIGHTS IN COUNCIL OF EUROPE INSTRUMENTS 11 June 2010 Bucharest Sixto MOLINA

Council of Europe 47 Member States Human rights, pluralist democracy, rule of law Democratic stability in Europe, greater unity between Member States In the social field: to develop an innovative approach integrating standard setting and policy development with the overall goal of facilitating progress, while guaranteeing social cohesion for all member countries Sixto Molina

European Institutions Council of Europe / European Council Parliamentary Assembly / European Parliament European Court of Human Rights Court of Justice of the European Communities International Court of Justice Sixto Molina

International Labour Office (ILO) – 1946 European Governmental Organisation Governments Observers : Social Partners Other States INGO Council of Europe 1949 International Labour Office (ILO) – 1946 (United Nations) World tri-partite Organisation Governments Trade Unions Representatives of Employers Sixto Molina

International Labour Office (ILO) – 1946 European Convention for the Protection of Human Rights European Social Charter Council of Europe 1949 International Labour Office (ILO) – 1946 (United Nations) Minimum standards Freedom of association Right to organise and to bargain collectively Abolition of Force Labour The right to equal opportunities and equal treatment Sixto Molina

International Labour Office (ILO) – 1946 European Code of Social Security Council of Europe 1949 International Labour Office (ILO) – 1946 (United Nations) Convention n° 102 – 1952 Concerning social security Convention n° 118 - 1962 Concerning equal treatment in the social security field Convention n° 121 – 1964 In cases of labour injuries and professional illness Sixto Molina

Human Rights Instruments Convention for the Protection of Human Rights and Fundamental Freedoms (1950) = civil and political rights European Social Charter (1964) and Revised Charter (1996) = social and economic rights Sixto Molina

Civil and Political Rights versus Social and Economic Rights ECHR: based in a Court, with judgments and a real execution control mechanism by the Committee of Ministers. Individual complaints allowed. Financial compensation can be awarded. Resolutions adopted by the CM. Possible sanctions for non-execution (political). Social Rights: based in Committees, no judgments but national reports (except collective complaints). Recommendations adopted by the CM. No financial implications. Sixto Molina

Social Security Instruments Standard setting instruments European Social Charter (Article 12) 1964 European Code of Social Security 1964 Revised European Code of Social Security 1990 Co-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 Social Security Agreement 1994 Sixto Molina

Categories of Social Security co-ordination instruments Bilateral and Multilateral Agreements Multilateral Conventions Supra-national law Sixto Molina

Revised European Social Charter - 1996 Control Mechanism Reports from Governments on the application of the Charter Observations from social partners and NGOs European Committee on Social Rights Legal examination of the conformity of the national legislation and practice with the requirements laid down in the Charter Governmental Committee Discussion and drafting of Committee of Minnister’s decisions Committee of Ministers Recommendations to contracting parties with a view of introducing the necessary legislative and practical changes to conform with the Charter Sixto Molina

Social Charter: Collective complaints procedure International 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 EUROPEAN COMMITTEE OF SOCIAL RIGHTS Decides on the admissibility of complaints Draws up a report containing it conclusion as to whether or not the state concerned has violated the Charter COMMITTEE OF MINISTERS In cases of violation, adopts a recommendation addressed to the State concerned In 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 Sixto Molina

Control mechanism The preparation of national reports (Article 74) Supervision of the national reports: National report forwarded to ILO Committee of Experts Conclusions of Experts forwarded to COE (CS-SS – Committee of Experts on Standard Setting Instruments. Conclusions of CS-SS forwarded to Committee of Ministers. Parliamentary Assembly Sixto Molina

Principles of Social Security Coordination and Harmonisation COORDINATION IN COE MEMBER STATES COORDINATION IN EU MEMBER STATES 27 Member States (EC legislation – 1408/71,883/2004, 3646/09, 11162/09, 3467/09, 11600/09) entry into force May 2010 Migrants staying in two countries or more Bilateral agreements (non EC countries) 47 Member States (Convention and interims agreements) Ratification/entry into force of Convention (8) and interim agreements (21) Sixto Molina 14

Determination of Applicable Legislation Co-ordination principles for the traditional social security risks (excluding social assistance) Determination of Applicable Legislation Aggregation of Insurance Periods Equality of Treatment Export of Benefits (Cooperation between national administrations) (Assimilation of facts) Sixto Molina

Equality of Treatment Aims to solve the problem of discrimination Co-ordination principles for the traditional social security risks (excluding social assistance) Equality of Treatment Aims to solve the problem of discrimination Overt discrimination Based on citizenship/nationality Hidden/indirect discrimination Other distinguishing criteria achieving the same result Sixto Molina

Designation of applicable legislation Co-ordination principles for the traditional social security risks (excluding social assistance) Designation of applicable legislation Avoiding positive and negative conflicts of law “Lex loci laboris” principle Exceptions “Posting” Special rules for certain categories Cooperation between the administrations Sixto Molina

Co-ordination principles for the traditional social security risks (excluding social assistance) Aggregation of Insurance Periods (protection of the rights in course of acquisition) National legislation qualifying periods Aggregation of periods of insurance of employment or of residence Long-term benefits principle of pro-rata calculation Sixto Molina

(protection of the acquired social security rights) Co-ordination principles for the traditional social security risks (excluding social assistance) Export of Benefits (protection of the acquired social security rights) National legislation Restrictions Export of benefits In cash In kind Sixto Molina

Treaties ratified or having been the subject of an accession by CoE Member States in the Balkan Region as of 08/06/2010 Number of CoE’s treaties = 210 72 Treaties ratified by Albania 98 Treaties ratified by the Czech Republic 80 Treaties ratified by Estonia 88 Treaties ratified by Lithuania 84 Treaties ratified by Poland 99 Treaties ratified by Romania 68 Treaties ratified by Serbia 98 Treaties ratified by Slovenia 140 Treaties ratified by the Netherlands 86 Treaties ratified by the FYR of Macedonia http://conventions.coe.int Sixto Molina

Treaties in the Social Field ratified or having been the subject of an accession by CoE Member States in the Balkan Region as of 07/05/2010 Albania: Revised European Social Charter Czech Republic: European Social Charter, European Code of Social Security Estonia: Revised European Social Charter, European Code of Social Security Lithuania: Revised European Social Charter Poland: European Social Charter Romania: Revised European Social Charter, European Code of Social Security Serbia: Revised European Social Charter Slovenia: Revised European Social Charter, European Code of Social Security The Netherlands: Revised European Social Charter, European Code of Social Security The FYRO Macedonia: European Social Charter Sixto Molina

THE PROTECTION AND SUPERVISION OF PENSION RIGHTS IN COUNCIL OF EUROPE INSTRUMENTS 11 June 2010 Bucharest Sixto MOLINA