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

2. 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

3. 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

4. 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

5. 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

6. 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°
Concerning equal treatment in the social security field
Convention n° 121 – 1964
In cases of labour injuries and professional illness
Sixto Molina

7. 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

8. 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

9. Social Security Instruments
Standard setting instruments
European Social Charter (Article 12) 1964
European Code of Social Security
Revised European Code of Social Security 1990
Co-ordination instruments
Two European Interim Agreements on
Social Security Schemes
European Convention on Social and
Medical Assistance
European Convention on Social Security 1972
Model Provisions for a bilateral
Social Security Agreement
Sixto Molina

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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. (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

20. 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
Sixto Molina

21. 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

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