Sixto MOLINA

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

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

6. Council of Europe 1949 • 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 International Labour Office (ILO) – 1946 (United Nations) European Code of Social Security 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 Security1964 • Revised European Code of Social Security1990 • Co-ordination instruments • Two European Interim Agreements on Social Security Schemes1952 • European Convention on Social and Medical Assistance1953 • European Convention on Social Security1972 • Model Provisions for a bilateral Social Security Agreement1994 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 Reports from Governments on the application of the Charter Observations from social partners and NGOs Control Mechanism 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 EU MEMBER STATES COORDINATION IN COE 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) Sixto Molina 47 Member States (Convention and interims agreements) Ratification/entry into force of Convention (8) and interim agreements (21)

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

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

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

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

19. National legislation Restrictions Export of benefits In cash In kind Co-ordination principles for the traditional social security risks (excluding social assistance) Export of Benefits (protection of the acquired social security rights) 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 http://conventions.coe.int 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