Nr 1 (6) 2010

“Social Pol­icy”

INDIVIDUALISATION OF SOCIAL RIGHTS SOCIAL RIGHTS:
INDIVIDUAL OR DERIVED?

pobierz PDF/download in PDF

Table of Con­tents 1/2010 Eng­lish Edition

WHAT DO WE MEAN BY “INDIVIDUALISATION OF SOCIAL RIGHTS” — Nicole Ker­schen
LEGAL ASPECTS OF THE INDIVIDUALISATION OF SOCIAL RIGHTS — AN ANALYSIS ON THE INTERNATIONAL LEVEL — Gertruda Uścińska
 INDIVIDUALISATION OF SOCIAL RIGHTS IN THE LIGHT OF THE EUROPEAN SOCIAL CHARTERS — Andrzej Mar­ian Świątkowski
INDIVIDUALISATION OF ENTITLEMENTS TO BENEFITS AGAINST THE BACKGROUND OF CHANGES AND REGULATIONS IN THE EUROPEAN UNION — Zofia Czepulis-Rutkowska
INDIVIDUAL RIGHTS AND FAMILY MATTERS. NATIONAL LEGISLATION AND THE CONCEPT OF THE INDIVIDUALISATION OF SOCIAL RIGHTS. AN EXAMPLE OF FINLAND — Laura Kalliomaa-Puha, Maija Fau­rie
UNCONSCIOUS INDIVIDUALISATION OF SOCIAL SECURITY RIGHTS IN HUNGARY — József Hajdú INDIVIDUALISATION OF SOCIAL SECURITY RIGHTS IN BULGARIA — Kras­simira Sred­kowa
SOCIAL RIGHTS IN THE POLISH SOCIAL SECURITY SCHEME. THE SCOPE OF INDIVIDUALISATION — Gertruda Uścińska
INDIVIDUALISATION OF SOCIAL RIGHTS — CONCLUSION REMARKS — Gertruda Uścińska

EDITOR’S NOTE
Gertruda Uścińska, The Insti­tute of Labour and Social Stud­ies
For the past few years a group of experts from dif­fer­ent EU Mem­ber States has been con­duct­ing some research ini­tia­tives on the indi­vid­u­al­iza­tion of social rights. These research endeav­ors are car­ried out within dif­fer­ent for­mal frame­works, e.g. within the SPECIAL Net­work project (Social Pro­tec­tion in Enlarged Europe) , among oth­ers. On the one hand, we exam­ine those issues from the the­o­ret­i­cal per­spec­tive, refer­ring to the indi­vid­u­al­iza­tion of social rights as replac­ing the derived rights by indi­vid­ual rights, both with regard to fam­ily rela­tion­ships and other per­sonal rela­tion­ships. On the other hand, we take into account the aspect of imple­men­ta­tion, includ­ing, among oth­ers, doc­u­ments, pro­grams and objec­tives within the Euro­pean Union legal frame­work, where indi­vid­u­al­iza­tion of social rights is referred to, or where some con­crete plans for action were pro­posed (e.g. the announce­ment by the Euro­pean Com­mis­sion Mod­ern­iza­tion and Improve­ment in the field of social pro­tec­tion in the Euro­pean Union, the open method of co-ordination, and oth­ers). At the same time, it has been observed that Euro­pean coun­tries either engage in the debate on the indi­vid­u­al­iza­tion of social rights or actu­ally intro­duce some legal solu­tions that embrace the ten­dency towards the indi­vid­u­al­iza­tion of social rights. The legal issues also have an impor­tant eco­nomic con­text: eco­nomic cri­sis is pre­dicted either to moti­vate the intro­duc­tion of new solu­tions in this area, or, on the con­trary, to sus­tain and fos­silize the sta­tus quo. Another inter­est­ing dimen­sion of the indi­vid­u­al­iza­tion of social rights refers to the cat­e­gory of Euro­pean cit­i­zen­ship and its impact on the devel­op­ment of indi­vid­ual rights. The 2010 Spe­cial Issue of “Poli­tyka Społeczna” dis­cusses the indi­vid­u­al­iza­tion of social rights with respect to rights granted on the basis of either work and eco­nomic activ­ity or social cit­i­zen­ship. The prob­lem is posed by the scope and legal nature of rights exer­cised by the EU cit­i­zens in rela­tion to the func­tional rel­e­vance of their being a worker or eco­nom­i­cally active per­son. In order to com­pre­hend and research the con­text of the devel­op­ment of social rights the sec­ond paper focuses on the his­tory of the legal frame­works endors­ing the process of the indi­vid­u­al­iza­tion of social rights at the inter­na­tional level. The con­cep­tual scope of indi­vid­u­al­iza­tion is dis­cussed in the light of human rights de lege lata, social rights pro­vided by the ILO Con­ven­tions, the Coun­cil of Europe and the Euro­pean Union leg­is­la­tion. The chang­ing back­ground of the process is evoked as EU cit­i­zen­ship allows for the Euro­pean Court of Jus­tice to re-think a num­ber of rights and sub­se­quently re-define them as indi­vid­ual social rights. The jurispru­dence of ECJ has sup­ported the ten­dency towards the indi­vid­u­al­iza­tion of social rights to a large extent, par­tic­u­larly through insis­tence that the free­dom of move­ment of the EU cit­i­zens entails indi­vid­ual social rights. The Com­mu­nity declar­a­tive doc­u­ments and their vital role in des­ig­nat­ing indi­vid­u­al­iza­tion as a tool enabling mod­ern­iza­tion of social pol­icy and ensur­ing bet­ter social pro­tec­tion across the EU is also reflected in the paper. The ques­tion of the scope of indi­vid­u­al­iza­tion of social rights under the Euro­pean Social Char­ter, in par­tic­u­lar Arti­cle 16, is under con­sid­er­a­tion in the suc­ces­sive paper. The author main­tains that sup­port is pro­vided to both indi­vid­ual per­sons and/or all the fam­ily mem­bers, which proves that leg­is­la­tor pro­posed indi­vid­u­al­ized rights avail­able to indi­vid­ual per­sons. This exam­ple illus­trates well that the rights guar­an­teed by the Char­ter and cat­a­logued as human rights are indi­vid­u­al­ized and pro­tected as uni­ver­sally applic­a­ble. On the whole, the process of indi­vid­u­al­iza­tion of social rights reacts to the evolv­ing con­di­tions of the func­tion­ing of social secu­rity schemes which mul­ti­ply chal­lenges and neces­si­tate reforms. The EU bod­ies appear to act as norm-setters and balance-seekers con­sis­tently refrain­ing from impos­ing a sin­gle direc­tion within the EU legal frame­work. Con­se­quently, as the author of the sub­se­quent paper con­firms, elas­tic mea­sures are pre­ferred, such as the open method of coor­di­na­tion, which allows for the Mem­ber States to imple­ment selec­tively and set the tempo of the reforms accord­ing to their own needs and resources. Objec­tives are artic­u­lated in gen­eral terms, albeit they gen­er­ally fit the strat­egy of blend­ing secu­rity with eco­nomic flex­i­bil­ity under the so-called “flex­i­cu­rity” pol­icy, within which indi­vid­u­al­iza­tion of social rights ought to occupy a cen­tral place. In the fur­ther parts of this issue social secu­rity leg­is­la­tion of selected Mem­ber States is pre­sented in the con­text of indi­vid­u­al­iza­tion of social rights. Exem­plar­ily, the Fin­ish scheme pro­vides for uni­ver­sal and indi­vid­u­al­ized rights to ben­e­fits and ser­vices. All the inhab­i­tants are cov­ered by the social pro­tec­tion scheme, inde­pen­dently of con­tri­bu­tions or their sta­tus as eco­nom­i­cally active or inac­tive per­sons. The deci­sive role is played by their needs. Nonethe­less, not all ben­e­fits are indi­vid­u­al­ized in their char­ac­ter: some are pro­vided for a fam­ily. In such cases it is the needs and resources of fam­ily as a whole that is taken into con­sid­er­a­tion. The authors ana­lyz­ing the scope of indi­vid­u­al­iza­tion in the Fin­ish scheme eval­u­ate its effi­cacy, adding also that indi­vid­u­al­iza­tion is not a suf­fi­cient guar­an­tee of social pro­tec­tion fully sup­ply­ing the well­be­ing and rights of an indi­vid­ual. Those can and ought to be real­ized also through other avail­able meth­ods. Still, how­ever, it remains clearly empha­sized that ide­o­log­i­cal dif­fer­ence between the derived rights based on the fact of being a fam­ily mem­ber, a spouse or a child of an insured per­son and the indi­vid­u­al­ized rights granted to a per­son as an indi­vid­ual or cit­i­zen can­not be erad­i­cated and should not be over­looked. On a related note, they point to a shift in the par­a­digm towards “famil­ism”, i.e. a grow­ing accen­tu­a­tion of respon­si­bil­ity on the part of fam­ily for the well­be­ing of an indi­vid­ual, while the role of the state and the role of an indi­vid­ual him­self or her­self are under­played. In Hun­gary the prob­lem of indi­vid­u­al­iza­tion of social rights has not been explic­itly con­sid­ered as a legal or social issue (as a prac­ti­cal or the­o­ret­i­cal prob­lem). As the author pro­claims, solu­tions in line with what is defined as indi­vid­u­al­iza­tion of social rights are intro­duced as prod­ucts of leg­isla­tive actions that do not con­sciously have as their aim indi­vid­u­al­iza­tion of social rights. The paper focuses on the derived rights and the per­sonal links as well as on the enti­tle­ments not issu­ing from the con­trib­u­tory oblig­a­tions. The prob­lems pre­sented refer mostly to the derived rights in the pen­sion and health care schemes and unem­ploy­ment ben­e­fits. In the Bul­gar­ian leg­isla­tive frame­work the def­i­n­i­tion or any spec­i­fi­ca­tion of the indi­vid­u­al­iza­tion of social rights is notably absent, both in the gen­eral sense and with ref­er­ence to the social secu­rity rights. Such rights are usu­ally dis­cussed in legal stud­ies and legal acts as uni­ver­sal human rights. The author under­takes an analy­sis of social secu­rity enti­tle­ments in Bul­gar­ian scheme while tak­ing into account the newly intro­duced pen­sion scheme. She also enlists a num­ber of prob­lems stem­ming from the appli­ca­tion of the derived and indi­vid­ual rights. In the Pol­ish scheme, which is ana­lyzed in the sub­se­quent paper, there has been no leg­isla­tive action explic­itly address­ing the prob­lem of indi­vid­u­al­iza­tion of social rights. Also the­o­ret­i­cal con­sid­er­a­tions and research rarely touched the prob­lem. The right to social secu­rity is based on employ­ment (eco­nomic activ­ity). In some cases the enti­tle­ment depends on per­sonal links, fam­ily sit­u­a­tion, mar­riage. Pol­ish scheme is based on both derived and indi­vid­ual rights. The two cat­e­gories of rights com­plete each other in order to pro­vide for social pro­tec­tion cov­er­ing the risks enlisted under the social secu­rity leg­is­la­tion. In some cases it seems worth­while to recon­sider replac­ing the derived rights with indi­vid­ual rights. For instance, indi­vid­ual right to health care ben­e­fits for chil­dren would improve the ade­quacy and effi­ciency of the scheme. Some derived rights could be exer­cised more freely if the def­i­n­i­tion of fam­ily under­went nec­es­sary mod­i­fi­ca­tions within the social secu­rity leg­is­la­tion. In the con­clud­ing remarks some gen­eral con­clu­sions drawn from the mate­r­ial pre­sented by the con­tribut­ing ana­lysts and researchers have been included. Those call for fur­ther the­o­ret­i­cal study and imple­men­ta­tion research and dis­cus­sion. I wish to give my thanks to all the con­trib­u­tors for their devoted research and informed writ­ing included in this spe­cial issue of the Pol­ish jour­nal on social pol­icy devoted to the impor­tant topic of the indi­vid­u­al­iza­tion of social rights.

CONTRIBUTORS

ZOFIA CZEPULIS-RUTKOWSKA (PhD.)  is a senior researcher in the Insti­tute of Labour and Social Stud­ies (ILSS). She is also the direc­tor of Inter­na­tional Coop­er­a­tion Depart­ment in the Pol­ish Social Insur­ance Insti­tu­tion. She also worked as a lec­turer and a vice dean in the Col­lege of Insur­ance in Bank­ing in War­saw. Her research inter­ests focus on social secu­rity eco­nom­ics as well as Euro­pean Law, par­tic­u­larly in the field of pen­sions and long term care issues. She has par­tic­i­pated in sev­eral inter­na­tional com­par­a­tive projects on social secu­rity and has also pub­lished on these subjects.

MAIJA FAURIE (LL.M) is a researcher at the Research Depart­ment of the Social Insur­ance Insti­tu­tion of Fin­land where her research focuses, inter alia, on the con­sti­tu­tional and human rights aspect of social secu­rity. Cur­rently she is study­ing the sta­tus of the Sami peo­ple in social secu­rity leg­is­la­tion. She is addi­tion­ally involved in the national coor­di­na­tion of the Elec­tronic Exchange of Social Secu­rity Infor­ma­tion (EESSI), hav­ing assisted in the draft­ing of national leg­is­la­tion con­cern­ing the appli­ca­tion of the Reg­u­la­tion (EC) No 883/2004 of the Euro­pean Par­lia­ment and of the Coun­cil on the coor­di­na­tion of social secu­rity schemes. Maija is also a con­trib­u­tor for Oxford Reports on Inter­na­tional Law in Domes­tic Courts, an online ser­vice of Oxford Uni­ver­sity Press. She reports on the appli­ca­tion of inter­na­tional law in Finnish courts.

JÓZSEF HAJDÚ is a pro­fes­sor of law and Head of the Depart­ment of Labour Law and Social Secu­rity at Szeged Uni­ver­sity. He is also the head of the Insti­tute for Indus­trial Rela­tions and Social Secu­rity at the Fac­ulty of Law of Szeged Uni­ver­sity. He was vice-president of the Inter­na­tional Soci­ety for Labour Law and Social Secu­rity between 2006–2009. He has exten­sive knowl­edge of national labour law and social secu­rity sys­tems and of their coor­di­na­tion at Com­mu­nity level. He has pub­lished numer­ous books and arti­cles on these sub­ject mat­ters. Jozsef Hajdu has been national expert in the MISSCEEC II project. He is a mem­ber of the Project Direc­torate of the trESS project. In that con­text, he is also national expert for Hun­gary. He was national expert for numer­ous EU projects on labour law, indus­trial rela­tions and social secu­rity.

LAURA KALLIOMAA-PUHA (LL.D) is a researcher at the Research Depart­ment of the Social Insur­ance Insti­tu­tion of Fin­land where her research focuses mainly on social secu­rity law, elderly care and law, pre­ven­tive and proac­tive law as well as con­trac­tu­al­ism. She has worked in a research project Women’s law and Nord­Fru­Jus 1994–1997, in an Acad­emy of Fin­land project Wel­fare State Expec­ta­tions, Pri­vati­sa­tion and Pri­vate Law, in 1995–2000, and the Life Span and Dig­nity project, 2001–2003, all in the Fac­ulty of Law at the Uni­ver­sity of Helsinki. Her dis­ser­ta­tion was on “Infor­mal Care Agree­ments as an Instru­ment for Organ­is­ing Care”, Kela Helsinki 2007. She has also writ­ten on elder­lies rights or con­tracts as a new means to orga­nize social secu­rity in the paper “Con­tracts as usual? Pros and cons of the new social sec­tor contracts”.

NICOLE KERSCHEN is a senior researcher at CNRS, Uni­ver­sity Paris West Nan­terre La Defense/E.N.S. Cachan. She con­ducts research on Euro­pean gov­er­nance, Euro­pean Employ­ment Strat­egy (EES), “Open Method of Coor­di­na­tion” (OMC) applied to social inclu­sion and pen­sions as well as the role played by the social part­ners and civil soci­ety in the con­struc­tion of the Euro­pean social model. She also researched Euro­peaniza­tion of social pol­icy. She is a mem­ber of the tress net­work financed by the Euro­pean Com­mis­sion and a mem­ber of the research project ‘Civil soci­ety and Euro­peaniza­tion of social pol­icy’ financed by the French Research Agency (ANR). Her recent pub­li­ca­tions include “La strate­gie europeenne pour l’emploi: un exem­ple de ren­con­tre entre une poli­tique europeenne et le droit com­mu­nau­taire? Droit social, N°2, ‘Towards indi­vid­u­al­iza­tion of social rights in a Euro­pean per­spec­tive’ (Pol­ish monthly Poli­tyka Społeczna) and “Vers une indi­vid­u­al­i­sa­tion des droits soci­aux: approche europeenne et mod­e­les nationaux”, Droit social N°2.

KRASSIMIRA SREDKOVA is a pro­fes­sor and head of the Depart­ment for Labour Law and Social Secu­rity in Sofia Uni­ver­sity “St. Kli­ment Ochrid­ski”. Teach­ing courses: Labour Law; Social Secu­rity Law; Inter­na­tional Labour Law; Social Law of the Euro­pean Com­mu­nity. Editor-in-chief of the “Con­tem­po­rary Law” Jour­nal. Mem­ber of the Inter­na­tional Asso­ci­a­tion for Leg­is­la­tion. Spe­cial­iza­tions in Moscow State Uni­ver­sity “M.V. Lomonossov” (USSR), Uni­ver­sity of Szeged (Hun­gary), Uni­ver­sity of Vienna (Aus­tria), “Max Planck” Insti­tute for Inter­na­tional and For­eign Pri­vate Law in Ham­burg (Ger­many), Uni­ver­sity of Ham­burg (Ger­many), Uni­ver­sity of Leu­ven la Neuve (Bel­gium). Legal advi­sor of the Pres­i­dent of the Repub­lic; Prac­tic­ing Lawyer, Sofia Bar Asso­ci­a­tion; Spe­cific rel­e­vant project expe­ri­ence: The Phare Bul­gar­ian social dia­logue pro­gram; Con­sen­sus II-ZZ-9710–0016 project; Con­sen­sus II project; Con­sen­sus I project “Glos­sary and Dic­tio­nary of Social Pro­tec­tion Terms”; Inter­na­tional Bank for Recon­struc­tion and Devel­op­ment “Bul­garia Child Wel­fare Reform” Project; also a head of and expert in a num­ber of ILO projects and numer­ous aca­d­e­mic and research projects. An author of 181 books, stud­ies and arti­cles in Bul­garia, Ger­many, Rus­sia, Switzer­land and the USA on Labor law, Social Secu­rity Law, Inter­na­tional Labor Law, Com­par­a­tive Labor and Social Secu­rity Law, Social Law of the Euro­pean Council.

ANDRZEJ MARIAN ŚWIĄTKOWSKI is a Jean Mon­net Pro­fes­sor of Euro­pean Labour Law and Social Secu­rity and Head of the Chair of Labour Law and Social Pol­icy, Fac­ulty of Law and Admin­is­tra­tion, Jagiel­lon­ian Uni­ver­sity in Cra­cow. First Vice-president of the Euro­pean Com­mit­tee of Social Rights, Coun­cil of Europe, Stras­bourg. Mem­ber of the advi­sory board of edi­tors of the Inter­na­tional Ency­clopae­dia of Laws, Kluwer Law Inter­na­tional. Author of more than thirty books, two hun­dred and fifty arti­cles in the field of Pol­ish, Euro­pean and inter­na­tional labour law, social secu­rity law and social pol­icy. His lat­est books include: “Char­ter of Social Rights of the Coun­cil of Europe”, Stud­ies in Employ­ment Law and Social Pol­icy, Kluwer Law Inter­na­tional 2006; “Carta de Los Dere­chos Sociales Europeos”, Edi­to­r­ial de la Uni­ver­si­dad Nacional de Tres de Febrero, Buenos Aires 2007; Między­nar­o­dowe prawo pracy [Inter­na­tional labour law], Vol­ume I of the Między­nar­o­dowe pub­liczne prawo pracy [Inter­na­tional pub­lic labour law], C.H. Beck, War­saw 2008.

GERTRUDA UŚCIŃSKA is a pro­fes­sor and mem­ber of the Depart­ment of Labour Law and Social Secu­rity at the Insti­tute of Labour and Social Stud­ies (ILSS), War­saw and of the Insti­tute of Social Pol­icy at the War­saw Uni­ver­sity. She spe­cialises in Pol­ish and Euro­pean social secu­rity law and has con­ducted a num­ber of com­par­a­tive stud­ies in the field. Head of and expert to a num­ber of research pro­grams con­ducted at uni­ver­si­ties and research insti­tutes in EU Mem­ber States. She is a national expert in the trESS project and the author of national reports on the imple­men­ta­tion of EU reg­u­la­tions con­cern­ing the right to free­dom of move­ment of work­ers and their fam­i­lies and the co-ordination of social secu­rity schemes. She has pub­lished a num­ber of books and papers con­cern­ing social secu­rity, social insur­ance and social pol­icy. She was a mem­ber of the work­group for the rat­i­fi­ca­tion of the Euro­pean Social Card of the Coun­cil of Europe. She has par­tic­i­pated in works on the rat­i­fi­ca­tion of ILO Con­ven­tion no. 102 on Min­i­mum Stan­dards in Social Secu­rity and was an expert in prepa­ra­tion works for the Pol­ish acces­sion to the Euro­pean Union. She cur­rently focuses on the Euro­pean social secu­rity law. Mem­ber of the Com­mit­tee of Labour and Social Pol­icy Stud­ies, Pol­ish Acad­emy of Sciences.

 

« powrót