Constitutional right to social security

Abstract

Open AccessConstitutional right to social securityJacek Wantoch-Rekowski, Martyna Wilmanowicz-SłupczewskaJacek Wantoch-RekowskiSearch for more papers by this author, Martyna Wilmanowicz-SłupczewskaSearch for more papers by this authorhttps://doi.org/10.7767/9783205217381.69SectionsPDF/EPUB ToolsAdd to favoritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinkedInRedditEmail About1. IntroductionThe right to social security is included in the group of social rights and freedoms.1 It is difficult to imagine a modern, democratic state in which social security issues would not play a significant role. Given the important role of social security (in social, economic and political terms), the basic regulations are contained in the most important pieces of legislation. It is usually constitution that regulates, in general terms, the basic principles concerning social security. The right to social security is formulated in Article 22 of the Universal Declaration of Human Rights, adopted on 10 December 1948, according to which, ‘Everyone, as a member of society, has the right to social security and is entitled to the realisation, through national efforts and international co-operation, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality’.2The right to social security concretises at a specific time for each of the entitled subjects. The realisation of this right depends not only on the content of the legislation but also on the surrounding demographic, economic, social or political situation.3The purpose of the study is to analyse the provisions of the Constitution of the Republic of Poland of 2 April 1997,4 which concern the issue of social security, against the background of constitutional regulations of selected European states and supranational regulations.2. Social security – concept, constituent elementsIn regard to the genesis of social security, it is worth noting that the desire to create state forms was seen as a consequence of the industrial revolution and the creation of the so-called working class.5 Social insurance arose from the merger of two hitherto separate and alien groups of phenomena (i. e., assurance and social policy).6 To date, no normative definition of social security has been developed in the Polish legal system. Moreover, there is no single, universal definition developed by scholars. However, many eminent specialists in the field of law have formulated their own definitions. First of all, it is necessary to point to the findings of J. Piotrowski who indicated that social security is a set of measures and activities of public institutions, through which society tries to secure its citizens from deprivation not caused by themselves; such deprivation threatens to prevent the satisfaction of the citizens’ basic needs, which are socially recognised as important.7In turn, another specialist in the field of social security, W. Szubert, defined social security as the totality of devices, both similar to the insurance model and providing funds from public funds and based on the principle of social assistance. According to W. Szubert, the whole of the insurance system, including certain forms of care, is increasingly often referred to as social security, a term used to denote a device created by the state and guaranteeing a wide range of citizens a minimum of existence in the face of random accidents.8 According to K. Głąbicka, social security is defined as the entirety of measures and activities of public institutions, by means of which society tries to secure its citizens against privation not caused by them and the threat of inability to satisfy basic needs, socially recognised as important.9The literature indicates that Article 67 of the Constitution of the Republic of Poland establishes, on the one hand, citizens’ right to social security and, on the other hand, imposes an obligation on the state to create such statutory solutions that ensure the full realisation of citizens’ constitutional rights. The details concerning the scope and forms of establishing the right to social security are not specified in the most important legal act, but reference is made to ordinary legislation. Ensuring social security is therefore the task of the state authorities. The provision of Article 67 of the Constitution of the Republic of Poland forms a constitutional benchmark, defining in a general way the framework of social security and the directions of state policy and being addressed mainly to the legislative bodies. Article 67 of the Constitution of the Republic of Poland and the provisions of a number of laws broadly guarantee the social security of the individual, realising the right to social security in a complex way. This takes the form of various types of benefits; however, the assistance provided by public authorities must not assume the features of paternalism or bail out the individual from caring for his or her own existence. Social security only makes sense if it is subsidiary in nature.10Social security is not a unified concept; it has several components. When describing it, authors use various terms (basic concepts of social security implementation, social security techniques, methods etc.).11The jurisprudence of the Constitutional Court has repeatedly pointed out that ‘social security is nowadays conceived as a system of facilities and benefits serving to satisfy the justified needs of citizens who have lost or suffered a reduction in their capacity to work, or who have been excessively burdened by the costs of supporting their families. It comprises social insurance, social provision and social assistance’.12The ‘classical’ understanding of social security was created by J. Piotrowski, who pointed out that public social security institutions are sometimes organised according to three techniques: insurance, provision and welfare. He emphasised that the concepts of social insurance, provisioning or welfare are not opposite or equivalent to the concept of social security; rather, the latter concept encompasses all three previous ones as its different manifestations.13A similar position is presented by G. Szyburska-Walczak. According to this author, social security is the broadest category in terms of meaning. It is a system of solutions, the scope and form of which are defined by law; the system is established to protect every individual in the event of a loss of their social security and cover social insurance, social provision and social assistance. Social security is an important element of social policy and serves to protect those members of society who are unable to satisfy – either fully or in sufficient measure – their own and their close relatives’ needs, which are commonly regarded as necessary and important.14As M. Wujczyk rightly points out, ‘Social security is understood to encompass the following nine branches: adequate health service, disability benefits, old age benefits, unemployment benefits, employment injury insurance, family and child support, maternity benefits, disability protections, and provisions for survivors and orphans’.153. Social security in the Constitution of the Republic of PolandThe issue of social security in the Polish Constitution is regulated in Article 67, according to which:‘A citizen has the right to social security in the event of incapacity to work due to illness or disability and upon reaching retirement age. The extent and forms of social security shall be determined by law’ (para. 1);‘A citizen who is unemployed not of his own free will and has no other means of subsistence has the right to social security, the extent and forms of which shall be determined by law’ (para. 2).In the context of this provision, B. Gronowska points out that in light of the construction of the subjective right, the essence of the right to which an individual is entitled is the possibility to make a claim specified in the subjective right. According to the author, the right ‘to something’ always results from the existence of a bilateral obligatory relationship in which one of the parties is entitled to a specific benefit, while the other party is obliged to realise that benefit.16There is no doubt that Article 67 of the Polish Constitution defines the right to social security in very general framework terms. In terms of details, the Polish Constitution refers to laws. Laws should therefore regulate the following:social security issues;social provision issues;social welfare issues;issues concerning unemployment assistance.In the Polish legal system, the right to social security is concretised for each insured person in the context of statutory solutions. Article 67 of the Constitution of the Republic of Poland is not a direct basis for claims for benefits, as ordinary laws regulate the issues concerning benefits for entitled entities.17 This way of interpreting Article 67 is presented in the jurisprudence of the Constitutional Tribunal. By way of example, the judgment of the Constitutional Tribunal of 25 September 201918 indicated that pursuant to Article 67(1) and (2) of the Constitution of the Republic of Poland, the determination of the scope and forms of social security lies, as a rule, within the competence of the ordinary legislator. Referring to previous jurisprudence, the Constitutional Tribunal emphasised that Article 67 (1) of the Constitution implies an order for statutory regulations to realise the content of the constitutional right to social security in a manner that both takes into account the existing social needs and the possibilities of satisfying them. The limits of these possibilities are determined by other protected constitutional values, which may to some extent remain in opposition to statutory solutions aimed at maximising social guarantees. The Constitutional Tribunal has further indicated that the notion of social security has been included in Article 67 of the Constitution of the Republic of Poland in the category of subjective rights. In the opinion of the Constitutional Tribunal, the essence of the right to social security is the protection of citizens in the event of a specific insurance risk occurring.In the judgment of 25 September 2019, the Constitutional Tribunal took the position that ‘the imposition on the legislator in Article 67(1) of the Constitution of the Republic of Poland of the obligation to determine the scope and forms of social security, without clearly indicating the criteria and directions for determining the limits and forms of this security, means that, as a result of legislative actions, a whole system of forms, of varied scope, fulfilling the content of this notion should be created. This system, as a whole, is intended to enable a citizen who is incapable of working due to illness or disability, after reaching retirement age, or who is unemployed not of his own free will and has no other means of subsistence, to fully realise his right to social security’. It is also worth pointing out that in its judgment of 25 September 2019, the Constitutional Tribunal emphasised that the rights guaranteed by Article 67 of the Constitution of the Republic of Poland are a manifestation not only of the principle of social solidarity but also of the principle of social justice expressed in Article 2 of the Fundamental Law and the principle of protection of the individual’s trust in the state and the law created by it derived from this provision. This is because the Republic of Poland, both at the constitutional and international legal level, has committed itself to its own citizens by providing them with guarantees in the sphere of social security.A similar position is presented by the Supreme Court. In its judgment of 24 June 2015,19 it ruled that a constitutional right to a specific form of social benefit cannot be derived from Article 67(1) of the Polish Constitution. The basis of possible claims of persons applying for a pension, an old-age pension or another form of social security may be the provisions of laws regulating these issues in detail and not Article 67(1) of the Constitution of the Republic of Poland, which authorises the legislator to determine the scope and forms of social security. This view has been reproduced in subsequent judgments of the Supreme Court (e. g., its judgment of 26 May 2021).20The administrative judiciary also shares this view. For example, in a judgment of 10 October 2019, the Voivodship Administrative Court in Opole21 formulated the thesis that the constitutional right to social security does not imply entitlements with a specific content for citizens. The Constitution does not determine either the forms of social security or its scope. Therefore, it is not possible to derive a constitutional right to any specific form of benefit from Article 67(1) of the Constitution. It is worth signalling the differentiation in particular constitutional orders, in which either a constitutional subjective right emerges or only a reference to legal provisions of a lower order concretising this right is included, (i. e., as is the case in the Polish legal order).22Jan Jończyk made a valid point that Article 67 of the Polish Constitution does not exhaust the issue of social risk as a subject of social security law.234. Social security in the constitutions of selected European countriesThe constitutions of almost all European countries regulate social security issues or elements thereof. As a rule, the provisions are ‘laconic’. In the vast majority, the constitutions refer, as far as specific issues are concerned, to laws.24General regulations on the right to social security are found in the constitutions of many European countries. They adopt a construction similar to that of the 1997 Constitution of the Republic of Poland, in which reference is made to laws on specific issues. Furthermore, ‘While the variety of constitutional provisions ensuring social protection continues to increase, there is a noticeable pattern of their convergence around three main approaches: affirming social security as an individual right of a human being; defining the social responsibility of the State in social security provisions; and placing social security among the guiding principles of state policy’.25Thus, the Constitution of the Republic of Macedonia of 17 November 199126 states in Article 34 that citizens have the right to social security and social protection as defined by law and collective agreements. Equally laconic is the Constitution of the Grand Duchy of Luxembourg of 17 October 1868 in Article 11 (5): ‘The law regulates, as regards principles, social security, health protection, workers’ rights, the fight against poverty and the social integration of citizens affected by invalidity’.27 Article 109 of the Constitution of Latvia of 15 February 1922 states that ‘Everyone has the right to social security in case of old age, incapacity, unemployment and in other cases defined by law’, and Article 20(2) of the Constitution of the Netherlands of 28 March 1814 states that ‘The conditions of social security shall be determined by law’. The Portuguese Constitution of 2 April 1976, on the other hand, indicates in Article 63(1) that everyone has the right to social security. Subsequent drafting units of Article 63 elaborate on this general declaration:According to paragraph 2, ‘It shall be the duty of the State to organise, coordinate and subsidise a unified and decentralised system of social security, with the participation of trade unions, other organisations representing workers and associations representing other persons covered by benefits’.According to paragraph 3, ‘The social security system shall provide protection for citizens in the event of sickness, old age, invalidity, widowhood and orphanhood, and in the event of unemployment and in any case of lack or limitation of the means of subsistence or of the ability to work’.According to paragraph 4, ‘The entire period of service shall form the basis, under the terms of the Act, for the calculation of pensions, irrespective of the economic sector in which the work was performed’.28In the Belgian Constitution of 7 February 1831, social security is regulated in Article 23. This provision states that everyone has the right to lead a life that corresponds to the requirements of human dignity; to this end, the law, decree or acts of the regional bodies referred to in Article 134 guarantee – while taking into account the corresponding obligations – economic, social and cultural rights and define the conditions for their exercise. The Belgian Constitution mentions these rights by way of example (the construction ‘in particular’ is used), one of which is the right to social security.29Some of the constitutions of European countries contain regulations on social security, which are ‘clarified’ by reference to social insurance (a case in point is Croatia). The Constitution of the Republic of Croatia of 22 December 1990 contains the words ‘security’ and ‘insurance’ in one sentence; it follows from Article 56 that laws and collective agreements define the rights of the employed and their families to social security and social insurance. The law also defines rights related to childbirth, maternity and childrearing.30The constitutions of some European countries do not contain the general term ‘social security’, and the regulations explicitly refer to the issue of social insurance(s). For example, such solutions exist in Greece, Bulgaria, Albania, Romania, Malta or Hungary.31A broader overview of the Constitution, in the context of social security and social insurance regulation, is provided in the literature.325. Social security against the background of supranational regulationsSocial security is recognised as one branch of European Union law. Its separation from all European Union law is based on similar criteria to the separation of social security law in the individual Member States. European Union social security law (like all EU law) is divided into primary law and secondary law, which mainly includes regulations that apply in each Member State. In the field of social security, a number of directives have been issued that mainly concern the principle of equal treatment in social security systems.33Community regulations do not lead to harmonisation of national social security systems, and they do not provide for their harmonisation. Rather, they are based on the coordination of the different systems. Coordination is based on two legal acts: Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems34 and Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009, laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems.35 As pointed out in the doctrine, ‘While the key legislative instruments, namely Regulations 883/3004 and 987/2009, do not ensure beneficiaries full protection of social security income, they do guarantee that they are subject to the legislation of (only) one Member State and enjoy the protection of the principles of non-discrimination, portability, aggregation and retention of acquired rights under national law in relation to virtually all social security risks’.36 The problem of gaps in the protection of mobile workers that result from differences between national systems is also relevant;37 however, these gaps cannot be closed by regulation due to the lack of a legal basis for harmonisation in the Treaty on the Functioning of the European Union.38 Representatives of the doctrine also point to potential mechanisms that can be used to strengthen the social protection of persons moving in and out of the EU.39The literature points out that the EU rules on the coordination of social security schemes have not only coordinating effects but also substantive legal effects in the national legislation of the Member States.40 As O. Golynker rightly points out, ‘The process of integration in the regulation of cross-border social security is affected by the need to balance the rights of EU citizens; the objective of facilitating labour mobility; and the legitimate interests of the Member States who have exclusive responsibility for national social security systems’.41Since 1 May 2004 (i. e., since Poland’s accession to the European Union), labour migration within the Member States has not put migrants at a disadvantage, as the above-mentioned regulations coordinate the different systems in the Member States. However, these regulations do not apply when a country that is not a member of the European Union is involved. In such situations, bilateral agreements to which Poland is a party apply. For example, the following agreements can be pointed out:of 2 April 2008 on social security between the Republic of Poland and the United States of America;of 2 April 2008 on social security between the Republic of Poland and Canada;of 25 February 2009 on social security between the Republic of Poland and the Republic of Korea;of 7 October 2009 between the Republic of Poland and Australia on social security;of 22 November 2016 between the Republic of Poland and the State of Israel on social security;of 24 January 2018 between the Republic of Poland and Mongolia on social security.The history of bilateral agreements began in Europe as early as the beginning of the 20th century, when the first statutory social security schemes were developed.42 Bilateral agreements became an indispensable solution to protect workers from paying contributions in two countries at the same time; being deprived of their insured status; or not receiving the benefits to which they were entitled.43 In addition to EU regulations (and bilateral agreements), legal acts of the International Labour Organisation, the Council of Europe or the United Nations are of great importance in the sphere of social security. Undoubtedly, a major role in the sphere of social security is played by Convention No. 102 of the International Labour Organisation concerning minimum standards of social security, adopted in Geneva on 28 June 1952.44 This convention regulates issues concerning the following:medical care;sickness benefits;benefits during unemployment;old-age benefits;benefits in the event of accidents at work and occupational diseases;family benefits;maternity benefits;disability benefits;benefits in the event of the death of the breadwinner;calculation of periodic payments;equal treatment of foreign citizens.The literature points to the strong role of the Council of Europe in the field of social security. The main mission of the Council of Europe is to protect human rights, democratic pluralism and the rule of law, as well as to support activities that enable social development. One of the main tasks of the Council of Europe in the field of social affairs is to develop innovative approaches in standard-setting and policy-making, bearing in mind the strategic goal of moving forward with guarantees of social cohesion in all Member States. The social challenges facing the Council of Europe’s member states are currently the focus of the body’s attention.456. SummaryThe right to social security cannot be seen today as a privilege. Instead, it is a kind of standard in every democratic state.Social security is regulated at many levels but primarily supranational and national (state). While recognising the importance of EU regulations, those of the UN, the Council of Europe or the International Labour Organisation, it must be stressed that the constitutions of individual states play an important role. These usually contain general framework regulations, but thanks to them, a specific social security system is created in a given country.On the issue of social security, the Constitution of the Republic of Poland of 2 April 1997 is highly laconic. The legislator determined the impossibility of formulating entitlements of a specified content for citizens from Article 67 (1) of the Constitution of the Republic of Poland, including in particular the derivation of a constitutional right to any specific form of benefit. The regulation of the above issues takes place in legal acts of statutory rank.However, it is reasonable to conclude that Article 67 of the Polish Constitution, in conjunction with supranational provisions and national laws, satisfactorily provides the entitled subjects with a real right to social security.ReferencesLegal actsJurisdictionLiterature1 B. Banaszak, Prawo konstytucyjne [Constitutional Law], Warszawa 2010, p. 240.2 Universal Declaration of Human Rights of December 10, 1948, http://libr.sejm.gov.pl/tek01/txt/onz/1948.html.3 The issue of social security is relevant in every modern state, while the practical problems of realising this right in each state may vary in nature. In many states, reforms are being carried out to ensure that this right is realistically realised. For example, on reforms of the constitutional right to pension insurance in the US, see T.L. Anemson, L.L. Barkacs, J.K. Gershberg, Constitutional limits on public pension reform: new directions in law and legal reasoning, Virginia Law & Business Review 2019 no. 3, vol. 15, pp. 338–400 (accessed on HeinOnline).4 J. of L. 1997, no. 78, item 483 as amended.5 K. Ślebzak, Artykuł 67 [Article 67], in: Konstytucja RP, Komentarz, Tom I [Constitution of the Republic of Poland, Commentary, Vol. 1], eds. M. Safjan, L. Bosek, C.H. BECK, Warszawa 2016, p. 1487.6 S. 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Google Scholar Previous chapter Next chapter FiguresReferencesRelatedDetails Download book coverLegal Area StudiesVolume 5 1st editionISBN: 978-3-205-21737-4 eISBN: 978-3-205-21738-1HistoryPublished online:March 2023 Information© 2023 Böhlau Verlag, Zeltgasse 1, A-1080 Wien, ein Imprint der Brill-GruppeThis publication is licensed under a Creative Commons Attribution – Non Commercial 4.0 International license, at https://doi.org/10.7767/9783205217381. For a copy of this license go to https://creativecommons.org/licenses/by-nc/4.0/. Any use in cases other than those permitted by this license requires the prior written permission from the publisher.PDF download