Social Security Matters Research Articles

Cross-border workers - navigating the challenges of social security coordination rules in the era of telework in the European Union

In 1 2020, there were 1.7 million cross-border workers in the European Union, creating difficulties in determining the applicable legislation for social security matters. The reason for this complexity is that even in cross-border activities, the legislation of only one Member State is applicable according to the Coordination Regulation 883/2004. This article examines the evolving landscape of social security coordination in the European Union. It explores the interplay between the European principle of free movement of workers and the complexities arising from various national social security systems, combined with the increase in telework. The article outlines the foundational legal frameworks underpinning social security within the European Union, including the Coordination Regulation EC 883/2004, and discusses primarily the challenges in applying these rules to cross-border teleworkers. It further analyses the implications of the new Multilateral Framework Agreement, providing a nuanced understanding of its role in offering simplified procedures and legal certainty for habitual cross-border teleworkers. The article also highlights the Agreement's limitations, including its restricted scope and the persisting administrative burdens. The discussion extends to the broader context of ongoing legislative efforts and the need for more flexible and modern social security coordination rules in the European Union. The article aims to shed light on the critical issues surrounding social security coordination in an era of evolving work practices.

The Controversial Maternity Supplement Due to Demographic Contribution: Practical Issues and Regulatory and Judicial Responses

This paper addresses the study and analysis of the establishment of the maternity supplement towards the current contributory pension supplement for the reduction of the gender gap from three key points. In the first place, and to understand the establishment of the pension supplement, the basis and legal regime of the so-called maternity supplement is analysed. Secondly, the arguments of the CJEU of 12 December 2019, case C-450/18 are set out, which, as a result of the practical application of the maternity supplement for demographic contribution, declared that there was direct discriminatory treatment on grounds of sex between men and women and that the Spanish legislation was contrary to Council Directive 79/7/EEC, of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security. Likewise, due to its relevant interest in the matter, the latest CJEU in the matter is addressed, specifically the CJEU of 14 September 2023, case C-311/22. Finally, the legal regime of the new pension supplement for the reduction of the gender gap is briefly described.

A pandemic's impact on Mental Health

Abstract Background A small topic-specific foresight exercise that shows how monitoring the current and country-specific state of people's mental health has been done in Austria. Since the consequences of the Covid-19 pandemic cannot be precisely quantified with just one or two indicators, a different approach is needed. Methods A comprehensive overview of different mental health indicators is a good approach to identify general trends in the psychosocial health of the population. In the absence of survey data, it was decided to focus on available routine data. A specific country context can be understood through comparisons between countries, as was done in use case D of the PHIRI project. Results Even though the pandemic (or other crises) affected practically everyone's life, some population groups are showing significant psychological suffering, e.g., young people (especially girls and young women), people with pre-existing mental health conditions, and elderly. Conclusions Hence, interventions need to be taken at various levels of a society-wide approach. This means that despite specialized psychosocial support, interventions on “lower levels” dealing with matters of social security, community support etc. are necessary. The Austrian example was used to describe insights to future developments that are applicable to the impact of the COVID-19 pandemic to mental health of the population in several European countries.

What are the principles for measurement and estimation of accident sequelae? : Development and function of the reduction in earning capacity (MdE) tables in the statutory accident insurance

The evaluation of permanent dysfunction after injuries to the musculoskeletal system is one of the core activities of a trauma surgeon and orthopedists. Based on the knowledge of the injury and an accurate description of the dysfunction, the medical expert then makes aproposal regarding the amount of the reduction in earning capacity (Minderung der Erwerbsfähigkeit, MdE). The amount is based on the MdE tables, which have been derived from adecade-long harmonization and coordination between administrative authorities, courts and the medical profession. They have been published in the fundamental guidelines for evaluation. Individual recommendations are subject to change; however, the benchmark figures for amputations have not changed significantly since the introduction of the statutory accident insurance in 1884, although the treatment with prostheses has continuously improved. The benchmark for the MdE is the labor market which becomes unavailable to the insured person due to the dysfunction. In the Social Code for Employment Accident Insurance (Sozialgesetzbuch für die Unfallversicherung, SGBVII), the reduction in earning capacity is defined and the amount "…is based on the extent to which job opportunities are available as aresult of the impairment of the physical and mental capacity across the entire area of the working life". The article traces the history of this central instrument for measuring the sequelae of accidents. In this context it is shown that the MdE values did not in fact arise concurrently with the introduction of statutory accident insurance at the end of the nineteenth century but date back to the millennia-old principle of the law of talion (ius talionis). This is the basic form of material civil liability law, according to which the injuring party must compensate the injured party in the case of aculpable impairment of health for the resulting material loss. Here the loss of earnings, the impairment of the capacity to work or, in other words, the reduction in earning capacity is of paramount importance. In the middle of the nineteenth century, private accident insurers developed dismemberment schedules based on the principle of ius talionis. These dismemberment schedules were adopted by the professional organizations after 1884. The highest competent instance for social security matters, which was the Imperial Insurance Office (Reichsversicherungsamt), redefined the dismemberment schedules: the values for the dismemberment schedules then became the benchmark for the reduction of capacity to work (Erwerbsminderung, EM) and subsequently the reduction in earning capacity (MdE). The fact that the MdE values have remained stable over more than 100 years support the view that they not only grant legal certainty but are also regarded as appropriate and fair by both the persons affected and society.

POLAND VERSUS THE BASIC EU PRINCIPLES OF THE RULE OF LAW

The employment law and social policy of the European Union, analyzed from the perspective of the Republic of Poland, reveal a serious difference between the views of Polish state authorities and EU institutions on employment and social security matters regulated by national labour law provisions in force in the RP. The CJEU ruled that the RP failed to fulfill the obligations resulting from the membership in the EU. The state authorities of the RP are trying to undermine this concept as part of the “reform of the judiciary”. They do not pay attention to its core, which is the limitation of state sovereignty in matters relating to the autonomy of judges and the independence of courts, but contest the interference of EU institutions in matters relating to the organization of the judiciary.

Sex and Gender in the Community

The ECJ Judgment (Court of Justice of European Union) of 26 July 2018 (M.B. Case) declares the discriminatory nature of a national (British) regulation that requires married transgender people to have their marriage annulled to gain full legal recognition of their gender change, as a condition for access to a retirement pension established by national law for people who have changed gender. This judgment is made to Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security. This work analyzes this judicial pronouncement, placing it in the set of the community jurisprudence which dealt with the consequences of the gender change from the community regulations of a socio-laboral nature. It points out the Spanish legal regulation concerning gender change and consequences in terms of social security. The work proves that in many cases wherein, despite the sex-gender differentiation, both terms are used in the same sense. The paper advocates a “de-gendered” and “de-gendering” law indicated by the author in the final epilogue.

Equal treatment for men and women in matters of social security

Equal treatment for men and women in matters of social security

El derecho al acceso a la seguridad social de los trabajadores al servicio del Estado

Los trabajadores al servicio del Estado representan un sector laboral desprotegido por diversas legislaciones burocráticas locales en materia de seguridad social; por mencionar un caso específico, los trabajadores temporales, pues son excluidos de la aplicación de la ley o no disfrutan de manera integral de ese derecho. El presente artículo tiene como principal objetivo demostrar el tratamiento discriminatorio que sufren los trabajadores burócratas en razón de la categoría asignada por la temporalidad de su nombramiento respecto de los trabajadores permanentes, pues en materia de seguridad social reciben una protección diferente, no obstante que ambos prestan un servicio personal y subordinado al Estado. Se plantea como hipótesis que, para el reconocimiento del derecho humano a la seguridad social de los trabajadores burócratas, su categoría no debe ser un factor determinante, y que la legislación federal y local debe ser acorde al principio de igualdad, para garantizar el reconocimiento y acceso a este derecho. Para ello, utilizo el método comparativo para el análisis de las legislaciones locales tanto en materia burocrática como de seguridad social; asimismo, con el estudio del caso se describió la situación de vulnerabilidad de algunos sectores de estos trabajadores.

Role of the Peruvian Constitutional court en labor and social security matters (Test)

La creación del Tribunal Constitucional, en el Perú, no cuenta con mucho tiempo de funcionamiento. El TC tiene como antecedente la creación del Tribunal de Garantías Constitucionales en un contexto muy especial por la Constitución de 1979, que entró en funciones en 1982. Con la Constitución de 1993 se precisó sus funciones; así, en nuestro sistema jurídico recién desde el 2000 contamos con sentencias relevantes del TC en defensa de la constitucionalidad de los derechos fundamentales de los ciudadanos, especialmente de los derechos laborales y previsionales. De este modo, en el presente artículo se pretende desarrollar el rol del TC en materia laboral y previsional, específicamente en los derechos fundamentales de carácter individual, colectivo, procesal y seguridad social como partes sustanciales del Derecho del Trabajo.

State policy in the field of social security for families of soldiers in ethnic military formations during the World War I (1914–1917)

The paper examines the normative legal acts of the First World War period, which regulated the social sphere, studied the social practices and institutions of the charity system in the national regions of the empire. The purpose of the paper is to analyze the measures of state social support and manage its delivery to certain groups of the empire population during the First World War. The relevance of the topic is determined by the fact that the issues of social assistance to families of soldiers and cavalrymen of ethnic military formations have not yet become the subject of deep historical research. The authors, based on the systematization of legal documents of the era and the analysis of archival materials, first introduced into scientific circulation, identify common approaches in the production of cash benefits for food, reveal the features of the implementation of social charity regulations in national regions. A comparative analysis of the social practices of the war period allows us to conclude that the governments policy in this area was systematic and quite effective. Institutions of power demonstrated timely responses to the demands of society in matters of social security of the family, which provided timely and equal material support to the families of volunteers in the army, regardless of their ethnic or religious affiliation.

Overview of recent cases before the Court of Justice of the European Union (January − June 2018)

In the fi rst part of 2015 the Court of Justice (CoJ) of the European Union (EU) delivered a comparatively large number of rulings relevant for the fi eld of social security. None of the twelve rulings selected for purposes of this overview can be labelled as landmark judgments introducing new principles or overruling existing ones. Yet, virtually all of the judgments do bring important clarifi cations by specifying previously recognised principles or interpretations or by applying these in cases involving other factual circumstances. Th e most interesting judgments concern the rules determining the applicable legislation ( Franzen, Kik and Evans), the application of Regulations 1408/71 and 883/2004 to ‘socially earmarked taxes’ ( de Ruyter), the continued legal signifi cance of bilateral social security agreements concluded before the aforementioned Regulations became applicable to the States concerned ( Balasz), the right to unemployment benefi ts for frontier workers ( Mertens), the right of Turkish nationals to export of special non-contributory cash benefi ts (SNCBs – Demirci) and the principle of non-discrimination on grounds of gender in social security matters (Cachaldora Fernandez).

Overview of recent cases before the court of justice of the European Union (April−September 2017)

This contribution presents an overview of the case law of the Court of Justice of the European Union in the period April–September 2017 on social security matters. The relevant rulings concern first and foremost the rules determining the applicable legislation as enshrined in Regulation 883/2004 and Regulation 1408/71. In addition, the Court of Justice has delivered important rulings concerning posted worker and the binding effect of A1 certificates, the social security rights of third country nationals holding a single-permit and the protection of social rights in the context of financial crisis and austerity measures.

Overview of Recent Cases before the Court of Justice of the European Union (October–December 2014)

For all those following the case law of the Court of Justice of the European Union (CJEU) in social security matters, the last three months of 2014 were particularly interesting.1 The CJEU delivered its long-awaited judgment in the ‘social tourism case’ of Dano, expressed itself (once again) on the powers of the European Union (EU) to adopt social security measures vis-à-vis third countries (Turkey in United Kingdom v Council) and provided important clarification about the rights of third-country nationals who de facto cannot be treated for the illnesses they suffer from in their countries of origin (M'Bodj and Abdida). In addition, the CJEU delivered noteworthy rulings on planned hospital treatment in other Member States (Petru), old-age pensions (Larcher; Somova) and family benefits (Fassbender-Firman; Österreichischer Gewerkschaftsbund).

Wybrane zagadnienia w zakresie kontroli działań Zakładu Ubezpieczeń Społecznych przez sądy administracyjne – część pierwsza

THIS ARTICLE DISCUSSES the key problems of determining the jurisdiction of courts in matters of social security. The advantage of a broad reference to the jurisprudence of Polish courts and representative of ref. The author formulates a number of de lege ferenda postulates, based also on the practical application of the legislation.

Property Protection as a Limit to Deteriorating Social Security Protection

This paper explores how the protection of property rights can serve as a limit to deteriorating social security protection. The protection of property rights under Article 1 of the First Protocol to the European Convention on Human Rights (ECHR), often combined with the right to fair trial under Article 6(1), has proved a valuable legal instrument in social security matters when the respective rights seem to be threatened by potential changes in social security law. This article therefore focuses on the judicial protection provided when a social security claim is brought to the European Court of Human Rights (ECtHR) and certain selected national courts. If the right to social security actually provides a more targeted content with regard to the status quo of an individual protected under a social security system, then what are the consequences for law and juridical practice? Jurisprudence and relevant case law at a European level under the ECHR focuses attention on the obligations of the contracting Member States in respect of the protection of social security rights, classified under the Article 1 1P of the ECHR.

Social Security and the European Convention on Human Rights: How an Odd Couple Has Become Presentable

For more than twenty years now, the European Convention on Human Rights has been used to solve disputes in social security. This is peculiar since the Convention itself and its Protocols primarily comprise civil and political rights and do not include a right to social security. This article analyses the supervisory bodies' case law to establish how national disputes over contributions or cash-benefits under statutory social insurance and social assistance scheme have attracted the protection of the Convention. It also provides an overview of the types of social security cases which today fall within the ambit of particular rights guaranteed by the Convention. It concludes that the right to a fair trial (Article 6(1)) and the protection of property (Article 1 of the First Protocol to the Convention) are, as a general rule, applicable in the field of social security. By contrast, the protection of family life and the protection of private life (Article 8) have, in social security matters only, only been accepted as applicable in the context of particular branches of social security or in relation to particular groups of beneficiaries.

Regards sur le droit administratif suisse

Looking at Swiss administrative law from a Quebec perspective, this paper outlines some aspects of the Swiss system that provide useful models or references for the discussion and resolution of current issues in Canadian and Quebec administrative law. These issues are identified as (1) the proliferation of independent administrative agencies, and the means to control or at least systematize the growth of such structures ; (2) the desirability and feasibility of enacting general standards of procedure for administrative action ; (3) the simplification of remedies in the field of judicial review of administrative action ; (4) the desirability and feasibility of allocating judicial review powers to a specialized court, either within or outside the Superior Court ; and (5) the desirability and form of a procedure allowing for political intervention in the decision-making process of independent agencies. In the light of these issues, the paper describes the allocation of review functions between administrative and judicial bodies in Swiss federal law. The structure and activity of the Swiss Federal Court (Tribunal fédéral), and especially of the division of the Court that deals with most administrative law cases, are outlined in some more detail. A short historical sketch leads to a discussion of the corresponding features of the law in some of the cantons, and to consideration of the special position given to social security matters in the general scheme of administrative law. The paper then focusses on administrative action itself, commenting on the most significant provisions in the Federal Administrative Procedure Act (Loi fédérale sur la procédure administrative) of 1968. Special attention is paid to the process of review within the administration, up to the level of the federal cabinet (Conseil fédéral). Corresponding provisions in the law of some of the cantons are also briefly discussed. The description of the federal review process is then completed by an outline of the procedure for judicial review of administrative action by the Federal Court (Recours de droit administrative). Finally, notice is again taken of the special position of social security as regards administrative procedure. The paper draws attention, in its concluding part, to the most interesting insights provided by Swiss law into the current problems of Canadian and Quebec administrative law. The growth of administrative tribunals has been brought under control by structural arrangements, especially in the field of social security. The introduction of general standards of procedure has brought greater uniformity and clarity, has emphasized the unity of administrative process including the review phase before administrative or judicial authorities, and has strenghtened the rule of law over government action. The existence of a single procedure to invoke judicial review eases access to the court. While in many cases review by the court is excluded, these exclusions have to be specific, and leave full opportunity for review within the administration, with adequate safeguards provided by the Administrative Procedure Act. Specialization occurs within the Federal Court, and does not involve a rigid separation between judges applying administrative law and judges applying other branches of the law, as in France or Germany. Finally, ultimate political control over certain types of decisions is admitted as a part of life in Swiss federal law, but is at the same time subjected to a quasi-judicial procedure which makes it an acknowledged source of administrative justice.

Parliamentary Questions

Parliamentary Questions is a selection of recent written questions from MPs to government ministers in the House of Commons. The answers from ministers highlighted in this section focus on social security matters which may be of general interest to readers. Published in daily and weekly editions of Hansard, questions and answers across a range of issues can also now be found online at www.publications.parliament.uk/pa/cm/cmhansrd.htm. In addition to written parliamentary questions, Hansard also covers oral answers from the ministers in the Department for Work and Pensions on a regular basis. In recent months, ministers have also started making written ministerial statements. These are printed just before the written answers in Hansard, and often cover announcements of substantive policy changes, the publication of reports, and so on. Because of the availability of parliamentary answers on the website, only a few significant answers are now reproduced in full in Benefits. Other important answers are listed, in chronological date order, within each topic. (Please note that this is not a complete list of parliamentary answers on social security benefits, but only those which the contributor thinks fairly important and/or interesting, within the limits of space.) The answers on the following pages cover the period from late February until late June 2003.

Parliamentary Questions

Parliamentary Questions is a selection of recent written questions from MPs to government ministers in the House of Commons. The answers from ministers highlighted in this section focus on social security matters which may be of general interest to readers. Published in daily and weekly editions of Hansard, questions and answers across a range of issues can also now be found online at www.publications.parliament.uk/pa/cm/cmhansrd.htm. In addition to written parliamentary questions, Hansard also covers Oral Answers from the ministers in the Department for Work and Pensions on a regular basis. In recent months, ministers have also started making written ministerial statements on occasions. These are printed just before the written answers in Hansard, and often cover announcements of substantive policy changes or the publication of reports etc. Because of the availability of parliamentary answers on the website, only a few significant answers will be reproduced in full in Benefits from now on. Other important answers will be listed, in chronological date order within each topic. (Please note that this will not be a complete list of parliamentary answers on social security benefits, but only those which the contributor thinks fairly important.) The answers below start from January 2003, and cover January and most of February. There are unfortunately none from November or December 2002, due to the changeover of contributor for Parliamentary Questions from Marilyn Howard to Fran Bennett.

Societal security and social psychology

The concept of societal security as developed by the Copenhagen school has three underlying weaknesses: a tendency to reify societies as independent social agents, a use of too vague a definition of ‘identity’, and a failure to demonstrate sufficiently that social security matters to individuals. This article shows that applying social identity theory to the societal security concept helps remedy these weaknesses and closes the theoretical gaps that the Copenhagen school has left open. It enables us to treat ‘society’ as an independent variable without reifying it as an independent agent. It also suggests a much sharper definition of identity, and a rationale for the Copenhagen school's claim that individuals have a psychological need to achieve societal security by protecting their group boundaries. Social identity theory thus supports the societal security concept in its central assumptions while giving it stronger theoretical foundations and greater analytical clout.