Equal Access to Social Protection in the EU

18 June 2007

Erika Szyszczak¹

On its website, the European Commission asserts that: "Social protection systems are highly developed in the European Union. They protect people against the risks of inadequate incomes associated with unemployment, ill health and invalidity, parental responsibilities, old age or inadequate income following the loss of a spouse or parent. They also guarantee access to services that are essential for a life in dignity."²

The organisation and financing of social protection systems is still regarded as being within the responsibility of the Member States. The European Court of Justice states, on a consistent basis:

"[…] it is not in dispute that Community law does not detract from the power of the Member States to organise their social security systems, and that, in the absence of harmonisation at Community level, it is for the legislation of each Member State to determine the conditions in which social security benefits are granted […]."³

Information on the main social protection schemes in each Member State of the European Union (EU) is compiled by the Mutual Information System on Social protection (MISSOC).⁴ Thus, in theory the EU has very limited competence to intervene in social protection issues and it is very difficult to envisage a time when social protection could be harmonised across the EU. One area, relating to legal migration by EU nationals within the EU and their ability to claim social protection in another Member State as an EU migrant worker, has been the subject of co-ordinating legislation at the EU level.⁵ However, the European Women's Lobby refers to the observation made by the United Nations Population Fund/International Organization for Migration Expert Group Meeting in New York, in 2006, that:

"Equal numbers do not confer equality of treatment. Women have fewer opportunities than men for legal migration; many women become irregular migrants with concomitant lack of support and exposure to risk. Whether they migrate legally or not, alone or as members of a family unit, women are more vulnerable than men to violence and exploitation. Their needs for health care, including reproductive healthcare, and other services are less likely to be met. They have more limited opportunities than men for social integration and political participation."⁶

The European Women's Lobby has argued that the EU fails to integrate women's perspectives in a comprehensive way in its activities on immigration and integration, particularly the fact that women often live their lives under situations of multiple discrimination. In the "Roadmap for Equality Between Men and Women", adopted in March 2006, the Commission makes specific commitments to promote gender equality in migration and integration policies in order to ensure women's rights and civic participation, to fully use women's employment potential and to improve women's access to education and lifelong learning. Two key actions are proposed: To monitor gender mainstreaming in the Framework for the Integration of Third Country Nationals in the EU⁷ and the follow-up Policy Plan on Legal Migration.⁸

The EU has also taken competence to enact legislation giving rights to equality in a limited area of State social security schemes.⁹ This Directive, however, has many exclusions, particularly in relation to old-age and survivor's benefits, where differences in pension provision may create inequalities and reduce women to living below the poverty level.

However, social protection is increasingly being Europeanised by a number of political processes. Firstly, opportunist litigants are questioning restrictive rules of the Member States which prevent a person who is a national of one Member State (often known as an "EU Citizen") from going to another Member State to obtain medical treatment. These cases are sometimes known as "healthcare tourism" cases because the litigants use the free movement of services provisions to assert their right to take advantage of medical services in another Member State. People usually want to move to obtain treatment faster, or to take advantage of medical treatments which are not available in the home State. For example, in one British case, a woman decided to go to France and pay for a hip replacement operation rather than wait, in pain, for the British health service to provide the operation free of charge under the National Health Service. She then asked for reimbursement of the expenses involved. The European Court of Justice ruled that while a Member State is able to determine its own health care and social protection system, this right must be exercised in accordance with Community law and a Member State could not place obstacles to the right to free movement in order to obtain medical services abroad.

The EU recognises that the Member States need to be able to plan for their welfare and healthcare services and the Commission has encouraged the Member States to use the Open Method of Coordination (OMC) to iron out the problems which can result in too many patients travelling abroad for medical services. The OMC enables highlevel groups of civil servants from the Member States to meet to agree some common guidelines on how to co-ordinate the different health care systems. Although the involvement of civil society is encouraged in these OMC processes the involvement of pressure groups, consumer groups and NGOs has been limited in this area. Thus, the particular issues raised by women and ethnic groups are not addressed fully, if at all.

Secondly, the EU has recognised that access to social protection is a fundamental right. The EU draws inspiration for a set of EU fundamental rights from the various constitutions of the Member States, international and regional obligations which are binding upon the Member States (for example the European Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter) and the case law of the European Courts.

The right to social protection is recognised in the 1948 Universal Declaration of Human Rights,¹⁰ the 1966 International Covenant on Economic, Social and Cultural Rights,¹¹ as well as various Resolutions of the United Nations.¹² The International Labor Organization has also adopted three Conventions which address social protection issues. In Europe, the European Social Charter contains clauses which address the right to social security (Article 12), the right to social and medical assistance (Article 13), the right to protection against poverty and social exclusion (Article 30), the right to housing (Article 31).

Several parts of the 1989 Community Charter on the Fundamental Social Rights of Workers establish the entitlement of all workers in the Community to social protection and an adequate level of social security benefits. Paragraph 2(e) establishes the right of migrant workers (who are nationals of an EU Member State) to equal treatment as regards access to work, working conditions and the social protection of the host State. Paragraph 10 establishes access to adequate benefits and income for all persons who are excluded from the labour market and who lack resources. The Charter, however, is not a legally binding document and does not give rise to rights which are legally enforceable before the national courts.

While these rights, contained in international documents, are important in that they create a consensus around which a constitutional approach to fundamental rights can be built, making them non-negotiable rights, the substantive implementation and enforcement of these rights is difficult for individuals and NGOs. More specifically, they are general rights, and with the exception of maternity protection, do not address specific social risks experienced by women.

Currently, the right to social protection has become consolidated in Article 34 of the Charter of Fundamental Rights (CFR) of the European Union, in Chapter 4 of the Charter entitled "Solidarity." It states:

"Social Security and Social Assistance

1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Community law and national laws and practices.

2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and practices.

3. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Community law and national laws and practices."

This "right" to social security is seen, at first sight, as a universal fundamental right to guarantee an adequate standard of living. Five specific risks are identified: Maternity, illness, industrial accidents, dependence or old-age and loss of employment. But this "right" is subject to Community law and national laws and practices and where the relevant social services do not exist there is no obligation upon the State to create them. It thus quickly becomes an illusory right in terms of creating an enforceable obligation upon States. The right to a minimum income and the right to housing are not set out in Article 34 of the CFR, but can be deduced from the right to social and housing aid which must be respected and implemented in the context of the combating of social exclusion.

The Charter, then, does not have a binding legal status but it may be used as a teleological aid to interpret Community law.

Thirdly, since 1975 the EU has implemented a series of anti-poverty programmes to support studies, pilot projects and action programmes. These projects bring together networks of NGOs, the social partners, and central and local authorities. These programmes have resulted in Community soft law measures in the form of Resolutions and Recommendations.

Finally the EU has embarked upon a process of "modernising" social protection which is aimed reducing State involvement in pensions, addressing social inclusion, health care and long-term care and "making work pay," which aims to ensure that social protection systems provide income security without discouraging employment.¹³ This is part of the Lisbon Process which has set a goal of making a decisive impact on the eradication of poverty in the EU by the year 2010 as part of the over-arching aim of making the European Union the most dynamic, competitive, knowledge-driven economy in the world by 2010.¹⁴

Thus, generally within the EU there are two countervailing tendencies. On the one hand, access to a minimum level of social protection is recognised as a fundamental right at the EU and the national constitutional level.¹⁵ On the other hand, traditional social protection schemes are increasingly threatened by the modernisation agenda. Many public services in the EU are also threatened as they are liberalised and privatised.

The position of women's access to social protection is addressed in some areas of the modernisation and equality programme. But in others the gender specificity of women's relationship with social protection schemes is lost in the gender neutrality of the new rights and ideas which are emerging. This is despite the legal duty to mainstream gender issues through all EU policies.¹⁶ Yet the relationship women have to different sources of support (direct earnings, family earnings, state resources, public services), and how the various sources interrelate, determine women's living conditions since the way in which women combine different sources of support throughout their lives has a decisive influence on their ability to maintain economic independence.

A weakness of the structure of social protection schemes in Europe is the primary requirement of a consistent and continuous attachment to the paid labour market, earning minimum levels of wages and often satisfying qualifying periods in order to receive insurance-related social security benefits, with a lower level of safety-net benefits for people who do not qualify for the social insurance benefits. This immediately disadvantages women who may have lesser attachment to the paid labour market since their working lives are interrupted by maternity and family caring responsibilities and they may earn wages below the qualifying thresholds for insurance-related benefits. For many women migrants in the EU, their immigration status may be irregular and they (and their employer) may not contribute to insurance-related social protection schemes as a result of this irregular status.

Women's relationship with social protection varies with their legal and economic status and at also with the different periods of their life cycle. There is evidence, for example, that in Europe there are wide variations in pension provision for older people: Denmark and Germany have a low poverty rate while the United Kingdom and the southern European states have higher poverty rates. Older women are more likely than older men to be living in poverty as a result of the domestic division of labour and lower earnings when in employment.¹⁷ On 8 February 2006, the Commission launched a consultation on improving the effectiveness of minimum income schemes in combating poverty and social exclusion, promising a Community initiative on minimum income schemes.¹⁸ In its response to this Consultation, the Platform of European Social NGOs point out that access to high quality services, such as social health, educational and transport services must be guaranteed as a core pillar of active inclusion policies at the EU level. This should include addressing discrimination and other obstacles to accessing services, ensuring the participation of users.¹⁹

In conclusion, the legal provisions addressing access to social assistance in the EU have a limited recognition of the particular issues affecting women, and Romani women in particular. While claims are made for mainstreaming gender issues and recognising multiple discrimination and diversity, Romani women still do benefit from the realisation that many social protection schemes are based upon a model which does not address the specificity of the existence of Romani women in European society. The EU is engaged in various projects to address and integrate social exclusion/inclusion issues into the modern policies of the EU and many of these processes use the OMC as a means of involving civil society and grassroots participation in consensus building. These projects create fora wherein Romani activists need to participate and raise the specificity of Romani needs in modernisation processes. Otherwise, it is all too easy for these processes to be determined at national/EU level without sufficient consideration of the actual needs of the people who require access to social protection.

Endnotes:

1. Erika Szyszczak is Professor of European Competition and Labour Law. She also holds a Jean Monnet Chair of European Community Law ad personam at the University of Leicester. Professor Szyszczak has been a member of the ERRC Board since January 2005.
2. See: http://ec.europa.eu/employment_social/social_protection/index_en.htm.
3. European Court of Justice. Case C-372/04. Watts v Bedford Primary Care Trust and Secretary of State for Health. Judgment of 16 May 2006, paragraph 92. Available at: Watts v. Bedford.
4. See: http://ec.europa.eu/employment_social/social_protection/missoc_en.htm.
5. Normally, however, the right of citizens to move freely between the Member States and to reside in another Member State is contingent upon the migrant and her family having sufficient financial resources and sickness insurance. See Directive 2004/38/EC (on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States), Directive 2003/109/EC (concerning the status of third-country nationals who are long-term residents) and Case C-200/02 Zhu and Chen. European Court of Justice, judgment of 19 October 2005. Available at: Zhu and Chen.
6. European Women?s Lobby. Public Seminar and Workshops: Equal Rights, Equal Voices Migrant Women in the EU. Brussels, 19-21 January 2006. Available at: http://www.womenlobby.org.
7. Commission of the European Communities. 3 January 2006. A Roadmap for equality between women and men 2006-2010. Available at: Roadmap for Equality.
8. Commission of the European Communities. 21 December 2005. Policy Plan on Legal Migration. Available at: Policy Plan on Legal Migration.
9. Council of the European Communities. Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security. Available at: Directive 79/7/EEC.
10. Article 22 of the Universal Declaration of Human Rights (UDHR) states, ?Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.? Article 25 states, ?(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (2) Motherhood and childhood are entitled to special care and assistance [?].?
11. The International Covenant on Economic, Social and Cultural Rights states, at Article 9 ?The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.? Article 10(2) further stipulates, ?Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.? According to Article 11(1), ?The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.?
12. For example, United Nations Commission for Human Rights. Resolution 2001/28 ?Adequate housing as a component of the right to an adequate standard of living,? available at: Resolution 2001/28; Resolution 2001/31 ?Human rights and extreme poverty,? available at: Resolution 2001/31; and Resolution 2005/16; and ?Human rights and extreme poverty,? available at: Resolution 2005/16.
13. European Commission. 22 December 2005. A new framework for the open coordination of social protection and inclusion policies. Available at: http://europa.eu/scadplus/leg/en/cha/c10140.htm.
14. European Commission. 12 February 2000. Building an Inclusive Europe. Available at: Building an Inclusive Europe.
15. The majority of Member States with a written constitution recognise, to varying degrees, the right of access to social protection. See: European Parliament.
16. Commission of European Communities. 3 January 2006. A Roadmap for equality between women and men 2006-2010. Article 3(2). Available at: European Commission.
17. Eardley, J., J. Bradshaw and J. Ditch. September 2005. Social Assistance in OECD Countries: Synthesis Report 46. London, HMSO, 1996. Closing Conference Report: Poor, Poorer, Poorest? A focus on the socio-economic situation of Older Migrant Women in Europe. The Netherlands, September 2005. Available at: http://www.ageplus.nl/downloads/OlderMigrantwomenNLSept_2_rev.pdf.
18. Commission of European Communities. 8 February 2006. Concerning a consultation on action at EU level to promote the active inclusion of the people furthest from the labour market. Available at: Social Inclusion.
19. Platform of European Social NGOs. Achieving Effective Minimum Income and Active Inclusion Policies in the EU: What the European Union Can Contribute. Available at: Social Platform.