"Social Policy" 2010 English edition
INDIVIDUALISATION OF SOCIAL RIGHTS SOCIAL RIGHTS: INDIVIDUAL OR DERIVED?
Editor's note - Gertruda Uścińska
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.
"Social Policy" 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
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
do strony "Polityka Społeczna"
|