EQUAL TREATMENT AND SOCAL SECURITY
Maria-Theresia Roehsler
Ludwig Boltzmann Institute of Human Rights, Vienna
As the general legal framework and other legal aspects of the right to social security will be
discussed in other papers I will focus on aspects of the legal implication of equal treatment
regarding this specific right considering as examples the principle of non-discrimination on
the grounds of gender and nationality.
The principle of non-discrimination is not only a human right of its own, classified as “civil
right” in the framework of international and regional human rights treaties1, but plays also a
role of utmost importance in interaction with all human rights 2, independent of their civil,
political, economic, cultural or social nature. Furthermore there are a range of United Nations
human rights treaties specifically intended to combat discrimination.3
Discrimination on grounds of gender, race, ethnicity, age, disability, national origin and other
factors places particular groups on the edge of society “often adding to the inequalities
already experienced by vulnerable and marginalized groups”4. By its very nature the right to
social security as a mean to compensate for personal incapacity or social inequality emerging
from discrimination becomes especially vital with regard to vulnerable and marginalized
groups. Therefore the principle of non-discrimination in access to social benefits and social
assistance is among the most fundamental fragments of the right to social security5.
With regard to gender equality for example social security legislation, especially if based on
individual contribution respective to an employment contract, must take into account the
different roles men and women traditionally played in the working field. In view of the fact
1
Art 26 CCPR, Art 24 ACHR.
e. g. Art 1(3) UN Charter, Art 2 UDHR, Art 2(1), 3 CCPR, Art 2(2), 3 CESCR, Art 14 ECHR, Preamble, Art
12(4)(a), 13(4) ESC, Art E Revised ESC, Art 2 ACHPR.
3
CEDAW, CERD.
4
Report of the Special Rapporteur on the right to health submitted in accordance with Commission resolution
2002/31, E/CN.4/2003/58, p.15.
5
For the purpose of this paper the term social security is understood as both including social benefits (earned by
contributions to insurance schemes) and social assistance (as non-contributory welfare payments) unless
otherwise indicated.
2
that the majority of part time workers are women or that women often even completely stay
outside the formal labour market taking care of the family, benefits earned on insurance type
security systems often favour men.6 Failure to pay regard to such factual differences may lead
to indirect discrimination. Taking into account such circumstances the Committee on the
Elimination of Discrimination against Women with regard to Art 11(1)(e)7 as well as the
European Committee of Social Rights with respect to Art I of the Additional Protocol as also
Art 12(1) ESC8 demands state parties to review existing social security systems particularly
with regard to atypical forms of employments to eliminate any form of unequal treatment
particularly in the form of indirect discrimination.
On the other hand social security legislation that once legitimately distinguished between men
and women may become discriminatory over time because the factual situation of men and
women in the employment market is also developing.9 This became evident as the Human
Rights Committee under its individual complaint mechanism adopted its view in three Dutch
cases relating to social security. In two of the three cases the Committee saw a violation of
Article 26 CCPR in the fact that under the Dutch Unemployment Benefit Act a married
woman, in order to receive the particular benefits, had to prove that she was the
“breadwinner” of the household – a condition that did not apply to married men.10
This does not only show that the non-discrimination requirement calls for continuous review
of existing social security legislation to account for social developments, these cases can also
be regarded as major step in international human rights law as the non-discrimination clause
6
See Katarina Frostell, Martin Scheinin, Women, in: Social, Economic and Cultural Rights (Asbjorn Eide,
Catarina Krause and Allan Rosas, eds.) (2001), p.341.
7
See Report of the Committee on the Elimination of Discrimination against Women, A/54/38 (Part I)
(concluding observations on Liechtenstein’s state report), para.163; Art 11(1)(e) obligates states parties to
eliminate discrimination against women in the field of employment, and to ensure equal rights between men and
women, in particular… the right to social security, particularly in cases of retirement, unemployment, sickness,
invalidity and old age and other incapacity to work, as well as the right to paid leave; Art 11(2)(b) requires states
parties to adopt appropriate measures to introduce social benefits during maternity leave.
8
Equality between Women and Men in the European Social Charter: Study compiled on the basis of the case law
of the Committee of Independent Expert (1999) p.26, quoted in: Frostell/Scheinin, supra fn. 6, p.345, See also
Conclusions XV-1, vol.1 (Belgium), p.84; Several provisions of the Charter incorporate the principle of nondiscrimination either explicitly or through the interpretative practice of the Committee.
9
Jennifer Tooze, Social Security and Social Assistance, in: Economic and Social Rights under the EU Charter of
Fundamental Rights: a legal perspective ( Tamara Hervey and Jeff Kenner, eds.) (2003), p.175.
10
Zwaan-de Vries v. the Netherlands, No. 182/1984, Yearbook of the Human Rights Committee, vol.II (1987),
pp.300-304 and Broeks v. the Netherlands, No. 172/1984, Yearbook of the Human Rights Committee, vol.II
(1987), pp.293-297.
in Art 26 CCPR was determined to be applicable also in relation to the enjoyment of
economic, social and cultural rights.11
Even though discrimination on ground of gender has been the area in which Art 26 CCPR has
been applied most often, it has to be mentioned that all the prohibited grounds for
discrimination of Art 2612 may be applied also in the field of social and economic rights and
social security. This was illustrated for example in a far reaching decision of the Human
Rights Committee against France based on discrimination on the ground of nationality, falling
into the category of “other status” in the terms of the treaty provision.13 The Committee found
a violation of Art 26 since French legislation granted lower pensions to retired Senegalese
soldiers of the French army than to French citizens in an equal position. This case is
particularly significant as the raison d'être of the decision is that a differentiation between
nationals and non-nationals with regard to pension schemes is illegitimate under Art 26
CCPR.14
On the European level a case concerning Austria has to be mentioned. Although there is a
manifest difference between Art 26 CCPR and Art 14 ECHR, as the latter is limited to
prohibiting discrimination in the enjoyment of the rights and freedoms otherwise protected by
the Convention, the European Commission and the Court of Human Rights established in
Gaygusuz v. Austria15 (although not for the first time) that it is sufficient if a link to another
substantive article can be established without finding a separate violation of the other
provision.16 Austrian law at this time did not grant the claimant, a migrant worker with
Turkish citizenship, a right to social assistance benefits, paid after the expiration of the
maximum period of income based unemployment benefits as opposing to Austrian citizens,
which had this individual right. The Court found a violation of Art 14 on the ground of
nationality in connection with the property provision in Art 1 of Protocol No. 1 emphasizing
the nature of the right to emergency assistance as a pecuniary right in itself.
11
See Catarina Krause/Martin Scheinin, The Right not to be Discriminated Against: The Case of Social Security,
in: The Jurisprudence of Human Rights Law: a Comparative Interpretative Approach (Theodore Orlin, Allan
Rosas and Martin Scheinin, eds.) (2000), p.259.
12
Art 26 CCPR prohibits discrimination on any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
13
Gueye et.al. v. France, No. 196/1985, Report of the Human Rights Committee, A/44/40, p.189-195.
14
See also Krause/Scheinin, supra fn 11, p.262.
15
Reports of Judgments and Decisions 1996-IV, No. 14 (Judgm. of 16 September 1996), p.1129-1157.
16
The Court already established this potential of Art 14 with regard to social security benefits in inter alia
Schuler-Zgraggen v. Switzerland, Publications of the European Court of Human Rights, Series A, No.263
(Judgm. of 24 June 1993), concerning discrimination on the ground of gender.
As to the obligation of equal treatment between nationals and non-nationals with regard to
economic, social and cultural rights, which is frequently flouted by states, the European
Social Charter and its revised form of 1996 are only of limited impact concerning social
security (Art 12) and social assistance (Art 13).17 Both provisions include explicitly the
obligation of equal treatment but only between nationals of Contracting Parties.
With regard to the principle of equal treatment between men and women in social security in
European Community law two Directives have to be mentioned. Directive 79/7/EEC18 which
applies to equal treatment regarding statutory social security schemes and Directive
86/378/EEC19 (as amended by Directive 96/97/EC20) which applies to equal treatment
regarding occupational social security schemes. However, there are a number of exceptions to
the principle of equal treatment, as for example pensionable ages for men and women for the
purpose of granting old-age and retirement pensions (and the possible consequences thereof
for other benefits) are currently excluded from the scope of the Directives. 21 A lower
retirement age for women than those for men has initially been founded on the double work
burden by women, but taking into account social developments this can often be considered as
a disadvantage as it leads to an uncompetitive position of women in the labour market and can
result in lower pensions for women than for men. Various international treaty monitoring
bodies have expressed concerns about differing pensionable ages regarding their potential
discriminatory effects.22 European Community law contains therefore a certain ambiguity
concerning different retirement ages which led to a restrictive interpretation of the exception
rules by the European Court of Justice,23 for example in the Barber Case and did not allow
states to maintain different ages of retirement.24 In another case however, the Court held that
the purpose of the exception rule allows Member States to maintain temporarily the
17
See Louise Sperl, International Instruments for the Protection of Economic, Social and Cultural Rights, in:
Economic, Social and Cultural Rights of Asylum Seekers: Implementation of International Standards in Austria,
(Manfred Nowak and Hannes Tretter, eds.) (2004) pp.59.
18
OJ 1979 L 6/24 (19 December 1978).
19
OJ 1986 L 283/27 (24 July 1986).
20
OJ 1996 L 46/20 (20 December 1996).
21
Art 7(1) Directive 79/7/EEC; Art 9(a) Directive 86/378/EEC.
22
Committee on Economic, Social and Cultural Rights, consideration of reports submitted by States Parties
under Art 16 and 17 of the Covenant, Ukraine, E/C.12/1995/15, para.16; Concluding Observations of the Human
Rights Committee: Poland, CCPR/C/79/Add.110, para.13; Report of the Committee on the Elimination of
Discrimination against Women, A/53/38/Rev.1, para.234 (concluding comments on Bulgaria’s state report): The
Committee does not regard lower retirement ages for women as measure of affirmative action under Art 4.
23
For a more comprehensive discussion on this topic see Josephine Steiner, The Principle of Equal Treatment
for Men and Women in Social Security, in: Sex Equality Law in the European Union (Tamara Hervey and David
O’ Keeffe,eds.) (1996) as also in Krause/Scheinin, supra fn 11, pp.277.
24
Case C-262/88 Barber v. Guardian Royal Exchange Assurance Group (1990), ECR I-1889.
differences in pensionable ages in order to enable them to adapt their pension systems
progressively without disrupting the complex financial equilibrium.25
The foregoing discussion has been limited to equal treatment between men and women and
between nationals and non-nationals simply because these grounds of discrimination appear
more comprehensive in the judicial discussion in international and regional case law, which
does not at all mean that discrimination on other factors does not occur or that these are less
important to condemn. On the contrary, as also acknowledged by the General Comment No. 9
of the Committee on Economic, Social and Cultural Rights the prohibition of discrimination
is a justiciable part of the right to social security and requires judicial remedies.26 Therefore it
is of utmost importance to provide these judicial remedies for all groups facing discrimination
on all grounds.
25
26
Case C-9/91 R v. Secretary of State for Social Security ex parte EOC (1992), ECR I-4297.
General Comment 9, on the domestic application of the Covenant, E/C.12/1998/24 (1998).