The rights to social security and social assistance in the European Social Charter: Towards a positive content…but what sort of content?

Abstract

The rights to social security and social assistance are protected by the European Social Charter and its quasi-judicial body, the European Committee of Social Rights. Less is known about the precise content of these rights. Following a decision, published on 15 February 2023, on a collective complaint lodged by the Finnish Society of Social Rights, an NGO, this paper proposes to critically question the positive content given by the Committee to these rights, when it attaches – and even assimilates – certain legal requirements to one specific social indicator, the poverty threshold, defined restrictively.

Keywords

European Charter of Social Rights European Committee of Social Rights social security social assistance social indicator poverty threshold

Introduction

In 2021, the European Social Charter (ESC, also hereinafter ‘the Charter’) celebrated its 60^th anniversary, yet it remains a relatively unknown instrument, especially compared with its older sister, the European Convention on Human Rights. Perceived by its monitoring body as ‘a human rights instrument to complement the European Convention on Human Rights’ in the field of social rights,¹ the ESC is struggling to find its place in the arsenal of international and constitutional texts relating to social security.²

Following a decision, published on 15 February 2023, on a collective complaint lodged by the Finnish Society of Social Rights, an NGO, the aim of this paper is to examine the right to social security (Article 12 of the Charter) and the right to social assistance (Article 13 of the Charter) – two social rights of crucial importance – and the positive content given to them by the European Committee of Social Rights (ECSR, also hereinafter ‘the Committee’) the quasi-judicial body responsible for verifying compliance with the Charter by the States Parties (on the quasi-judicial nature of the ECSR: see below). Articles 12 and 13 of the Charter came to the fore after the Greek financial crisis at the beginning of the 2010s, when the Committee repeatedly condemned Greece for severely cutting social spending. In this paper, rather than focusing on the negative content of these rights, i.e. the non-regression principle, I propose to examine their (neglected) positive side. What does it mean positively to have the rights to social security and social assistance? In this paper, I propose to focus on the level of social security benefits considered adequate under the ESC.

While there has been substantial empirical literature on social indicators since the 1960s (Atkinson et al., 2002: 1), it was only relatively recently – less than 20 years ago – that the European Committee of Social Rights first began to use one particular social indicator to legally assess the level of social benefits offered by States Parties, thus comparing legal requirements expressed in normative instruments, on the one hand, with a factual social indicator, on the other. This indicator is the poverty threshold, defined as 50% of the median equivalised household income. By attaching – and even assimilating – certain legal requirements to one specific social indicator, the Committee gives legal force to what was originally a ‘tool for evaluating a country's level of social development and for assessing the impact of policy’ (Atkinson et al., 2002: 1). It is worth critically assessing this move, in an attempt to link the fundamental social rights literature produced by legal scholars with the social indicator systems developed by social policy scholars.

With the aim of discussing the legal interpretation of the Charter and the poverty threshold as a social indicator, I will take an attitude close to that adopted by Isabelle Hachez when, in 2014, she commented on the decisions of the ECSR taken in the context of the Greek financial crisis. While acknowledging the Committee’s important, even pioneering role, she refused to be overly eulogistic just because the ECSR promotes fundamental social rights; rather, she wished to offer ‘a critical and [… ] constructive commentary on its case law production, the importance of which we fully appreciate, as the two are not irreconcilable’³ (Hachez, 2014: 254). In this paper, I will show that the Committee’s case law is both innovative and avant-garde, but that it raises questions.

The article is structured as follows. In the first part, I will briefly recall, for those social policy scholars who might be less familiar with the issue, what the European Social Charter is and how the European Committee of Social Rights – the institution responsible for ensuring that it is properly observed by the States Parties – works, insofar as both the instrument and its supervisory body remain little known outside a small circle of specialists in international social security law. I will then review the scope and significance of the rights to social security (Article 12) and social assistance (Article 13) in the ESC, based on the Committee’s quasi case law, of which I will attempt to provide a reasoned summary. In the following section, taking the ECSR’s decision on the Finnish case as a starting point – and this will be the centrepiece of this contribution – I will examine the question of ‘how much is enough’ for the Committee, by proposing a critical legal analysis of the indicator it uses to assess the level of social security and social assistance benefits. I will show that the Committee considers a social security or social assistance benefit to be sufficient if it does not fall below 50% of the median equivalised household income. Although it gives substance to classically indeterminate and vague rights, the use of this sole indicator is open to criticism, for several reasons. Firstly, the choice of an (outdated) rate of 50% rather than 60%, at a time when the EU indicators have for a long time been tending towards a rate of 60%, is questionable. Secondly, I will consider the risk of reducing social insurance benefits to a mere safety net by using the same criterion to examine the level of social insurance and social assistance benefits. Finally, I will wonder why ILO Convention 102 and the European Code of Social Security have hardly been invoked by the Committee, even though they are explicitly mentioned in the successive versions of the European Social Charter and offer complementary standards.

The European Social Charter and its monitoring system, in a nutshell

Although the core of my contribution will discuss the use of a social indicator to assess compliance with the Charter’s legal requirements, it is necessary to take a brief detour in this section to review the Charter, before recalling the mechanisms for monitoring compliance.⁴

The European Social Charter, a brief reminder

The European Social Charter is an instrument adopted by the Council of Europe, a supranational organisation created in the aftermath of the Second World War and open to as many European countries as possible (Wassenberg, 2013: 33). The Charter is a human rights instrument of the Council of Europe, intended to complement the European Convention on Human Rights in the field of economic and social rights.⁵ Although the Council of Europe does not specialise in social matters, the preamble to its 1949 Statute already sets out an objective of ‘economic and social progress’.⁶

The first version of the European Social Charter was adopted in 1961, with the signatures of 13 member states of the Council of Europe. It came into force in 1965, after five countries had ratified it. At the end of the 1980s, there was a movement to improve the Charter and make it more effective. Three protocols were issued between 1988 and 1995, adding new rights, improving the supervisory mechanism, and introducing a collective complaints system. This drive to modernise the Charter culminated in 1996 with the adoption of the revised European Social Charter.⁷

To this day, 46 countries – no longer 47, since the decision taken by the Council of Ministers on 16 March 2022 to exclude Russia from the Council of Europe⁸ – have signed and ratified either the 1961 Charter or the revised Charter of 1996. All EU member countries have ratified one of the two Charters.⁹

The Revised European Social Charter consists of a preamble, a first part containing 31 rights and principles to guide the signatory States in the exercise of their policy, 31 articles containing the obligations binding on the signatory States and 15 articles – numbered A to O – on procedural issues.

To become Parties to the Charter, States do not necessarily have to accept the Charter in its entirety. Under Article A of the Revised Charter, ratification of the Charter is based on an ‘à la carte’ system.¹⁰ The States Parties must accept at least six of the nine articles known as ‘hard core provisions’, i.e. the articles concerning the right to work (Article 1), the right to freedom of association (Article 5), the right to collective bargaining (Article 6), the right of children and young persons to protection (Article 7), the right to social security (Article 12), the right to social and medical assistance (Article 13), the right of the family to social, legal and economic protection (Article 16), the right of migrant workers and their families to protection and assistance (Article 19) and, finally, the right to equality of opportunity and treatment in respect of employment and occupation, without discrimination on grounds of sex (Article 20). The Parties must also accept a number of additional provisions, bringing the total to 16 articles or 63 paragraphs. Only France, Portugal and Spain have ratified all the provisions of the Revised Charter.¹¹

Bonnechère points out that ‘even in States with a monist constitution […] it is difficult to consider that the European Social Charter can be invoked directly by individuals’.¹² Nevertheless, the Charter can have indirect effects, since it has the status of an international treaty, and national judges can use it to interpret national law in accordance with the Charter and the interpretations of the ECSR, depending on the country (Bonnechère, 2001).

Mechanisms for monitoring compliance with the Charter

Since 1961, a committee of 15 experts appointed by the Committee of Ministers of the Council of Europe has been responsible for monitoring compliance with the ESC. The European Committee of Social Rights was originally called the Committee of Independent Experts, but was renamed in 1998 ‘in order to mark more clearly its development into a quasi-judicial human rights body’ (De Schutter, 2010: 15).

The Committee ‘is accepted as the sole entity with authority to make legal interpretation’ of the Charter (Cullen, 2009: 69). In its interpretation of the Charter, the ECSR stresses the ‘living’ nature of the Charter and the fact that it must be interpreted ‘in light of new emerging issues and conditions’.¹³ Furthermore, the Committee refuses to accept a purely theoretical interpretation of the legislation of the States Parties, but instead reviews both the legislation and the practices of the States, ensuring that rights are protected not only in theory but also in practice.¹⁴

The monitoring carried out by the ECSR operates on two levels, through the reporting procedure and the collective complaints procedure.

Reporting procedure. Since 1961, the Committee has been assessing the compliance of States Parties with the Charter, based on the Parties’ regular reporting of their policy to the Charter.

Originally, these reports were provided by the States biennially on all the articles or paragraphs they had accepted. In 1989, the system was reformed and while States still had to submit national reports every two years on the ‘hard core provisions’, they only had to report on half of the other provisions at each submission: i.e. half of the non-‘hard core provisions’ were assessed in year 1 and the other half in year 3, etc. In 2007, the system was further streamlined and Signatory States have now to submit an annual report focused on a particular theme. Since the introduction of this system, these reports have covered, successively: employment, training and equal opportunities (year 1), health, social security and social protection (year 2), labour rights (year 3) and children, families and migrants (year 4). This way, each year the Committee evaluates the reports of all countries on the same subject, enabling a comparison between States and a more systematic approach to any difficulties that may arise (De Schutter, 2010: 19). In 2014, the reporting obligations for States that have accepted the collective complaints procedure were also simplified.

When the Committee identifies non-compliant situations, the Governmental Committee – made up of representatives of all the States Parties of the Charter – requires the States to explain the non-compliance, as well as the measures to be implemented to make them compliant as quickly as possible. The Governmental Committee can then ask the Council of Ministers – i.e. all the foreign affairs ministers of the Council of Europe – to make recommendations to recalcitrant States to comply with the requirements of the ESC. The Committee of Ministers does not interpret the Charter, or examine whether the ECSR has interpreted it correctly. Its action is limited to issuing recommendations to the State concerned. The Committee of Ministers cannot question the legal assessment of the European Committee of Social Rights. ¹⁵

Collective complaints procedure. The second way in which the Committee can assess the compliance of national legislation and practices with the Charter is through the collective complaints procedure. This procedure was introduced in 1996 ‘to improve the effective enforcement of the social rights guaranteed by the Charter’, with the idea that ‘this aim could be achieved in particular by the establishment of a collective complaints procedure, which, inter alia, would strengthen the participation of management and labour and of non-governmental organisations’.¹⁶ The States Parties decide whether they wish to be bound by the Protocol and therefore by the collective complaints procedure. Currently, 14 countries are bound by the collective complaints procedure: Belgium, Cyprus, Croatia, Spain, Finland, France, Greece, Ireland, Italy, Norway, the Netherlands, Portugal, the Czech Republic and Sweden.

The collective complaint procedure can be initiated by organisations recognised as having this right in Article 1 of the Protocol, i.e.: ‘(a) international organisations of employers and trade unions; (b) other international non-governmental organisations which have consultative status with the Council of Europe and have been put on a list established for this purpose by the Governmental Committee; [and] (c) representative national organisations of employers and trade unions within the jurisdiction of the Conctracting Party against which they have lodged a complaint’. In addition to these three types of organisation, Article 2 of the Protocol allows any State Party to ‘declare that it recognises the right of any other representative national non-governmental organisation within its juridisction which has particular competence in the matters governed by the Charter, to lodge complaints against it’. So far, only Finland has used this possibility.

The Committee reaches a decision on whether the State in question ‘has ensured the satisfactory application of the provision of the Charter Convention referred to in the complaint’.¹⁷ The decision is sent to the Committee of Ministers, which, if it finds that there has been a violation of the Charter, makes a recommendation to the State concerned. In its next report to the Committee, the State must indicate ‘the measures it has taken to give effect to the Committee of Ministers’ recommendation’.¹⁸

The rights to social security and social assistance in the European Social Charter

Among the main rights recognised by the Charter are, as regards social protection systems, the right to social security (Article 12) and the right to social and medical assistance (Article 13).¹⁹

These rights are considered by the Charter as being fundamental: they are among the nine rights, at least six of which States are obliged to accept in order to be bound by the Charter. They are therefore ‘hard core provisions’ of the European Social Charter, which shows the importance that the Council of Europe and its Member States wished to attach to them.

The Charter does not define the notions of social security or social assistance. The Committee nevertheless clarifies the difference between the two in its various interpretations of Articles 12 and 13. What emerges from the Committee's quasi case law is that the right to social security covers benefits ‘granted in the event of social risk which arise, but they are not intended to compensate for a potential state of need which could result from the risk itself’.²⁰ The benefits referred to in Article 12 must therefore be targeted at a particular risk, and not simply based on an individual assessment via a means test.^21,22

In this section, I will briefly describe the right to social security under Article 12 of the Charter, and the right to social assistance under Article 13, without addressing the right to medical assistance, which is not the focus of this paper.

The right to social security (Article 12 of the ESC)

Article 12 of the Charter reads as follows:

With a view to ensuring the effective exercise of the right to social security, the Parties undertake:

to establish or maintain a system of social security;

to maintain the social security system at a satisfactory level at least equal to that necessary for the ratification of the European Code of Social Security;

to endeavour to raise progressively the system of social security to a higher level;

to take steps, by the conclusion of appropriate bilateral and multilateral agreements or by other means, and subject to the conditions laid down in such agreements, in order to ensure:

equal treatment with their own nationals of the nationals of other Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Parties;

the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Parties.

Under this Article – in both the 1961 and Revised Charters – States Parties must first establish and maintain a system of social security. According to the ECSR, this right exists within the meaning of the Charter if: (a) the social security system covers the traditional social risks, through medical care, sickness benefit, unemployment benefit, old-age benefit, employment injury benefit, family benefit and maternity benefit; (b) a substantial part of the population is covered – the active population for the risks linked to the exercise of a professional activity; and (c) this system is financed collectively, through professional contributions or from the State budget.²³ It is under this provision that the level of social security benefits is assessed by the ECSR (see below). To date, only four States that have ratified the Charter have refused to be bound by Article 12 (1).²⁴

Secondly, the States must undertake to maintain the social security system at a satisfactory level, at least equal to that required for ratification of the European Code of Social Security. The reference to the European Code of Social Security is a new feature of the Revised Social Charter. Before its adoption, the 1961 Social Charter referred to the classic International Labour Organization Convention No. 102 concerning Minimum Standards of Social Security (hereinafter ‘ILO Convention 102’).²⁵ The European Code of Social Security is a little-known Council of Europe instrument whose aim is ‘to encourage all members to develop further their systems of social security’ by setting requirements at a ‘higher level than the minimum standards embodied in International Labour Convention No. 102 concerning Minimum Standards of Social Security’.²⁶

The European Code defines nine types of benefit corresponding to nine social risks, as well as the minimum standards applicable for each of them (medical care, sickness benefit, unemployment benefit, old-age benefit, employment injury benefit, family benefit, maternity benefit, invalidity benefit and survivors’ benefit). To date, 21 Council of Europe countries have ratified the European Code of Social Security, seven have ratified the additional protocol reinforcing the minimum standards and only one – the Netherlands – has ratified the revised European Code.²⁷ The revised European Code is not currently in force, as it requires ratification by at least two countries.²⁸

When assessing a State Party’s compliance with the requirements set out in Article 12 (2), the Committee's reasoning differs depending on whether or not the State in question has ratified the European Code of Social Security. If it has done so, States must give ‘full effect’²⁹ to at least six out of the nine risks provided by the Code. The Committee takes into consideration findings under this treaty, such as the resolutions of the Committee of Ministers on the compliance of the States.³⁰ If the State has not ratified the European Code, the Committee ‘has to make its own assessment’.³¹ For States that have not ratified the revised European Social Charter and are subject to the 1961 European Social Charter, domestic legislation is therefore checked in the light of the requirements of ILO Convention 102. If the State has also ratified the European Code, the ECSR will refer to the conclusions of the Committee of Ministers on the application of the European Code of Social Security. As ILO Convention 102 requires compliance with three standards, as opposed to nine for the European Code of Social Security, compliance with the Code necessarily entails compliance with the requirements set out in ILO Convention 102. Ten States that have ratified either of the Charters have refused to be bound by Article 12 (2).³²

Under the third paragraph of Article 12, the States parties must undertake to continuously improve their social security systems. To assess whether States’ laws comply with this Charter obligation, the Committee observes ‘whether the protection provided by the social security system has been extended to cover more of the population and whether new risks/benefits have been introduced’.³³ An unlawful situation under Articles 12 (1) and 12 (2) does not automatically mean a situation contrary to Article 12 (3), as long as the social security system is evolving, even if it has not yet reached the standards set by Articles 12 (1) and 12 (2).³⁴ Restrictions to the right to social security are examined under this paragraph. In view of the socio-economic conditions of recent decades, the Committee's review of Article 12 (3) has increasingly become ‘a “defensive” exercise’ to check that a restriction on the right to social security is not contrary to the Charter (Mikkola, 2015: 157). Not every restriction on the right to social security is prohibited. The Committee analyses the restriction in the light of various criteria, such as the nature and the extent of the changes, the reasons given for the changes³⁵ or the existence of social assistance measures to compensate for the changes made.³⁶ Any restriction on the right must comply with Article G of the Charter, which stipulates that only restrictions ‘prescribed by law and […] necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals’ can be permitted. The proportionality of the restriction must be analysed, including its effect on the most vulnerable populations (Eleveld and Katrougalos, 2023: 78). Furthermore, the Committee has already ruled that while individual measures may comply with the Charter, the cumulative effect of several measures may contravene Article 12 (3).³⁷

Finally, Article 12 (4) provides for the right of persons from other States Parties to benefit from an effective right to social security when they travel to other signatory States. This last paragraph lays down two principles: the equal treatment of citizens of the signatory States and the portability of their rights (Lukas, 2021: 182).³⁸

The right to social assistance (Article 13 of the ESC)

Article 13 of the Charter provides for the right to social assistance, in other words a ‘social safety net’ (Lukas, 2021: 186) for people in a state of social need.³⁹ It reads as follows:

With a view to ensuring the effective exercise of the right to social and medical assistance, the Parties undertake:

to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition;

to ensure that persons receiving such assistance shall not, for that reason, suffer from a diminution of their political or social rights;

to provide that everyone may receive by appropriate public or private services such advice and personal help as may required to prevent, to remove, or to alleviate personal or family want;

to apply the provisions referred to in paragraphs 1,2 and 3 of this article on an equal footing with their nationals to nationals of other Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11 December 1953.

Article 13 (1) of the Charter contains the right of everyone to receive assistance allowances and medical assistance based on a state of need. The Charter ‘breaks with the traditional concept of assistance linked to the moral duty of charity’ (Dalli, 2020: 8) by enshrining a genuine right for individuals. Under this provision, social assistance benefits must be granted without a time limit, as long as the person cannot obtain sufficient resources by other means.⁴⁰ The level of compensation provided by the States Parties is assessed on the basis of Article 13 (1)(see below).

Secondly, the Charter prohibits discrimination – direct and indirect⁴¹ – when social and political rights are granted to people receiving assistance. The underlying idea is that people receiving social assistance should ‘not to be regarded as second-class citizens, merely because they [are] unable to support themselves’.⁴² Article 13 (3) obliges states parties to provide information and assistance to people at risk of poverty. Finally, under Article 13 (4), States must guarantee access to social assistance and medical aid to nationals of other States Parties who are lawfully present on their territory.

How much is enough?

The European Committee of Social Rights gives positive content to the right to social security and social assistance. Indeed, in its analysis of national legislations and practices, the Committee does not limit its analysis to prohibiting retrogression, thereby giving a negative aspect to the rights to social security and social assistance. On the contrary, it establishes that the realisation of these rights implies, positively speaking, a guarantee of benefits equivalent to a certain level. In this section, I will clarify the (only) social indicator used by the Committee to check whether a social benefit is adequate. I will then propose a critical discussion of the reasoning used by the Committee to justify its choice of this single social indicator.

What the ECSR has to say about the level of social protection imposed by the Charter

When the Committee examines whether the level of benefits granted by the State Party is adequate, it does so in the light of various paragraphs of Articles 12 and 13 of the Charter. Regarding the level of social security benefits, the Committee bases itself on Article 12 (1), which concerns the existence of an adequate social security system,⁴³ on Article 12 (2), which ensures that benefits are equivalent to the level required to ratify the European Code of Social Security, or on Articles 12 (1) and 12 (3), in the event of a reduction in the compensation provided. Finally, the level of social assistance benefits is examined when the Committee verifies compliance with Article 13 (1) of the Charter.

The Committee uses a single criterion to assess the level of compensation offered, regardless of whether it is reviewing Articles 12 (1), 12 (3) or 13 (1), although it sometimes refers theoretically to the consideration of previous remuneration, without evaluating the legislation on this aspect.⁴⁴ The Committee considers a social security or social assistance benefit to be sufficient if it does not fall below a poverty threshold, which it defines as 50% of median equivalised household income.

This criterion appeared for the first time in the case law of the Committee when Article 12 (1) of the Charter was examined. Although the Committee has repeatedly stated that social security benefits must be ‘efficient and adequate’ and that ‘income-substituting benefits should not be so low as to result in the beneficiaries falling into poverty’,⁴⁵ it was not until 2004 that the ECSR set itself a precise numerical indicator as a reference point. The Committee established this indicator when it issued its conclusions of non-compliance against Romania,⁴⁶ Lithuania,⁴⁷ Estonia,⁴⁸ Bulgaria⁴⁹ and then Poland.⁵⁰ When the Lithuanian delegation highlighted to the Governmental Committee of the European Social Charter the fact that this was the first time that a non-compliance report had been issued by the Committee based on Article 12 (1), the Committee secretariat confirmed this:

‘[…] it was indeed the first time that conclusions of non-conformity had been reached on this ground, but the ECSR had always held under Article 12§1 that social security benefits must be efficient and adequate. The new development was that, as opposed to the past, the ECSR now systematically made reference to the poverty threshold (defined as 50% of median equivalised household income) when assessing benefit levels. […] In effect, the poverty threshold defined as indicated above is an extremely low threshold which in the ECSR's view constitutes an absolute minimum under 12§1’⁵¹

Regarding social assistance benefits, the Committee had already considered that their amount was too low, but without reference to any indicator.⁵² It was only two years after introducing the poverty threshold indicator for social security benefits, thus in 2006, that the Committee used the same indicator to assess compliance with Article 13 (1) by the States Parties (Mikkola, 2015: 161), reaching conclusions of non-compliance on the grounds of benefits deemed too low in the case of Spain,⁵³ Luxembourg,⁵⁴ and Croatia.⁵⁵

In 2005, the Committee quickly refined its technique for assessing the level of benefits. It has since then remained unchanged (Mikkola, 2015: 155). The Committee’s reasoning is as follows:

‘where an income-substituting benefit stands between 40% and 50% of median equivalised income [thus below the 50% threshold that had just been adopted], the Committee will also take into account other supplementary benefits, for example social assistance and housing allowance, where applicable […] However, when the minimum level of an income-substituting benefit falls below 40% of median equivalised income, the Committee will not consider that its aggregation with other benefits can bring the situation into conformity and holds that the level is manifestly inadequate […].’⁵⁶

At that time, the Committee chose to compare the level of social benefits with the 50% of median equivalised household income threshold, on the basis of data from Eurostat, the European Commission’s Directorate-General responsible for providing statistical information to the European Union institutions. The timing of the Committee’s decision is somewhat surprising, since a few years earlier, the Member States of the European Union, meeting at their summit in Laeken, had officially decided to adopt a definition of the at-risk-of-poverty rate as 60% of median equivalised household income (see below).⁵⁷ Since then, this percentage of 60 has been the norm in EU legislation.⁵⁸

Equivalent disposable income – the term used by the Committee, even though it sometimes summarises it and sometimes erroneously refers to it as equivalent income – is ‘the total income of a household, after tax and other deductions, available for spending or saving, divided by the number of members of the household converted into equivalent adults’.⁵⁹ This indicator is used to calculate several poverty indices, such as the at-risk-of-poverty rate, which is ‘the proportion of people whose equivalised disposable income (after social transfers) is below the at-risk-of-poverty threshold, which is set at 60% of the national median equivalised disposable income after social transfers’.⁶⁰

Since 2004 and the systematic use of the threshold of 50% of median equivalised household income, the European Committee of Social Rights has, on numerous occasions, issued conclusions of non-compliance against countries for failure to meet this threshold in their social benefits.⁶¹ In addition, several collective complaints cases have resulted in countries being declared in breach of Articles 12 and 13 on the grounds of inadequate levels of provision.⁶² In various cases concerning the situation in Greece following the financial crisis, the Committee examined compliance with Articles 12 and 13 and, more specifically, the prohibition on States reducing social rights, enshrined in Article 12 (3). These various decisions have been the subject of considerable literature, which has focused mainly on the tension between budgetary measures and the rights to social security and social assistance in the ESC, on the fact that meeting EU obligations does not exempt the country from its obligation to respect the Charter (De Becker, 2015; Ghailani, 2017; Nivard, 2013; Papadopoulos, 2019; Stangos, 2013), or on the not always equally rigorous reasoning of the ECSR in its decisions (Hachez, 2014). However, the quantitative benchmark used by the Committee to assess the legal conformity with the Charter of the contested national reforms has not been discussed.

As regards the precise level of provision that has to be guaranteed, the most important quasi case law of the Committee refers not to Greece, but to Finland. In three cases submitted based on a collective complaint by the Finnish Society of Social Rights in 2012,⁶³ 2014⁶⁴ and 2018,⁶⁵ the Committee had to rule on the level of various social security benefits granted in Finland (pension, sickness, maternity, unemployment). The Court ruled that some of these benefits were not of a sufficient level, in light of Articles 12(1), 12(3) and 13(1) of the Charter.

Is the adequacy indicator chosen by the ECSR sufficient? Reasons for doubt

The choice made by the European Committee of Social Rights may come as a surprise and can be criticised for several reasons. First of all, why does it persist in defining the poverty threshold as 50% of median equivalised household income, whereas Eurostat has been defining it for two decades now as 60% of median equivalised household income (see next section)? Secondly, I will question the Committee’s current practice of using one single indicator to assess both social security benefits (Article 12) and social assistance benefits (Article 13), thereby reducing social security schemes to a minimum safety net and departing from their primary objective, which is to compensate for loss of income in the event of the occurrence of a social risk. Finally, I will discuss Article 12 (2) of the Charter, which, in my view, is currently used too little and inappropriately by the Committee, even though it has very interesting potential for assessing the level of social security benefits granted by the States Parties.

Why maintain a 50% rather than a 60% threshold to define the risk of poverty? The first question concerns the Committee’s odd choice to stick to a poverty line defined as 50% of median equivalised household income. The general reference to the condition of poverty appears to be a logical choice in the light of Article 13 (1) of the Charter – and, to a lesser extent, in the light of Article 12, as we shall see below – as this provision concerns benefits linked to the state of need of the people receiving them. It therefore seems justified to refer to the poverty threshold to assess whether the benefits provided are adequate.

Nevertheless, the specific definition adopted by the Committee is open to criticism. Although the EU Member States and Eurostat consider that the poverty threshold is set at 60% of the national median equivalised disposable income, the Committee has chosen to set the threshold at 50%. Subsequently, it has reiterated this figure in all reports of non-compliance with Article 12 (1) on the grounds of inadequate benefit, as well as in the few collective complaints lodged under the same provision.⁶⁶ It is inaccurate to state that 50% is the rate used by Eurostat, as the Committee has repeatedly maintained in its conclusions of non-compliance or in its decisions on the merits.⁶⁷ The poverty threshold chosen by the Committee is outdated compared to the current standards used by Eurostat and more recent literature on poverty indicators (Van Limberghen et al., 2021: 67. On indicators, see Atkinson et al., 2002). In addition, the shortcut taken by the Committee, which states that it uses Eurostat figures and definitions without mentioning that it had chosen an indicator lower than that of Eurostat, is obviously misleading. Of course, it could be argued that the Council of Europe is not the same institution as the European Union and that the ECSR can therefore decide not to refer to the European Union’s indicators. However, this view does not hold when the Committee itself refers to Eurostat indicators and the definitions produced by Eurostat.

The Committee is aware of this discrepancy between the Eurostat standard and the standard it uses itself. The 2006 annual report of the Governmental Committee states the following:

‘The [European Trade Union Confederation] representative said that in principle the poverty threshold should be 60% rather than 50% of median income, and that according to this criterion the situation was even worse.

The Secretariat said that the ECSR’s decision to choose the 50% threshold had been quite deliberate, and that such a level meant that it only adopted negative conclusions where the situation was manifestly unsatisfactory.’ ⁶⁸

The Committee therefore deliberately chose the 50% indicator instead of the recognised one of 60%. The justification given – that this was decided in order to condemn only ‘manifestly unsatisfactory’ situations – is not convincing. Indeed, Article 13 (1) requires States Parties to ensure that any person without adequate resources be granted adequate assistance. No reference is made in the text of the Charter, or even in the assessments made by the Committee, to a situation that is manifestly unsatisfactory. In so doing, the Committee adds a condition to the text of the Charter by condemning only situations that are manifestly contrary to Article 13 (1). By not condemning situations where a social assistance benefit is between 50 and 60% of median income, the Committee is applying the Charter in a minimalist way, when it could, on the contrary, apply it in a maximalist way and work towards higher social coverage in the countries of the Council of Europe who have ratified the Charter,⁶⁹ in line with the generally acknowledged progressive character of social rights in international human rights law.⁷⁰

What about the obligation to ‘maintain the social security system at a satisfactory level’ (Article 12 (2))? The second criticism that can be made of the Committee’s assessment of the level of benefits under Article 12 (1) is that it carries out the same examination as for Article 13 (1). This is conceptually inconsistent, and furthermore at odds with the Committee’s own case law.

The Committee has framed the material scope of Article 12 as covering benefits linked to the occurrence of a risk and not those whose purpose is to cover a state of need (see above). By referring to the poverty threshold, the Committee seems to introduce an element of assistance (granting a social benefit with the aim of alleviating extreme poverty) into the assessment of an insurance benefit (granting a social benefit in the event of the occurrence of a defined social risk). Given that the benefits covered by Article 12 should not be linked to any condition of need, it is surprising to refer to a risk-of-poverty criterion, moreover tightly defined (see above), to assess the adequacy of the benefits in question.

In this vein, the Committee itself points out that the purpose of the benefits offered under Article 12 is not the same as under Article 13. The Committee has already indicated that ‘any restrictive developments should not undermine the effective social protection of all members of society against social and economic risks and should not transform the social security system into a basic social assistance system.’⁷¹ The aim of social security benefits stricto sensu is to maintain the standard of living achieved through previous employment (Eleveld and Katrougalos, 2023: 68).

The Committee, when setting out the principles applicable to the Article 12 assessment, refers on several occasions to the former remuneration of the person facing a social risk (illness, unemployment, old age, etc.).⁷² In the first case between the Finnish Society of Social Rights and Finland, for instance, in 2014, the Committee pointed out, when examining the compliance of several benefits provided under Finnish law (sickness benefit, maternity benefit and rehabilitation benefit, basic unemployment allowance and guarantee pension) with Article 12 (1), that ‘the level of benefits should be such as to stand in reasonable proportion to the previous income and they should in any event not fall below a threshold defined as 50% of the median equivalised income’.⁷³ However, in its subsequent examination of the situation in Finland, the Committee no longer makes any reference to the former remuneration, and focuses solely on whether the poverty threshold – formerly a kind of backstop, now the unique benchmark – has been met. The Committee did not explain what a ‘reasonable proportion’ should be.

The reference to the poverty threshold can be explained by the fact that social security benefits, while having the primary objective of maintaining the previous standard of living, also have the purpose of preventing beneficiaries from falling into poverty. Mikkola (2015) explains that the levels of compensation defined by the European Social Security Code and ILO Convention 102 can, for example, result in significant poverty for people with low wages. It is possibly for this reason that the Committee decided that benefits, even linked to a percentage of lost earnings, could not fall below the poverty line. The reference to the poverty threshold in considering Article 12 (1) is therefore understandable. Nevertheless, the fact that the Committee’s examination is limited to checking whether the benefits are above this threshold should give us food for thought. This approach blurs the line between insurance-type benefits and assistance-type benefits.⁷⁴

Social security schemes reduced to just a minimum safety net? To assess the amount of social security benefits – in the strictest sense, excluding social assistance benefits – offered by countries that have ratified the Charter, it seems that two parts of Article 12 can be used by the Committee: Articles 12 (1) and 12 (2). While the first is widely used to assess social security benefits by reference to the poverty threshold, the second is in fact under-utilised by the Committee.⁷⁵ It is striking to note that only 20 conclusions of non-compliance have been issued based on this Article 12 (2), whereas, by way of comparison, 128 have been issued based on Article 12 (1). It is true that slightly fewer countries are bound by Article 12 (2) than by Article 12 (1),⁷⁶ but this alone cannot explain the difference, as the vast majority of the Council of Europe Member States are bound by both.

Furthermore, in the only decision on the merits based on an Article 12 (2) complaint, delivered in 2014, the Committee did not examine the alleged violation of Article 12 (2), but instead, in the preliminary considerations of its decision, avoided altogether the question of the conformity of Finnish legislation. The Committee recalled that since Finland had ratified neither the European Code of Social Security nor ILO Convention No 102, the Committee had to make its own assessment of the conformity of the national legislation with Article 12 (2) (see above). The Committee then simply refers to the conclusions it reached in 2013 on Article 12 (2), to conclude that Finland is complying with its obligations:

‘The Committee took note that the social security system in Finland covered all the nine branches with a satisfactory personal scope. It further noted that earnings-related pensions had remained at a stable level in relation to pay (the net compensation rate was around 65%). Insurance against employment accidents or occupational diseases guaranteed a high compensation rate, over 90% of the recipient's net pay. The compensation rate of the unemployment insurance was around 60% of the net pay. Daily sickness allowances compensated for almost 90% of the net pay.’⁷⁷

On this basis, the Committee considers that it has no grounds for concluding that Finland is in breach of its obligations under Article 12 (2). More specifically, the Committee underlines ‘the absence of figures on the minimum amounts of benefits calculated for a standard beneficiary as set out in a schedule to Part IX of the Code and based on the three models of benefit provision defined in Articles 65, 66 and 67 of the Code.’

When reading the decision, one cannot help but be surprised by the fact that the Committee discarded the question of Article 12 (2) in the preamble of its decision, without analysing it in detail in a dedicated section. While we can understand that the Committee lacked some of the information needed to make a sufficiently accurate analysis, we nevertheless think that it missed an opportunity to formally express its concerns on this matter and raise questions. Furthermore, the Committee considered the replacement rates indicated by Finland in 2013, without taking into account their context. A reading of the 2013 conclusions provides no additional information on the rates indicated. Are they applicable to all workers, regardless of their family situation? Do they fluctuate over time? These questions remain unanswered.

Perhaps the Committee’s monitoring exercise in 2013 was more rigorous than it would appear from the published conclusions on compliance. However, this is doubtful, particularly since the Committee does not seem to be in possession of the information essential for assessing compliance with Article 12 (2), namely, the ‘figures on the minimum amounts of benefits calculated for a standard beneficiary as set out in a schedule to Part IX of the Code and based on the three models of benefit provision defined in Articles 65, 66 and 67 of the Code’.

In its examination of Article 12 (1), the Committee sometimes reaches conclusions of non-compliance in the absence of information provided by the States Parties, considering that the burden of proof lies with them.⁷⁸ The Committee could have reached such conclusions of non-compliance regarding Article 12 (2) on this basis or, at the very least, could have threatened to do so. In its 2013 conclusions, the Committee did not even note the lack of information. However, in 2022 it pointed out this absence in its decisions on the compliance assessment, though refraining from making any further comment. Thus, when the Committee conducts its own review of a country's level of social security, to determine whether it meets the threshold required to ratify the European Code of Social Security, the analysis produced is not convincing.

Disappointingly, neither does it deal satisfactorily with countries which have ratified the Code (or ILO Convention No. 102). When the Committee examines the situation of countries that have ratified the European Code of Social Security (or its ILO equivalent), it simply relies on the conclusions of their competent bodies to assess compliance with these instruments. This is regrettable for several reasons. Firstly, by refusing to carry out its own analysis, the Committee cannot create its own particular and systemic interpretations, in line with its interpretations of the other provisions of the Charter. Secondly, the Committee of the Ministers’ monitoring of compliance with the European Code of Social Security is not very in depth in terms of the level of benefits required. If we take the case of Belgium – the legislation most familiar to the author, chosen here for this reason – the very brief and superficial examination of the level of social security benefits is extremely frustrating. For example, Belgium illustrates its compliance with the minimum replacement percentages laid down in the European Code of Social Security by simply considering the replacement rate during the first month of unemployment for a father with two children.⁷⁹ However, Belgian unemployment regulations stipulate a significant degression of benefits, which are even reduced to a lump sum after a certain period. However, the Committee does not address this issue in its 2022 report on Belgium,⁸⁰ thus basing itself on a truncated perception.

It is doubtful whether the ECSR’s review of Article 12 (2) is effective. When it carries out the review itself, the Committee does not seem to carry out a complete analysis, and merely regrets the absence of certain information (if it mentions this at all). When other bodies have carried out an examination, the ECSR simply refers to it, without going any further. It takes the other result for granted, even if there are doubts as to how meticulous the examination has been.

It seems to us that Article 12 (2) of the Charter could be used much more effectively if the Committee decided to request further specific information from the States Parties and to make a more in-depth assessment of the level of social security benefits.⁸¹ For example, the Committee should check the replacement rates of different typical workers at various points in the benefit period, and not just consider the highest replacement rate, i.e. the benefit received by the head of household in the first month of the benefit period.⁸² Another useful piece of information to request would be what proportion of people are subject to which type of rate.⁸³

Conclusion: positive content given to the right to social security and social assistance - a good thing in itself but the indicators should be reviewed

The thoughtful reader will have understood that the Finnish case chosen to introduce this paper was a gateway to a broader analysis of the right to social security and social assistance in the ESC. This detour via the Finnish case allows me, as I close this paper, to make a number of nuanced observations. First of all, the European Committee of Social Rights is to be applauded for its pioneering role in the field of social rights. By systematically condemning Greece at the time of the dismantling of various pieces of national social legislation, de facto opposing both European and international institutions, the Committee had already shown itself to be an important actor in the protection of social security and social assistance rights. Similarly, by giving positive content to these rights, the Committee is fulfilling a pioneering role. All this is to be recognised and applauded.

However, I do not believe that all the Committee’s work and considerations are faultless. The actual content given by the Committee to the right to social security and social assistance can be quite confusing. Indeed, I have shown that the Committee considers a social security or social assistance benefit to be sufficient if it does not fall below 50% of median equivalised household income. I have attempted to demonstrate in this paper that the use of this single indicator by the ECSR poses several difficulties. The first is that, although the Committee is not bound by EU standards, it thereby deviates from the European Union’s indicator of a poverty threshold at 60% of median equivalised household income. This is unfortunate in terms of consistency, but more importantly, because by adopting a lower threshold, the ECSR provides less protection to recipients of social security benefits. The second critique I have voiced of the use of this single criterion is that the right to social insurance is evaluated in the same way as the right to social assistance. It is regrettable that the Committee did not choose to use distinct criteria for evaluating the level of benefits, according to their purpose – compensating for lost income or preventing poverty. Lastly, I questioned the near absence of references made by the Committee to ILO Convention 102 and the European Code of Social Security, which could maybe be useful instruments to provide a better understanding of what would constitute an adequate level of social security and social assistance.

Perhaps some of the Committee’s current limitations derive from the fact that it deals with objective disputes and does not benefit from an initial analysis carried out by the Member States and, therefore, by the courts with the closest knowledge of national legislation. Indeed, referral to the Committee is not subject to exhaustion of domestic remedies.

As I have shown, we could have imagined the Committee taking into account elements other than the poverty threshold or, at the very least, using a higher threshold to consider social security benefits such as, for example, a percentage higher than 50% of median equivalised household income. The Committee’s current line of reasoning runs the very real risk of reducing social security to social assistance, forgetting one purpose of social security, which is to compensate for loss of income.

As I conclude this paper, I can only stress the importance of distinguishing between social security and social assistance, and the need to link the former to loss of previous income and to increase the latter, so that it at least reaches the now generally accepted poverty threshold of 60% of median equivalised household income.

Footnotes

Acknowledgements

I warmly thank Professor Daniel Dumont for giving me the idea for this paper, and for sharing his insights with me. His meticulous proofreading and advice were extremely valuable. I also thank Laura Marot for her English proofreading of an earlier version of this manuscript. Lastly, I wish to thank the two anonymous peer reviewers for their constructive and insightful feedback. All remaining errors and shortcomings are solely my responsibility.

Declaration of conflicting interests

The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.

Funding

The author received no financial support for the research, authorship and/or publication of this article.

ORCID iD

Juliette Gilman

Notes

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