The role of international social security standards: an in-depth study through the case of Greece

Hele tekst

(1)THE ROLE OF INTERNATIONAL SOCIAL SECURITY STANDARDS. TheRoleofISSS.indb 1. 5-4-2013 15:02:30.

(2) A commercial edition of this dissertation will be published by Intersentia under ISBN 978-1-78068-165-8.. TheRoleofISSS.indb 2. 5-4-2013 15:02:30.

(3) The role of international social security standards An in-depth study through the case of Greece Proefschrift ter verkrijging van de graad van doctor aan Tilburg University op gezag van de rector magnificus, prof. dr. Ph. Eijlander, in het openbaar te verdedigen ten overstaan van een door het college voor promoties aangewezen commissie in de aula van de Universiteit op vrijdag 24 mei 2013 om 14.15 uur. door Maria Korda. geboren op 19 juni 1981 te Amarousio Attiki, Griekenland.. TheRoleofISSS.indb 3. 5-4-2013 15:02:30.

(4) Promotiecommissie Promotor prof. dr. F.J.L. Pennings Overige leden prof. dr. F.H.R. Hendrickx prof. dr. K. Boonstra prof. dr. G.S. Katrougalos prof. dr. P. Schoukens prof. dr. G.J. Vonk dr. F.M.C. Vlemminx. The research project was subsidised by Instituut Gak, Hilversum (Nl).. TheRoleofISSS.indb 4. 5-4-2013 15:02:30.

(5) To my lost brother, who reminds me every day that those with disabilities know better how to fight for life, for as long as they live … as well as To Mania and Assimakis, they both know very well why …. TheRoleofISSS.indb 5. 5-4-2013 15:02:30.

(6) Preamble ‘Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law …’ Article 22 ‘Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation (…), of the economic, social and cultural rights indispensable for his dignity and the free development of his personality’ Universal Declaration of Human Rights Adopted and proclaimed by General Assembly Resolution 217 A (III) of 10 December 1948. TheRoleofISSS.indb 6. 5-4-2013 15:02:30.

(7) Preface In most English dictionaries a ‘dissertation’ is, for academic purposes, defined as a ‘long formal piece of writing on a particular subject’. I would rather define my doctoral thesis somewhat differently, borrowing words from the Greek poem Ithaca by C.P. Cavafy (1911): ‘a long journey, full of adventure, full of discovery … through which you come into harbours seen for the first time, stop at Phoenician trading stations to buy fine things, visit many Egyptian cities to learn and learn again from those who know..., but keeping Ithaca always in your mind, because arriving there is what you are destined for: and wise as you will have become, you will have understood, by then, what these Ithacas mean...’. A few years ago, at Tilburg University, a research programme Europe and Social Security began. A team was set-up, consisting of four researchers coming from a variety of European countries – Belgium, Greece and the Netherlands – and having different academic backgrounds and research expertise, as well as employment and life experiences. We started working together on this programme, which encompassed social security from various aspects. From an early stage it became apparent to me that the international social security standards (ISSS) developed by the International Labour Organisation (ILO) and the Council of Europe (CoE) are not only relevant, but are in fact decisive for the further advancement of social cohesion and social stability. Their purpose is to act as protective measures and guarantee a decent level of social security for all. However, after completing the required literature review, I detected that over the years obstacles have emerged which have prevented them from achieving those things. Having from a young age an urge to understand disfuctionalities and try to place things in good order, I took up the subject matter of international social security standards’ blockage and I began by asking the question: ‘what are the obstacles to further promoting the international social security standards (ISSS) in a developed social security system?’. In this doctoral thesis – which is actually my own journey to Ithaca – I have aimed not only to identify and describe those obstacles, but also to analyse them, to show which of them have overall proved the greatest and why, to demonstrate their interrelation and ultimately, I hope, to trigger further discussion and make suggestions about how these obstacles may be overcome.. Intersentia. TheRoleofISSS.indb 7. vii. 5-4-2013 15:02:30.

(8) The Role of International Social Security Standards. Many people have been well-wishers during the process of bringing my research work to its culmination and have accompanied me through this journey, offering comfort and confidence. I would like to warmly thank them all for their support and contributions, whether direct or indirect. In this preface, however, I can mention only a few. First, I would like to offer my sincere gratitude to my supervisor, Prof. dr. F.J.L. Pennings, for giving me the opportunity to start this doctoral thesis and be appointed Ph.D. Researcher/Doctoral Candidate in an internationally recognised University – the Universiteit van Tilburg. He went through my entire research work with dedication and care. He made pertinent remarks, punctual corrections, and followed-up closely the different stages until its completion, constantly providing food for thought. Frans, thank you for showing me that there are two sides to every coin and for staying by my side in both the good and the bad times. The Department of Social Law and Social Policy in Tilburg, which hosted our Europe and Social Security programme, provided me with very good facilities for the conduct of high-level research. Sincere thanks to all my colleagues there for their interest in my work, many fruitful discussions and for creating such a pleasant academic atmosphere. Tineke Dijkhoff, Barbara Hofman and Saskia Montebovi though hold a very special place in my heart. Girls, I feel I have been truly blessed to be surrounded by you and to have worked with you. Apart from having excellent research skills, you possess a high degree of personal and professional integrity. It is this combination that makes me sure we are going to see great things from you. And, ‘natuurlijk’, I would like to acknowledge the valuable assistance of Kees Boos. Kees, dank je wel om me eraan te herinneren ‘que le mieux est l’ennemi du bien’ (Voltaire, ‘La Begueule, conte morale’ (1972)). Moreover, I am absolutely grateful to Instituut Gak, and its team, for financing our research programme in such a benevolent manner, and especially to Dr. Boudien Krol for her kindness, unwavering belief and enthusiasm for my research, which means a lot to me. I wish to express my deep appreciation to the highly-esteemed members of my Ph.D. committee for agreeing, in the first place, to assess the manuscript I handed in, for dedicating time and energy to read it, as well as for their positive and helpful feedback. Among them, I owe particular thanks and I am indebted to: my Greek mentor, Prof. dr. G.S. Katrougalos, for believing in my potentiality, for consistently supporting and encouraging me over all these years and helping me maximise my strengths and to limit my weaknesses. He had faith in me, even at moments when I had lost faith in myself, and he has always been there, eager to discuss and reflect with me on various new ideas, inspiring me and stimulating further research brainstorming. I hope that he will also continue to do so after the defence of my thesis; Prof. dr. P. Schoukens, not only for his crucial comments viii. TheRoleofISSS.indb 8. Intersentia. 5-4-2013 15:02:30.

(9) Preface. and suggestions, which improved and enriched the final outcome of my thesis, but also for triggering me to explore and touch upon aspects of my research that if they had been left uninvestigated, would have weakened the thesis. He was the one who introduced me – back in 2005, as a post-graduate student at the Katholieke Universiteit Leuven – to the mysteries of the worlds of law and politics. By supervising my Master’s thesis, obligatory in order to obtain my Master’s degree, he taught me how to question, reason, interpret and justify my research findings, as well as principles and beliefs; Prof. dr. G.J. Vonk, for being willing to get into legal, political and socio-economic discourse on the research problem addressed in my thesis, and to talk about several critical points in the presentation, as well as the analysis of my research factual findings. He was the first to make me understand that academic research and writing is not fun unless it is a rollercoaster ride; Prof. dr. F.H.R. Hendrickx whose role has been decisive, since the several discussions I had with him, moved away worries that occasionally clouded my mind, by reassuring me how beneficial a single country study can be, not only for the academic community, but also beyond. The help of both Prof. dr. ing. W.J.H. van Oorschot and Prof. dr. H. Oost was vital as well. They made me understand the importance of formulating a clear-cut and well-reasoned research methodology. Their guidance enabled me to mark out the interdisciplinary approach of my research. Thanks are also due to Prof. dr. N. Aliprantis. I am honoured to have met him and indebted to him for sharing with such alacrity his knowledge, and his academic, as well as practical, experience on human/social rights, feeding even more my desire to learn, comprehend and do the same for others. And finally, Prof. dr. A.C.J.M. Wilthagen who, at a crucial moment of writing, kindly approached me and advised me that sometimes it is better to make the blackboard white and start over. I will be forever thankful to my Professors at the Democritus University of Thrace – where I obtained my first university degree. Especially, Prof. dr. D. Venieris who kept on reminding me that calmness, self-esteem and clear mind are key ingredients both to good writing and the good life, as well as Prof. dr. M. Petmesidou, Prof. dr. X.I. Contiades and Dr. C. Dikeos, who made me love research and writing from an early stage of my academic career and taught me always to see the forest for the trees. Although a bit far from me, it felt you were near. I would also like to thank all the interviewees who agreed to have face-to-face discussions with me and took time to share their work experience and professional expertise. To do my interviews I visited Greece three times. I had informative, as well as really intriguing and thought-provoking meetings with people involved in the field of social security, and coming from different backgrounds: civil servants/ officials, trade union representatives, academics, lawyers, judges, independent Intersentia. TheRoleofISSS.indb 9. ix. 5-4-2013 15:02:30.

(10) The Role of International Social Security Standards. social security experts, etc. I ought though to note that the collaboration with Mrs A. Panourgia-Stamadianou, Mrs K. Beka and Mrs E. Bage-Michou was especially beneficial. I sincerely thank them for their advice and the great effort they went to help me gather important requested materials. From the contacts I had with the international and regional organisations, I want also to thank sincerely Mrs A. Gomez-Heredero for providing significant input and clear answers to various questions I posed, as well as for providing useful documentation. I truly recognise that without the direct contribution of all the afore-mentioned people, it would not have been possible to complete this research in a proper academic way. Over the last two years of writing my doctoral thesis, I have been working in parallel with the Marie Curie Actions (MCAs) Human Resources and Mobility (HRM) activity of the European Commission. I consider myself extremely fortunate to be part of this team, since I have been surrounded by persons with direct experience of the research subject-matter, and who, above all, have shared my desire to complete my academic work and have supported me to this end in every possible way. I owe exceptional thanks to my ex-Head of Unit, Dr. Didier Gambier, who offered me, when required, the luxury of time, and who stood by me every step of the way. My warmest thanks go also to my ex-Head of Sector, Dr. Karim Berkouk, my ex-Coordinators, Dr. Renata Bachorczyk-Nagy and Dr. Aleksander Kedra, Dr. Florent Bernard, Dr. Rodrigo Martin-Galan, Dr. Pablo Martinez-Lozano Sinues, my second ex-Head of Sector, Dr. Sergio Di Virgilio and Mrs Agata Stasiak, who helped me keep my thoughts raised high. A big thank you also goes to Brian Jones for his remarkable editorial work, as well as to Ilona Papagrigorakis for her meticulous and professional translation of the decisions of the Hellenic Council of State into English. My collaboration with them, in different stages of this research work, has been indeed wonderful. Also, kind thanks to Fiona McGrath and Rebecca Pound for their valuable editorial contribution, and last but not least to An Vermaercke, who has been extremely helpful and so great at communicating with me throughout the entire review and publication process of my doctoral thesis. Having friends is a real treasure and I have plenty: Miek P. (one of my beloved ‘paranimfen’) and her family, Ioanna P., Maria E. and Ingeborg W. (my guardian angels), Vincent V.D.B., Raf S., Evy P., Dalia W., Nadia S., Francesco L., Annita P., Elpida D., Ourania B., Nikolas P., Maria K., Dionysia L., Fabrice A., Isidoros K., Yves D., Nikolaos Ch., Dimitra A., Vasilios A., Martijn v.V., Suzan v.d.A., Sonja B., Bart V.K., Dennis B., Anamarija K., Anna J., Gulsum A., Matthew E., George Vou., George Vam., Revekka K., Georgia K., Giannis T., Dimitra T., Omar M., Rena M., Antonis K., Nikos N. and Silvia T. I want to warmly thank all of you with the following words: ‘a friend is one that knows you as you are, understands. x. TheRoleofISSS.indb 10. Intersentia. 5-4-2013 15:02:30.

(11) Preface. where you have been, accepts what you have become, and still, gently allows you to grow’ (William Shakespeare (1564-1616)). Words cannot express the feelings I have for my parents, Aristotelis and Magdalini. Their many sacrifices gave me my passport to the academic world. Their hard and decent work ethic has been an example to me, which I will always try to follow. Mania and Assimakis occupy a distinct place in my life and heart for helping me survive the writing process with my sanity intact and keeping alive the meaning of life. I would like to end this preface by mentioning my late brother, Vaggelis, whose life ran for the years he was alive as just a preface to life. I hope he would be proud of me. Maria Korda, Brussels, 17 March 2013. Intersentia. TheRoleofISSS.indb 11. xi. 5-4-2013 15:02:30.

(12) TheRoleofISSS.indb 12. 5-4-2013 15:02:30.

(13) Contents Preface�� vii List of Abbreviations�� xxi Chapter 1 Introduction�� 1 1.1 Historical insights and memorable highlights�� 1 1.1.1 The International Labour Organization (ILO) and social security�� 2 1.1.2 The Council of Europe (CoE) and social security�� 5 1.2 The development of international social security standards (ISSS): A review�� 8 1.2.1 The International Labour Organization standards in the field of social security�� 8 1.2.2 The Council of Europe (CoE) standards in the field of social security�� 11 1.2.3 The European Union (EU), social security and the international social security standards (ISSS)�� 13 1.3 The ‘State-of-the-Art’�� 17 1.4 The research problem�� 25 1.4.1 Defining the leading research question�� 25 1.4.2 Disciplinary embedding�� 32 1.4.3 Methodological functionality: The research methods and the selection of the research sub-questions�� 33 1.4.4 Research relevance�� 44 1.4.5 Research bottlenecks and solutions�� 48 1.5 The sequence and content of the chapters�� 51 Chapter 2 Pensions in the Light of International Standards: A Description and Critical Analysis of ILO Convention No. 128�� 53 2.1 The way towards ILO Convention No. 128 on Invalidity, Old-Age and Survivors’ Benefits (1967)�� 53. Intersentia. TheRoleofISSS.indb 13. xiii. 5-4-2013 15:02:30.

(14) The Role of International Social Security Standards. 2.2. 2.3. 2.4. 2.5. 2.6 2.7. 2.8 2.9. 2.10. 2.1.1 The ‘predecessors’: Adopting the first ILO social security standards on pensions�� 53 2.1.2 The ‘successor’: Need for new international social security standards on pensions�� 54 Personal scope of application�� 58 2.2.1 Persons for whom coverage is anticipated under C128�� 58 2.2.2 Determining the scope of persons to be protected through the use of flexibility clauses�� 62 Material scope of application�� 67 2.3.1 The risk of invalidity�� 67 2.3.2 The risk of old age�� 74 2.3.3 The risk of death�� 84 Qualifying period�� 96 2.4.1 Qualifying period for entitlement to invalidity benefit�� 96 2.4.2 Qualifying period for entitlement to old‑age benefit�� 105 2.4.3 Qualifying period for entitlement to survivors’ benefit�� 109 Nature and amount of cash benefits�� 111 2.5.1 The type of invalidity, old-age, and survivors’ benefits�� 111 2.5.2 Methods of calculations and replacement rates�� 112 2.5.3 Issues kept for Recommendation 131�� 119 Revision of the rate of cash benefits�� 121 Nature of benefits in kind�� 125 2.7.1 Rehabilitation and placement services provided to disabled persons�� 125 Duration of cash benefits�� 126 Common provisions�� 128 2.9.1 Maintenance of rights in course of acquisition�� 128 2.9.2 Suspension of benefits and relevant permissible reductions�� 129 2.9.3 The right of appeal�� 135 2.9.4 Financial and administrative aspects�� 139 Equality of treatment of non-national residents�� 145. Chapter 3 Greece and the International Social Security Standards: An Overview�� 147 3.1 Social protection in Greece: General description�� 147 3.1.1 The Social Insurance System (SIS)�� 149 3.1.2 The Health Care System (HCS)�� 174 3.1.3 The Social Assistance System (SAS)�� 176 3.2 Greece and the international legal instruments in the field of social security�� 181 3.2.1 Greece and the adopted ILO Conventions�� 181 3.2.2 Greece and the adopted CoE Instruments�� 183 xiv. TheRoleofISSS.indb 14. Intersentia. 5-4-2013 15:02:30.

(15) Contents. 3.3. 3.4. 3.5. 3.6 3.7. 3.2.3 Greek administration and division of competences in relation to the international social security instruments�� 183 Reasons for ratifying international social security instruments�� 187 3.3.1 The ratification of the ILO Social Security (Minimum Standards) Convention No. 102 (1952)�� 188 3.3.2 The ratification of the ILO Maternity Protection Convention (revised) No. 103 (1952)�� 189 3.3.3 The ratification of the CoE European Code of Social Security (1964)�� 191 3.3.4 The ratification of the CoE European Social Charter (1961)�� 195 3.3.5 The ratification of the CoE Protocol Amending the European Social Charter (1991)�� 196 3.3.6 The ratification of the CoE Additional Protocol to the European Social Charter (1988) and of the Additional Protocol to the European Social Charter providing for a System of Collective Complaints (1995)�� 197 Reasons for not ratifying international social security instruments�� 201 3.4.1 The non-ratification of the ILO Invalidity, Old-Age and Survivors’ Benefits Convention No. 128 (1967)�� 202 3.4.2 The non-ratification of the ILO Employment Injury Benefits Convention No. 121 (1964)�� 203 3.4.3 The non-ratification of the ILO Maternity Protection Convention (revised) No. 183 (2000)�� 203 3.4.4 The non-ratification of other adopted up-to-date ILO Conventions in the field of social security�� 204 3.4.5 The non-ratification of signed CoE instruments in the field of social security�� 205 3.4.6 Other opinions expressed on the non-ratification of international instruments in the field of social security�� 206 The role of ratified international social security instruments in Greek law and policy-making processes�� 208 3.5.1 One side of the coin�� 209 3.5.2 The other side of the coin�� 211 3.5.3 Some tentative remarks�� 216 The attitude of trade unions towards the international social security standards�� 219 The relationship between domestic law and international law�� 224 3.7.1 Hierarchy and incorporation of international legal rules and instruments in the domestic legal system�� 224 3.7.2 Greek ‘quasi-dualism’ and the incorporation of international legal instruments�� 226 3.7.3 National courts, Greek case law and the impact of the internationally developed social security standards�� 229. Intersentia. TheRoleofISSS.indb 15. xv. 5-4-2013 15:02:30.

(16) The Role of International Social Security Standards. Chapter 4 Description and Comparison of the Greek Social Security Legislation with the International Social Security Standards�� 237 PART I. PRELIMINARIES�� 237 4.1 Introduction�� 237 4.2 The social risks covered by the IKA-ETAM�� 238 4.2.1 Information on special pension arrangements�� 240 PART II. THE TRADITIONAL SOCIAL CONTINGENCIES�� 243 4.3 Medical care�� 4.3.1 Introduction�� 4.3.2 Personal and material scope of application�� 4.3.3 Qualifying conditions�� 4.3.4 Duration�� 4.3.5 National social security legislation and the international social security standards�� 4.4 Sickness benefit�� 4.4.1 Introduction�� 4.4.2 Personal and material scope of application�� 4.4.3 Qualifying conditions�� 4.4.4 Duration�� 4.4.5 Death grant�� 4.4.6 National social security legislation and the international social security standards�� 4.5 Unemployment benefit�� 4.5.1 Introduction�� 4.5.2 Personal and material scope of application�� 4.5.3 Qualifying conditions�� 4.5.4 Duration�� 4.5.5 Reasons for the ‘non-ratification’ of Part IV (Unemployment Benefit) of the European Code of Social Security�� 4.5.6 National social security legislation and the international social security standards�� 4.6 Family benefit�� 4.6.1 Introduction�� 4.6.2 Personal and material scope of application�� 4.6.3 Qualifying conditions�� 4.6.4 Duration��. xvi. TheRoleofISSS.indb 16. 243 243 244 246 247 248 256 256 256 257 258 260 260 263 263 265 267 269 271 275 280 280 284 285 286. Intersentia. 5-4-2013 15:02:31.

(17) Contents. 4.7. 4.8. 4.9. 4.10. 4.11. 4.6.5 Reasons for the ‘non-ratification’ of Part VII (Family Benefit) of the ILO Convention No. 102 and the European Code of Social Security�� 4.6.6 National social security legislation and the international social security standards�� Employment injury benefit�� 4.7.1 Introduction�� 4.7.2 Personal and material scope of application�� 4.7.3 Qualifying conditions�� 4.7.4 Benefits and duration�� 4.7.5 Rehabilitation�� 4.7.6 National social security legislation and the international social security standards�� Maternity benefit�� 4.8.1 Introduction�� 4.8.2 Personal and material scope of application�� 4.8.3 Qualifying conditions�� 4.8.4 Duration�� 4.8.5 Recent developments�� 4.8.6 National social security legislation and the international social security standards�� Old-age benefit�� 4.9.1 Introduction�� 4.9.2 Material scope of application and qualifying conditions�� 4.9.3 Personal scope of application�� 4.9.4 Duration of the benefit�� 4.9.5 National social security legislation and the international social security standards�� Invalidity benefit�� 4.10.1 Introduction�� 4.10.2 Material scope of application�� 4.10.3 Qualifying conditions�� 4.10.4 Personal scope of application�� 4.10.5 Duration of the benefit�� 4.10.6 Rehabilitation services (re-training) and preferential employment of persons with disabilities�� 4.10.7 National social security legislation and the international social security standards�� Survivors benefit�� 4.11.1 Introduction�� 4.11.2 Material scope of application and qualifying conditions��. Intersentia. TheRoleofISSS.indb 17. 286 288 292 292 294 295 298 302 303 322 322 322 323 324 325 325 328 328 329 340 340 341 342 342 342 344 346 346 348 348 351 351 351. xvii. 5-4-2013 15:02:31.

(18) The Role of International Social Security Standards. 4.11.3 Personal scope of application�� 355 4.11.4 Duration of the benefit�� 355 4.11.5 National social security legislation and the international social security standards�� 356 PART III. BENEFIT AMOUNTS, STANDARDS TO BE COMPLIED WITH BY PERIODICAL PAYMENTS AND BENEFIT REVISION�� 357 4.12 Benefit amounts under national social security legislation�� 4.12.1 Sickness benefit�� 4.12.2 Unemployment benefit�� 4.12.3 Family benefit�� 4.12.4 Maternity�� 4.12.5 Employment injury�� 4.12.6 Old age�� 4.12.7 Invalidity�� 4.12.8 Survivorship�� 4.13 Benefit amounts according to the international social security standards�� 4.13.1 Basic information�� 4.13.2 Sickness benefit�� 4.13.3 Unemployment benefit�� 4.13.4 Maternity�� 4.13.5 Employment injury�� 4.13.6 Old age�� 4.13.7 Invalidity�� 4.13.8 Survivorship�� 4.13.9 Family benefit�� 4.14 National social security legislation and international social security standards to be complied with by periodical payments�� 4.14.1 Problems with assessing the compliance with the international social security standards�� 4.14.2 Recent comments and requests made by the CEACR and the Committee of Ministers, and the responses of the competent national authorities�� 4.14.3 Indicative calculations�� 4.15 Benefit revision�� 4.15.1 Re-adjustment of benefits under the national social security legislation�� 4.15.2 Re-adjustment of benefits according to the international social security standards�� 4.15.3 National social security legislation and the international social security standards�� xviii. TheRoleofISSS.indb 18. 357 357 359 362 363 364 366 375 377 377 377 378 379 380 381 383 384 385 386 390 390. 395 399 405 405 408 409. Intersentia. 5-4-2013 15:02:31.

(19) Contents. PART IV. COMMON PROVISIONS�� 412 4.16 Benefit suspension�� 4.16.1 Old-age benefit�� 4.16.2 Invalidity benefit�� 4.16.3 Survivors’ benefit�� 4.16.4 Unemployment benefit�� 4.16.5 Family benefit�� 4.16.6 Sickness benefit – Medical care – Maternity benefit�� 4.17 The right of appeal�� 4.17.1 The right of appeal under national social security legislation�� 4.17.2 The right of appeal according to the international social security standards�� 4.17.3 National social security legislation and the international social security standards�� 4.18 Financing and administration�� 4.18.1 Financial aspects under national social security legislation�� 4.18.2 Administrative aspects under national social security legislation�� 4.18.3 Financial and administrative aspects according to the international social security standards�� 4.18.4 National social security legislation and the international social security standards��. 412 412 416 419 423 425 425 426 426 428 431 432 432 434 437 439. Chapter 5 Presentation and Analysis of the Research ‘Factual Findings’�� 447 5.1 Introduction�� 5.2 Answering the 1st Research Sub‑‌Question�� 5.2.1 The reasons behind ratification�� 5.2.2 Results stemming from the legal comparison�� 5.2.3 Reflecting on the reasons behind ratification�� 5.2.4 Emerging obstacles to further promoting the ISSS�� 5.3 Answering the 2nd Research Sub-Question�� 5.3.1 The nationally stated obstacles to non-ratification�� 5.3.2 Results stemming from the legal comparison�� 5.3.3 Results stemming from the elaboration of further available data obtained�� 5.3.4 The issue of ratification and other occurring problems�� 5.3.5 Reflecting on the obstacles found to ratification�� 5.4 Answering the 3rd Research Sub-Question�� 5.4.1 Results stemming from the legal comparison and the elaboration of the further research data obtained�� Intersentia. TheRoleofISSS.indb 19. 447 447 448 455 462 466 467 467 468 478 483 488 497 498 xix. 5-4-2013 15:02:31.

(20) The Role of International Social Security Standards. 5.4.2 Additional obstacles to the promotion of the ISSS�� 515 Chapter 6 Conclusions, Discussion and Recommendations�� 531 PART I. THE RESEACH PROBLEM: OUTCOME AND DISPOSITION�� 531 6.1 Introduction�� 531 6.2 Answering the leading Research Question (Research Problem)�� 533 6.3 Placing the ‘New Frame of Reference’ into a broader systematic context�� 541 6.3.1 Ideological and pragmatic (practical) obstacles: Causality and supremacy�� 542 PART II. PROBLEM-SOLVING: DISCUSSION AND RECOMMENDATIONS�� 548 6.4 Keeping abreast of recent developments and affairs: A ‘commentary’�� 6.5 Making recommendations: An attempt to ‘bridge’ the ideological and pragmatic distance�� 6.5.1 Reconciliation between ‘social commitments’ and ‘economic freedoms’ in the international arena: A need for action�� 6.5.2 A shift in the ‘paradigm’: Changing the focus of national strategies�� 6.5.3 Further intervention and mobilisation from the international side�� 6.5.4 Efforts to overcome national practical difficulties��. 548 554 556 570 578 589. PART III. CLOSURE�� 595 6.6 Added value�� 595 6.7 Epilogue�� 597 Summary�� Bibliography�� Appendices�� Appendix A: List of interviewees (in alphabetical order)�� Appendix B: Decisions of the Hellenic Council of State (in chronological order)�� Annex��. xx. TheRoleofISSS.indb 20. 601 647 713 714 716 739. Intersentia. 5-4-2013 15:02:31.

(21) List of Abbreviations ADEDY AKAGE AMKA AUOs BG C C17 C35 C36 C37 C38 C39 C40 C42 C70 C71 C102 C103 C118 C121 C128. Intersentia. TheRoleofISSS.indb 21. Greek Civil Servants’ Trade Unions Insurance Fund for Solidarity between Generations National Social Insurance Number Arduous and Unhealthy Occupations Bank of Greece Convention of the International Labour Organisation ILO Convention No. 17 on Workmen’s Compensation (Accidents) (1925) ILO Convention No. 35 on Old-Age Insurance (Industry, etc.) (1933) ILO Convention No. 36 on Old-Age Insurance (Agriculture) (1933) ILO Convention No. 37 on Invalidity Insurance (Industry, etc.) (1933) ILO Convention No. 38 on Invalidity Insurance (Agriculture) (1933) ILO Convention No. 39 on Survivors’ Insurance (Industry, etc.) (1933) ILO Convention No. 40 on Survivors’ Insurance (Agriculture) (1933) ILO Convention No. 42 on Workmen’s Compensation (Occupational Diseases) (1934) ILO Convention No. 70 on Social Security (Seafarers) (1946) ILO Convention No. 71 on Seafarers’ Pensions (1946) ILO Convention No. 102 on Social Security (Minimum Standards) (1952) ILO Convention No. 103 on Maternity Protection (Revised) (1952) ILO Convention No. 118 on Equality of Treatment (Social Security) (1962) ILO Convention No. 121 on Employment Injury Benefits (1964) ILO Convention No. 128 on Invalidity, Old-Age and Survivors’ Benefits (1967). xxi. 5-4-2013 15:02:31.

(22) The Role of International Social Security Standards. C130 C157 C168 C183 CCACR CEACR. CoE Committee Committee of Ministers CPI CS-SS DEI DIKKI DL DLOEM EC ECB ECJ ECoHR ECSS ECSR ECHR EDOEAP EE EEA EEC EFTA EKAS EKEP EKLA ELEPEE. xxii. TheRoleofISSS.indb 22. ILO Convention No. 130 on Medical Care and Sickness Benefit (1969) ILO Convention No. 157 on Maintenance of Social Security Rights (1982) ILO Convention No. 168 on Employment Promotion and Protection against Unemployment (1988) ILO Convention No. 183 on Maternity Protection (2000) Conference Committee on the Application of Conventions and Recommendations Committee of Experts on the Application of Conventions and Recommendations of the International Labour Organisation Council of Europe (Greek) Committee of Experts Committee of Ministers of the Council of Europe Consumer Price Index Committee of Experts on Social Security of the Council of Europe Public Power Corporation Democratic Social Movement (Political Party) Democratic Left (Political Party) Distributive Fund for Employees Family Allowances European Community European Central Bank European Court of Justice European Court of Human Rights of the Council of Europe European Code of Social Security of the Council of Europe European Committee of Social Rights of the Council of Europe European Convention on Human Rights of the Council of Europe Inclusive Journalistic Organization for Auxiliary Care Insurance Workers’ Foundation European Economic Area European Economic Community European Free Trade Association Social Solidarity Allowance for Pensioners National Centre for Vocational Orientation Special Common Account for Unemployment Special Account for the Enhancement of the Professional Training Program Intersentia. 5-4-2013 15:02:31.

(23) List of Abbreviations. ELTA EOKF EOPYY EP ERT (S.A.) ESC ESPA ESYKF ETAA E.T.A.O. ETAP-MME ETAT ETUC ETVA EU G8 G20 GAD GB GDP GENOP-DEI. Hellenic Post Staff National Social Care Organisation National Health Services Organisation European Parliament Hellenic Broadcasting Corporation European Social Charter of the Council of Europe National System of Protection against Unemployment National Council for Social Care Insurance Fund for Independent Professionals Occupational Insurance Fund of the Economists Mass Media Workers’ Insurance Fund United Insurance Fund of Bank Employees European Trade Union Confederation Hellenic Industrial Development Bank European Union Group of Eight Group of Twenty Government Actuary’s Department of the United Kingdom Governing Body of the International Labour Organisation Gross Domestic Product Greek Federation of Employees of the National Electric Power Corporation Great War First World War GRULAC Group of Latin America and Caribbean Countries GSEE Greek General Confederation of Labour HCS Health Care System ICESCR International Covenant on Economic, Social and Cultural Rights IKA Social Insurance Institute IKA-ETAM Social Insurance Institute for the Private Sector IKA-ETAM-ETEAM Special Supplementary Insurance Section of Legal Entities of Public Law IKA-ETEAM Supplementary Insurance United Fund IKA-TEAM Supplementary Insurance Fund for Employees ILC International Labour Conference of the International Labour Organisation ILO Bureau International Labour Office of the International Labour Organisation ILO International Labour Organisation ILOLEX Acronym of the International Labour Organisation database on international labour standards IMF International Monetary Fund ISAP Athens Piraeus Electric Railways. Intersentia. TheRoleofISSS.indb 23. xxiii. 5-4-2013 15:02:31.

(24) The Role of International Social Security Standards. ISSA ISSS ITUC KAPI KKE LAEK LPEAE MDGs MPLs MPs NAA NAT NBG NGOs NHS ND NORMLEX OAED OAEE OECD OEK OGA OMC OPA-DEI OSE OTE S.A. PASOK Protocol to the ECSS PR R R43 R67 R69 R121 R131 R191. xxiv. TheRoleofISSS.indb 24. International Social Security Association International Social Security Standards International Trade Union Confederation Centres for the Open Protection for the Elderly Communist Party of Greece (Political Party) Account for Employment and Professional Training Account for the Protection of Employees from Unreliable Employers Millennium Development Goals Minimum Pensions’ Limits Members of the Parliament National Actuarial Authority Seamen’s Retirement Fund National Bank of Greece Non-Governmental Organisations National Health System New Democracy (Political Party) Information System on International Labour Standards Manpower Employment Organization Liberal Professionals’ Insurance Organisation Organisation for Economic Co-operation and Development Workers’ Housing Organization/Organization for Housing Benefits Agricultural Insurance Organization Open Method of Coordination Insurance Organization of the Public Power Corporation Hellenic Railways Organisation Hellenic Telecommunications Organisation Pan-Hellenic Socialist Movement (Political Party) Protocol to the European Code of Social Security of the Council of Europe Political Spring (Political Party) Recommendation of the International Labour Organisation ILO Recommendation No. 43 on Invalidity, Old-Age and Survivors’ Insurance (1933) ILO Recommendation No. 67 on Income Security (1944) ILO Recommendation No. 69 on Medical Care (1944) ILO Recommendation No. 121 on Employment Injury Benefits (1964) ILO Recommendation on Invalidity, Old-Age and Survivors’ Benefits (1967) ILO Recommendation No. 191 on Maternity Protection (2000) Intersentia. 5-4-2013 15:02:31.

(25) List of Abbreviations. R194 Revised ECSS Revised ESC SAS SB SE SIS SRM StE SYN SYRIZA TADKY TAE TAISYT Tameio Nomikon TANPY T.E.A.-E.E.K.E. T.E.A.-E.L.T.A. T.E.A.-E.T.D.E.A. T.E.A. - Inter-American T.E.A.-J&J/JC T.E.A.-YP. OIK. TEAAPAE TEAEIGE T.E.A.GE TEAIT TEAPEP TEPAET TAPEAPI TAPEM TAPIT TAPOTE Intersentia. TheRoleofISSS.indb 25. ILO Recommendation No. 194 on the List of Occupational Diseases (2002) Revised European Code of Social Security of the Council of Europe (1990) Revised European Social Charter of the Council of Europe (1996) Social Assistance System Standard Beneficiary Southern European Social Insurance System Standards Review Mechanism Greek Council of State Coalition of the Left and Progress (Political Party) Coalition of the Radical Left (Political Party) Municipal and Community Staff Insurance Fund Storekeepers’ Insurance Fund Owners and Editors of the Press as well as Press Employees Legal Professionals’ Fund Maritime Agents’ and Employees’ Insurance Fund Occupational Insurance Fund of Greek Air Traffic Controllers Occupational Insurance Fund of the Hellenic Post Staff Occupational Insurance Fund of the Greek Department of the International Police Officers Union Occupational Insurance Fund of the Inter-American Staff Occupational Insurance Fund of the Johnson and Johnson Hellas S.A. and the Janssen-Cilag Pharmaceutical S.A. Staff Occupational Insurance Fund of the Workers in the Ministry of Economy and Finance Supplementary Insurance Fund of the Insurers and Insurance Enterprises Staff Supplementary Insurance Fund of Pedagogues in Private General Education Occupational Insurance Fund of the Geo-Technical’s Supplementary Insurance Fund for the Private Sector Supplementary Insurance Fund of the Oil-Products Enterprises Staff Provident Fund of the Cements’ Companies Staff Free-lancers of the Hippodrome Insurance Fund Metal Employees Fund Fund of Providence for Private Sector Employees Hellenic Telecommunications Organization Staff xxv. 5-4-2013 15:02:31.

(26) The Role of International Social Security Standards. TAPEL TAPPEL TATTA TAYTEKO TAXY TEAA TEADY TEAIE TEAPASA TEAP-EYDAP TEAPOKA TEAPOZO TEAYFE TEAYEK TEBE TEC TEPEAPI TPDY TPPOETH TPPOLTH TPPOYTH TSA TSAY TSEYP TSMEDE TSPEATH UDHR UK UN UNESCO US WB WHO WWII. xxvi. TheRoleofISSS.indb 26. Provident Fund of the Harbour Employees Staff Fertilizers Companies Fund Press-Technicians of Athens Insurance Fund of Bank Employees and Public Utilities Services Hotel-Employees Insurance Institute Fund Bakers’ Supplementary Insurance Fund Supplementary Insurance Fund of the Public Sector Supplementary Insurance Fund of Electricians Fund for Supplementary Insurance and Providence for Employed in Public Safety Forces Athens Water Supply and Sewerage Company Staff Supplementary Insurance Fund of the Social Insurance Organizations Staff Supplementary Insurance Fund of the Wine-Beer-Alcohol Incorporated Company Staff Pharmaceutical Works Staff Supplementary Fund Commercial Stores Staff Supplementary Fund Fund for Craftsmen and Small Entrepreneurs Treaty of the European Communities Provident and Supplementary Insurance Fund of Hippodrome (Race) Staff Providence Fund for the Public Sector Employees Provident Fund of the National Theatre Organisation Staff Harbour Organization of Thessaloniki Fund Water Supply Organization of Thessaloniki Fund Motorists’ Fund Health Professionals’ Pension Fund News-Vendors and Agencies Employees of Athens and Thessaloniki Civil, Electronic and Mechanical Engineers’ Pension Fund Athens and Thessaloniki Newspapers Staff Universal Declaration of Human Rights United Kingdom United Nations United Nations Educational, Scientific and Cultural Organisation United States World Bank World Health Organisation Second World War. Intersentia. 5-4-2013 15:02:31.

(27) Chapter 1 Introduction Wonder is the beginning of all science … – Aristotle Wisdom begins in wonder … – Socrates Always desire to learn something useful … – Sophocles. 1.1 Historical insights and memorable highlights Traditionally, states have been sensitive about transferring parts of their sovereignty1 both at international and European levels. Put differently, states tend to be rather cautious about embracing new regulatory policies, particularly in areas that are perceived as being at the heart of their national authority.2 Social security has been, and remains, one of these areas. In fact, social security is regarded as being one of the matters best dealt with domestically.3 Over time, though, and as a result of several circumstances, developments and changes in economics, politics, society and culture that took place globally, and particularly after the two World Wars (the Great War (WWI) and the Second World War (WWII)), international law and later on European (regional) law gradually increasingly impacted on domestic social security affairs. In particular, with respect to international law, this also correlates, in a sense, with the development and adoption of common international social security standards (ISSS) (see Section 1.2, below).. 1. 2. 3. The term sovereignty actually refers to the (legal) power or capacity that a country has to govern itself; put another way, to the competence (right or authority), quality and condition of being (legally) qualified to enact and enforce law (i.e. an act), as well as the ability to make proper arrangements in respect of the different domestic policy areas. They have also been particularly interested in the preservation and safeguarding both of their territorial integrity and statehood. See also Chatzistavrou, F. (2011), pp. 356, 358–359; Korda, M. and Schoukens, P. (2006), pp. 12–15. See also Pieters, D. (1993), p. 121.. Intersentia. TheRoleofISSS.indb 1. 1. 5-4-2013 15:02:31.

(28) The Role of International Social Security Standards. 1.1.1 The International Labour Organization (ILO) and social security In the aftermath of WWI,4 the Treaty of Versailles (Treaty of Peace between the Allied and Associated Powers and Germany) was signed (1919). ‘When the Peace Conference met in 1919, one of its first acts was to appoint a Commission on “international labour legislation” to draw up proposals for the inclusion in the Treaty.’5 ‘The text it drafted became Part XIII of the Treaty of Versailles, thus creating the International Labour Organization (ILO)6 as a permanent section of the League of Nations (…).’7 It should be noted that the principal characteristic of this international organization has been tripartism.8 It is composed of three main bodies9 – the International Labour Conference (ILC), the Governing Body (GB) and the International Labour Office (ILO Bureau). The first two bodies consist not only of government representatives, but also of employers’ and workers’ representatives, while the third consists solely of the Member States’ civil servants (in other words, officials).10 Furthermore, with a view to fostering government, worker and employer cooperation, and in order to achieve social and economic progress simultaneously, the ILO began to promote social dialogue as a means of constructing ‘consensus-building and democratic involvement of those with vital stakes in the world of work.’11 The Preamble to the ILO Constitution (1919), by emphasizing first that ‘universal and lasting peace can only be established if it is based upon social justice’,12 referred to the following goals in the field of social security, which, among the other goals set out in the Preamble, would contribute to the prevention of the existence of labour conditions that would involve ‘such injustice, hardship and deprivation to large numbers of people as to produce unrest so great that the. It is interesting to note that during WWI trade unions in certain countries of Western Europe, ‘notably England, France and Germany, as well as in the United States (US), adopted resolutions calling for the creation of an international congress of worker and employer representatives to oversee the creation of common standards on working time, occupational health and safety and child labour’’ see Johnson, A. (2005), p. 147. Joyce, J.A., (1980), p. 28. ‘The Russian revolution of 1917, which took place shortly before the creation of the ILO, confirmed to the founders of this organization in their view that measures had to be taken in order to raise the standards of living in the world’; see Pennings, F. and Schulte, B. (2006a), p. 1. Joyce, J.A., (1980), p. 28. See also Rodgers, G., Lee, E., Swepston, L. and Van Daele, J. (2009), p. 1. See, for analysis, Johnson, A. (2005), p. 148. See ILO (2005), p. 11; Czucz, O. (1999), pp. 49–50; Johnson, A. (2005), p. 148; Wisskirchen, A. (2005), p. 254–258; Pennings, F. and Schulte, B. (2006a), p. 2. See, for analysis, ILO (2007a), pp. 6–7. See also Rodgers, G., Lee, E., Swepston, L. and Van Daele, J. (2009), p. 1.. 2. Intersentia. 4. 5 6. 9. 7 8. 10. 11. 12. TheRoleofISSS.indb 2. 5-4-2013 15:02:32.

(29) Chapter 1. Introduction. peace and harmony of the world are imperilled; and an improvement of those conditions is urgently required’:13 the prevention of unemployment, the protection of the worker against sickness, disease and injury arising out of his employment, provision for old age and injury, as well as protection of the interests of workers when employed in countries other than their own.14. The Declaration of Philadelphia (1944) placed much more emphasis on the human rights element of social policy in general, as well as on the importance of proper international economic planning. It is interesting to note that the plurality of the requests of the Declaration were the product of a partnership of American and Western European Labour unions and the ILO Bureau. The Declaration was annexed to the ILO Constitution.15 The ILO ‘was the only element of the League of Nations to survive the Second World War’,16 and it became a specialized agency of the United Nations (UN) in 1946 with the purpose of international standard-setting activity,17 also in the field of social security. Other international organizations later became equally involved – apart from raising standards of living worldwide – in advancing this standard-setting activity,18 however, it could be said that the ILO has led the way in this respect.19 Through the Universal Declaration of Human Rights (UDHR) (1948), and bearing in mind the turmoil and the horrors brought by the world wars, particularly the second (WWII), the recognition of social security as a human right also came to the fore, and its value was somewhat strengthened. Its incorporation into the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 196620 was also a step forward. All the same, the concretization of the right to social security, as well as of its legal substance, is mainly attributed to the international social security instruments adopted by the ILO and the relevant standards set therein21 (see Section 1.2, below). 13. 16. 17. 14. 15. 18. 21. 19. 20. The text of the ILO Constitution is available on the website of the ILO – ILOLEX Advanced Query Form. See also Korda, M. (2009), p. 508. See also Dufty, N., F. (1972), pp. 481–482; Dijkhoff (2011), p. 3. See Johnson, A. (2005), p. 147. The commonly known standard-setting activity of international organizations by no means corresponds simply to a compilation of already adopted legislation, but to a global promotion of measures with respect to social (security) protection; see Otting, A. (1992), pp. 129–134. Actually, it could be said that this standard-setting activity, as a whole, represents the outline of social and labour policy drawn up at a global level. See Korda, M. (2009), pp. 503–505. It came into force on the 3rd January 1976. See also Schoukens, P. (2007), p. 79; Dijkhoff (2011), pp. 3–4.. Intersentia. TheRoleofISSS.indb 3. 3. 5-4-2013 15:02:32.

(30) The Role of International Social Security Standards. ‘Because of the resistance of American labour representatives to binding legislation at the time of the ILO’s creation, the ILO’s legislative capacity is a compromise between binding and advisory opinions.’22 Moreover, the standard-setting activity of the ILO is based on two forms of international legal instruments: Conventions and Recommendations. Conventions are legally binding international treaties, however, national legal obligations apply only from the moment a Member State ratifies them. Recommendations are non-binding legal instruments that set out guidelines directing national policy and action.23 As far as the supervision of the ILO Conventions is concerned, in order to ensure that the national legal obligations in respect of these instruments – once ratified – are being kept, ILO has employed a system for monitoring their implementation. A specific reporting procedure has been established in respect of the ratified Conventions, according to which Member States have to submit reports periodically on the relevant instruments, proving their compliance with the standards set and referring to any further action taken.24 The reports are examined by the Committee of Experts on the Application of Conventions and Recommendations (CEACR),25 which is made up of 20 independent experts. The CEACR ‘is used to assign to each of its members the responsibility for a group of conventions. As a result one expert is responsible for social security conventions.’26 No power has been given to the CEACR allowing it to impose strong legal sanctions in cases of improper implementation on the part of the states. In principle, the tactic pursued by the ILO is a diplomatic one. Put another way, the ILO tries to persuade governments, through continuous dialogue, to bring their national social security legislation into line with the accepted instruments. The conclusions drawn by the CEACR are brought before the Conference Committee on the Application of Conventions and Recommendations (CCACR).27 Then the Conference discusses selected cases of discrepancies and its report is presented to the ILO ILC, which is the principal body for drawing conclusions and making decisions.28. 24. 25. 22 23. 26 27. 28. 4. TheRoleofISSS.indb 4. See Johnson, A. (2005), p. 148. See Korda, M. (2009), p. 506. See Korda, M. (2009), p. 507. With respect to the establishment and terms of reference, see, for analysis, Wisskirchen, A. (2005), pp. 271–277. See, for analysis, Pennings, F. and Schulte, B. (2006a), p. 19. With respect to the establishment and terms of reference, see, for analysis, Wisskirchen, A. (2005), pp. 278–282. For a more detailed description on the supervision of the ILO conventions, see Korda, M. and Pennings, F. (2008), pp. 136–137; Pennings, F. (2007), p. 8. Pennings, F. and Schulte, B. (2006a), pp. 15–20; Wisskirchen, A. (2005), pp. 269–283. Intersentia. 5-4-2013 15:02:32.

(31) Chapter 1. Introduction. Additionally, for Member States that have not ratified a particular Convention, at appropriate time intervals a report is requested on the position of national law and practice with regard to the matters dealt with in the Convention, in order for the country to show the extent to which effect has been given, or is intended to be given, to any of its provisions, as well as to state the difficulties which prevent or delay its ratification. This way, the ILO indirectly puts pressure on its Member States to justify the reasons why the ratification of certain Conventions is hindered, while at the same time, making Member States aware that they have not ratified certain Conventions. So, this way, the possibility of re-opening discussions remains.29 Last, the ILO has also launched programmes for technical assistance30 in an effort to provide expertise, assistance, as well as guidance, to governments, workers and employers on a worldwide scale. This has been mainly attributed to the fact that there was an enormous growth of the ILO’s membership, particularly in the decades following WWII, which unavoidable brought lots of changes within the context that this organization has been operating.31 Currently the ILO counts 185 countries.. 1.1.2 The Council of Europe (CoE) and social security On 19th September 1946, at the University of Zurich, Sir Winston Churchill gave a speech (also known as the Zurich speech) on European Unity that was greatly received. Apart from expressing his views concerning the European future, he also expressed his wish for a kind of United States Europe. His speech could be regarded the beginning of a movement in favour of a united post-war Europe. The creation of a Council of Europe (CoE) was also one of the main elements of his speech.32 Later on, and based on the adoption of the UDHR in 1948, ‘governments expressed their determination never again to suffer violations of fundamental freedoms (…)’.33. 31. 32. 29. 30. 33. See Korda, M. (2009), pp. 507–508. See also Korda, M. and Pennings, F. (2008), p. 132. See also ILO (2007a), p. 2. Actually, he had already spoken of a Council of Europe in 1943, in a radio broadcast; see also Centre Virtuel de la Connaissance sur l’Europe (CVCE) (2011a), p. 1. See Benelhocine, C. (2012), p.7.. Intersentia. TheRoleofISSS.indb 5. 5. 5-4-2013 15:02:32.

No results found