Handbook on European non-discrimination law – Contents
Under EU law, only the Racial Equality Directive provides broad protection against discrimination in accessing the welfare system and other forms of social security. Encompassed within this is access to benefits in kind that are held ‘in common’ by the state, such as public healthcare, education and the social security system.
The precise ambit of the area of social protection, including social security and healthcare, is uncertain, since it is not explained within the Racial Equality Directive and has yet to be interpreted through the CJEU case law. The Social Security Directive (79/7) provides for equal treatment on the basis of sex, only in relation to ‘statutory social security schemes’ as opposed to ‘occupational social security’ schemes, which is dealt with in the Gender Equality Directive (recast). Article 3 of the Social Security Directive defines these as schemes which provide protection against sickness, invalidity, old age, accidents at work and occupational diseases and unemployment, in addition to “social assistance, in so far as it is intended to supplement or replace” the former schemes. The material scope of the Gender Equality Directive (recast) is defined in its Article 7. It covers the same risks as the Social Security Directive. According to Article 7 (1) (b) of the Gender Equality Directive, it also applies to occupational social security schemes which provide for other social benefits, in cash or in kind, and in particular survivors’ benefits and family allowances, if such benefits constitute a consideration paid by the employer to the worker by reason of the latter’s employment.
The distinction between statutory social security schemes and occupational schemes of social security is relevant, since certain exceptions are allowed under the Social Security Directive but not under the Gender Equality Directive (recast).
Example: The case of X.concerns the criteria for the granting of disability allowance which was part of the statutory social security system falling within the scope of the Social Security Directive (79/7/EEC). The claimant, a man, had received compensation for a work accident. The awarded amount was smaller than the amount that a woman of the same age and in a comparable situation would have been paid. The CJEU rejected the government’s justification that this difference in the level of compensation is justified because the life expectancies of men and women are different. The CJEU pointed to the fact that from the general statistical data, according to sex, it cannot be concluded that a female insured person always has a greater life expectancy than a male insured person of the same age, placed in a comparable situation.
The scope of ‘social advantages’ is well developed through the CJEU case law in the context of the law on free movement of persons and has been afforded an extremely broad definition.
Example: In the Cristini case, the complainant was an Italian national living with her children in France, whose late husband had been a ‘worker’ under EU law. The French railways offered concessionary travel passes for large families, but refused such a pass to Ms Cristini on the basis of her nationality. It was argued that ‘social advantages’ for the purposes of EU law were only those advantages that flowed from a contract of employment. The CJEU disagreed, finding that the term should include all advantages regardless of any contract of employment, including passes for reduced rail fares.
Example: In Vestische Arbeit Jobcenter Kreis Recklinghausen v. Jovanna García-Nieto and Others, a German employment centre refused to grant subsistence benefits to a Spanish national and his son for their first three months of residency in Germany. Under German legislation, foreign nationals do not have a right to obtain any social benefits during the first three months of residency in Germany. The CJEU found that this rule complied with EU legislation. The Citizenship Directive 2004/38/EC establishes a right for EU citizens to reside in other EU states for up to three months without any formalities apart from the obligation to hold a valid ID card or passport. Therefore, the directive allows the state to refuse social assistance to EU citizens during the first three months of their residency in that territory. They should have sufficient means of subsistence and personal medical cover during this period. The CJEU concluded that such refusal does not require assessment of the individual situation of the person concerned.
Example: In Elodie Giersch and Others v. État du Grand-Duché de Luxembourg, the claimants, children of frontier workers employed in Luxembourg, were not eligible for financial aid for higher education studies because they had not resided in Luxembourg. The CJEU noted that a Member State may reserve student aid for individuals who have a sufficiently close connection to that Member State. However, states assessing the actual degree of attachment that an individual has with the society or with the labour market of that Member State cannot rely solely on a residency condition. They should also take into account other elements. For example, the fact that one of the parents, who continues to support that student, is a frontier worker who has stable employment in that Member State and has already worked there for a significant period of time.
The CJEU defined ‘social advantages’ in the Even case as advantages:
“which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and the extension of which to workers who are nationals of other Member States therefore seems suitable to facilitate their mobility within the Community”.
The term applies to virtually all rights so long as they satisfy the Even definition: there is no distinction between a right that is granted absolutely or those rights granted on a discretionary basis. Further, the definition does not preclude those rights granted after the termination of the employment relationship being deemed a social advantage such as a right to a pension. Essentially, in the context of free movement, a social advantage relates to any advantage that is capable of assisting the migrant worker to integrate into the society of the host state. The courts have been quite liberal in finding an issue to be a social advantage, for example:
- the payment of an interest-free ‘childbirth loan’ – despite the rationale behind the loan being to stimulate childbirth, the CJEU considered this to be a social advantage as it was viewed as a vehicle to alleviate financial burdens on low-income families;
- the awarding of a grant under a cultural agreement to support national workers to study abroad;
- the right to hear a criminal prosecution against an individual in the lan- guage of their home state;
- payment of disability benefits which are intended to compensate for the extra expenses connected with their disability.
Under the ECHR, there is no right to social security, though it is clear from the jurisprudence of the ECtHR that some forms of social security such as benefit payments and pensions may fall within the ambit of Article 1 of Protocol No. 1 or of Article 8.
Example: In Andrle v. the Czech Republic, the applicant complained that, unlike for women, there was no lowering of the pensionable age for men who had raised children. The ECtHR found that this difference in treatment between men and women was objectively and reasonably justified to compensate for the inequalities women face (such as generally lower salaries and pensions) and the hardship generated by the expectation that they would work on a full-time basis and take care of the children and the household. Consequently, the timing and the extent of the measures taken to rectify the inequality in question had not been manifestly unreasonable and there had not been a violation of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.
Example: In Stummer v. Austria,328 the applicant had spent about twenty- eight years of his life in prison and had worked for lengthy periods during that time. The national pension scheme did not take work in prison into account when calculating his pension rights. The ECtHR held that the affiliation of working prisoners to the old-age pension system remained a question of choice of social and economic policy within a large margin of appreciation of the state and found no violation of Article 14 in conjunction with Article 1 of Protocol No. 1 to the Convention.
Example: In Fábián v. Hungary, the applicant, a pensioner employed by the civil service, complained about legislative amendment which upended the payment of old-age pensions to persons simultaneously employed in certain categories of the public sector, whereas pensioners working in the private sector remained eligible to receive the pension. The ECtHR held that the applicant had not demonstrated that, as a pensioner employed by the civil service, he was in a relevantly similar situation to pensioners employed in the private sector as regards his eligibility for the payment of old-age pensions. As such, there had been no violation of Article 14 in conjunction with Article 1 of Protocol No. 1. The ECtHR found that, following the amendment, it was the applicant’s post-retirement employment in the civil service that entailed the suspension of his pension payments. It was precisely the fact that, as a civil servant, he was in receipt of a salary from the state that was incompatible with the simultaneous disbursement of an old-age pension from the same source. As a matter of financial, social and employment policy, the impugned bar on simultaneous accumulation of pension and salary from the state budget had been introduced as part of legislative measures aimed at correcting financially unsustainable features in the pension system of the respondent state. That did not prevent the accumulation of pension and salary for persons employed in the private sector, whose salaries, in contrast to those of persons employed in the civil service, were funded not by the state but through private budgets outside the latter’s direct control.
Although there is no right to healthcare under the ECHR, the ECtHR has held that issues relating to healthcare, such as access to medical records, will fall under Article 8 (such as access to medical records) or Article 3, where a lack of access to health services is sufficiently serious to amount to inhuman or degrading treatment or interference with a person’s private life. Therefore, the complaints relating to discrimination in accessing healthcare may fall within the ambit of the Article 14.
Example: In Durisotto v. Italy, the applicant complained that his daughter had been refused authorisation for experimental treatment unlike some other patients. The domestic court established that the relevant clinical testing method was available during a certain period and the applicant’s daughter had not begun the treatment during this period. Consequently, the authorisation criterion as required by the relevant law was not satisfied in the applicant’s daughter case. The ECtHR held that although there was a difference in treatment of persons in relevantly similar situations, that difference was justified. The domestic court’s decision had been properly reasoned and was not arbitrary. Furthermore, it pursued the legitimate aim of protecting health and was proportionate to that aim. In addition, the therapeutic value of the experimental treatment had not been proved scientifically at the relevant time. Therefore, the ECtHR rejected this part of the application as manifestly ill-founded.
Access to other social benefits, particularly where they are intended to benefit the family unit, may also fall within the ambit of Article 8 of the ECHR. However, the margin of appreciation accorded to states in this area is relatively wide. The ECtHR has emphasised that states, due to their direct knowledge of their society and its needs, are in principle better placed to appreciate what is in the public interest on social or economic grounds. Therefore, the ECtHR generally respects the legislature’s policy choice unless it is “manifestly without reasonable foundation”.
Example: In Bah v. the United Kingdom, the applicant, a Sierra Leonean national, was granted indefinite leave to remain in the United Kingdom. The authorities allowed her minor son to join her on the condition that he would not have recourse to public funds. Shortly after his arrival, the applicant was obliged to leave her accommodation and find new housing. She applied to the local authority for assistance in finding accommodation; however, taking account of the immigration rules and her son’s immigration status, the priority to which her status as an unintentionally homeless person with a minor child would ordinarily have entitled her, was refused. The ECtHR found that the applicant’s differential treatment had resulted from her son’s conditional immigration status, not his national origin. It was the applicant’s choice to bring her son into the country in full awareness of the condition attached to his leave to enter. The legislation pursued the legitimate aim of allocating a scarce resource fairly, between different categories of claimants. The local authority had helped the applicant to find a private-sector tenancy and had offered her social housing within seventeen months. The difference in treatment in the applicant’s case was reasonably and objectively justified.
Example: In Gouri v. France, the applicant, an Algerian national living in Algeria, was refused an additional disability benefit in France on the grounds that she did not satisfy the requirement of residence in France. She complained that a refusal of a payment of the benefit to a person living abroad while it is awarded to a person living in France constitutes discriminatory treatment based on the place of residence. The ECtHR found that the applicant received a widow pension from the respondent state and only the additional disability benefit was suspended. Since the allowance pursued the goal of guaranteeing a minimum level of income to individuals residing in France, taking account of the cost of living in the country, she was not in a situation comparable to that of people living in France. Consequently, the applicant did not suffer discriminatory treatment.
Several Articles of the ESC relate to access to social security, welfare and health. These include: Article 11 (the right to protection of health), Article 12 (the right to social security), Article 13 (the right to social and medical assistance) and Article 14 (the right to benefit from social welfare services).
The ECSR has considered, for example, discrimination on grounds of territorial and/or socio-economic status between women who have relatively unimpeded access to lawful abortion facilities and those who do not have such access. In the same case, it also examined discrimination on the grounds of gender and/or health status between women seeking access to lawful termination of pregnancy procedures, and men and women seeking access to other lawful forms of medical procedures which are not provided on a similar restricted basis. The ECSR noted that, as a result of the lack of non-objecting medical practitioners and other health personnel in a number of health facilities in Italy, in some cases women are forced to move from one hospital to another within the country or to travel abroad, which amounted to discrimination.
The ECSR also held that as part of the positive obligations that arise by virtue of the right to the protection of health, States Parties must provide appropriate and timely care on a non-discriminatory basis, including services relating to sexual and reproductive health. As a result, a health care system which does not provide for the specific health needs of women will not be in conformity with Article 11, or with Article E of the Charter taken together with Article 11.
311. Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, OJ 1979 L 6, p. 24.
312. CJEU, C-318/13, X., 3 September 2014.
313. Ibid. paras. 37-40.
314. CJEU, Case 32/75, Anita Cristini v. Société nationale des chemins de fer français, 30 September 1975.
315. See also CJEU, C-75/11, European Commission v. Republic of Austria, 4 October 2012 concerning the scheme of reduced fares on public transport in Austria.
316. CJEU, C-299/14, Vestische Arbeit Jobcenter Kreis Recklinghausen v. Jovanna García-Nieto and Others, 25 February 2016.
317. CJEU, C-20/12, Elodie Giersch and Others v. État du Grand-Duché de Luxembourg, 20 June 2013.
318. CJEU, Case 207/78, Criminal proceedings against Gilbert Even and Office national des pensions pour travailleurs salariés (ONPTS), 31 May 1979, para. 22.
319. CJEU, C-35/97, Commission of the European Communities v. French Republic, 24 September 1998.
320. CJEU, Case 65/81, Francesco Reina and Letizia Reina v. Landeskreditbank Baden-Württemberg, 14 January 1982.
321. CJEU, Case 235/87, Annunziata Matteucci v. Communauté française of Belgium and Commissariat général aux relations internationales of the Communauté française of Belgium, 27 September 1988.
322. CJEU, Case 137/84, Criminal proceedings against Robert Heinrich Maria Mutsch, 11 May 1985.
323. CJEU, C-206/10, European Commission v. Federal Republic of Germany, 5 May 2011.
324. See for example ECtHR, Béláné Nagy v. Hungary [GC], No.53080/13, 13 December 2016, concerning the right to disability pension.
325. In particular, see the following cases: ECtHR, Andrejeva v. Latvia [GC], No. 55707/00, 18 February 2009; ECtHR, Gaygusuz v. Austria, No. 17371/90, 16 September 1996; and ECtHR, Koua Poirrez v. France, No. 40892/98, 30 September 2003, all discussed in Section 5.7.
326. ECtHR, Andrle v. the Czech Republic, No. 6268/08, 17 February 2011.
327. See Section 2.5 on special measures.
328. ECtHR, Stummer v. Austria [GC], No. 37452/02, 7 July 2011.
329. ECtHR, Fábián v. Hungary [GC], 78117/13, 5 September 2017.
330. See CoE, ECtHR (2015), Health-related issues in the case-law of the European Court of Human Rights, Thematic report.
331. ECtHR, K.H. and Others v. Slovakia, No. 32881/04, 28 April 2009.
333. ECtHR, Murray v. the Netherlands [GC], 10511/10, 26 April 2016; ECtHR, Sławomir Musiał v. Poland, No. 28300/06, 20 January 2009.
334. ECtHR, Durisotto v. Italy, 62804/13, 6 May 2014.
335. See for example, ECtHR, Stummer v. Austria [GC], No. 37452/02, 7 July 2012, para. 89.
336. ECtHR, Bah v. the United Kingdom, 56328/07, 27 September 2011.
337. ECtHR, Gouri v. France (dec.), No. 41069/11, 23 March 2017.
338. ECSR, International Planned Parenthood Federation – European Network (IPPF EN) v. Italy, Complaint No. 87/2012, decision on the merits of 10 September 2013, paras. 189-194.
339. ECSR, International Planned Parenthood Federation – European Network (IPPF EN) v. Italy, Complaint No. 87/2012, 10 September 2013, para. 66; ECSR, Confederazione Generale italiana de Lavoro (CGIL) v. Italy, Complaint No. 91/2013, Decision on the merits of 12 October 2015, paras. 162 and 190.
4. Selected areas of protection
4.2. Access to welfare and social security
4.4. Access to supply of goods and services, including housing
4.6. The ‘personal’ sphere: private and family life, adoption, home and marriage
4.7. Political participation: freedom of expression, assembly and association, and free elections