European Social Security Law - Social Security System for Migrant Workers and Estonian Situation
| Author | Gaabriel Tavits |
| Pages | 110-118 |
Gaabriel Tavits
European Social Security Law - Social Security System for Migrant Workers and Estonian Situation
Introduction
In the process of becoming integrated with Europe, more precisely in becoming a member of the European Union, Estonia must take into account not only those European legal acts which must be harmonized with local law, but also rules of co-ordination. Rules regarding the co-ordination of the social security rights of migrant workers are an important element in the EU co-ordination rules. Whereas the dominant tendency in European labour law is towards harmonisation, the principle of co-ordination is predominant in social security law [8, p. 280]. Although the principle of co-ordination does not imply immediate changes in domestic law, it is all the same necessary to understand the content of the rules for the co-ordination of social security and their significance for the domestic legal system.
In this article, the foundations of European Community social security law will be analysed under the Maastricht Treaty, as will the changes which well result should the Amsterdam Treaty come into effect. Since the existence of social security rights is a prerequisite for the free movement of labour, in this article foremost attention will be paid to the branch of European Community social policy related to the safeguarding of migrant workers' social security rights and the co-ordination of different social security plans. In addition to the above, the potential objective problems which may arise in Estonia from the application of the European Union's social security principles will also be examined.
When speaking of the European Union in general, one must distinguish between three pillars: (1) European Community law as the law of three communities: the European Economic Community, the European Coal and Steel Community and EURATOM (the first pillar), (2) European Union law, which is connected with co-operation in foreign and security policy (the second pillar) and also in the fields of justice and internal affairs (the third pillar) [14, p. 140]. The foundations of European Union social policy have also been expressed in the Treaty Establishing the European Community (EC), as a result of which EC social policy and EC social security law will also be mentioned below.
Social security law regarding the free movement of labour is one component of EC social policy. As an overall term, social policy includes the collection of European Community legal measures for the improvement of labour and living conditions; social policy consists of both political and legal components and also includes both the labour law and social security systems. EC social policy includes both specific social security law regarding the free movement of labour, in accordance with Article 51 of the Treaty of Europe, and the foundations of social policy in general, in accordance with Articles 117-127 and 129 of the EC Treaty.
In accordance with its initial concept, the EC was to be not a social community, but first and foremost an economic community. In the 1960s, as a result of economic prosperity, the European Community (then the European Economic Community) was not very active in the fields of labour and social security law [8, p. 278]. At the end of the 1960s, social policy first emerged as a force independent of economic policy. An important stage in the development of social policy was ushered in by the Single European Act of 1986, which in turn led to the Charter of the Fundamental Social Rights of EC Workers and the EC Commission's Action Programme for the fields of labour and social policy [8, p. 278]. The latter acts did not create an extensive foundation for an EC common social policy. Neither was particular social identity established with the EU Treaty, which left the social policy conditions set down in the EC Treaty without essentially unchanged [5, D II Rdnr. 12-13]. The signing of a protocol on social policy was, however, achieved in 1992, whereunder a social policy agreement was also concluded between the Member States. The United Kingdom of Great Britain and Northern Ireland did not participate in this agreement. Under the above-mentioned agreement, the Council, on the recommendation of the Commission, passes decisions in five fields by a unanimous vote: (1) social security and the social protection of workers, (2) the protection of workers in the event of termination of employment contract, (3) representation, and the collective consideration of workers' and employers' interests, including participation in the management of a establishment, (4) the working conditions of inhabitants of third countries and (5) financial resources for the advancement of employment [17, p. 181; 6, D II Rdnr. 29-37; 8, pp. 279-280].
In the preamble of the European Community Treaty, the objectives of EC social policy are described, with the intention of "ensuring the economic and social progress of Member States... and ...seeking the continuous improvement in the living and working conditions of the nationals of the Community". As a result of that objective, the obligation "to provide for a high level of employment and social security, improve the quality of life and standard of living and promote solidarity between Member States and social cohesion" was established by Article 2 of the EC Treaty as tasks of the EC. These components of EC social policy acquired tangible assertion in Chapter VIII of the EC Treaty, which embodies Articles 117-127 of the EC Treaty. Articles 117, 118 an 119 are of greatest importance from the point of view of the regulation of the social protection of migrant workers.
Under Article 117, Member States are required to promote the improvement of the living and working conditions of workers; in accordance with Article 118, the EC Commission, in keeping with its general objectives, has the task of also promoting co-operation between Member States in the field of social security. Pursuant to Article 119, men and women must be guaranteed equal pay for equal work. The EC, accordingly, has the objective of only strengthening co-operation between Member States regarding social questions. Both social security law and social security policy are, to a significant degree, left to the discretion of the Member States [6, D II Rdnr. 5].
Outside the separate chapter on social policy, the EC Treaty also includes many other provisions which also have a significant social policy importance. Here one must above all mention the measures for guaranteeing the social security rights provided for in Articles 49-51 of the EC Treaty. The above-mentioned measures are to facilitate making the free movement of labour prescribed by the EC Treaty (Article 48) effectively available and accessible to every national of the EU Member States [6, D II Rdnr. 4]. Rules regarding workers' social security constitute an indispensable addition to the principle of the free movement of labour.
With the Amsterdam Treaty, an important step has been taken towards the delineation and development of a common European social policy. What are the greatest changes to have been made by the Amsterdam Treaty in the field of social security?
First of all, the Amsterdam Treaty makes technical changes to the EC Treaty such as the renumbering of the text of the treaty. The following are the most important social security provisions contained in the Amsterdam Treaty:
| EC Treaty (Maastricht) | EC Treaty (Amsterdam) |
| Art. 6 | Art. 12 |
| 48 | 39 |
| 49 | 40 |
| 50 | 41 |
| 51 | 42 |
| 117 | 136 |
| 118 | 137 |
| 119 | 141 |
Whereas the social policy provisions of the former EC Treaty were to be found in Chapter VIII, they are now contained in Chapter XI. In addition to technical changes, the modified EC Treaty also contains certain differences in terms of substance compared with the amendments made to the Maastricht Treaty.
Pursuant to Article 51 of the former version of the EC Treaty, the Council, on the recommendation of the Commission, unanimously decided on the mechanisms for safeguarding the social security guarantees for migrant workers. Pursuant to Article 51, no opportunity is foreseen for the European Parliament to take part in the passing of the relevant acts [9, § 51, comm. 34]. In accordance with a modification made by the Amsterdam Treaty, the Council indeed decides unanimously, although the European Parliament is involved in the process, pursuant to Article 251 of the modified EC Treaty. In other respects, however, Article 42 retains the principles formulated in the previous Article 51.
More significant changes have taken place in the separate chapter on social policy. The first significant change is that the previous appendix to the Maastricht Treaty, entitled "Agreement on Social Policy" has now been added in its entirety to the EC Treaty [7, p. 708] and thus social policy has also extensively become an operation field of EC policy. It was indeed possible to reformulate Regulations regarding social affairs, since the change of government in the United Kingdom of Great Britain made possible the integration of a social policy agreement into the EC Treaty [14, p. 144].
One must, however, consider the new version of Article 136 of the EC Treaty to be extraordinary. Under this Article, both the members of the Community and the Member States undertake the obligation to improve and equalise living and working conditions, taking into consideration the...
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