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European Code of Social Security (Revised) (ETS No 139)

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European Code of Social Security (Revised) (ETS No 139) ...

     European Treaty Series - No. 139

    EUROPEAN CODE OF SOCIAL SECURITY

    (REVISED)

    Rome, 6.XI.1990

2 ETS 139 Social Security (Revised Code), 6.XI.1990

     The member States of the Council of Europe, signatory hereto,

     Considering that the aim of the Council of Europe is to achieve a greater unity between its

    members for the purpose, among others, of promoting their social progress;

     Considering the value of harmonising the protection guaranteed by social security and the

    charges which result therefrom in conformity with common European standards;

     Noting that national social security legislation has developed in most Council of Europe

    member States since the European Code of Social Security and the Protocol thereto were

    opened to signature on 16 April 1964;

     Believing that this development necessitates a revision of those instruments to the full extent

    appropriate, with a view, on the one hand, to adjusting them to the present aspirations and

    capacity of European society and, on the other hand, to extending social security protection to

    the whole population, together with individual social rights, and eliminating discrimination, in

    particular discrimination based on sex;

     Recognising the advantage of improving the standards laid down in the European Code of

    Social Security and its Protocol and giving them greater flexibility and of embodying new

    standards in a revised Code designed progressively to take the place of the Code and Protocol

    of 16 April 1964,

     Have agreed on the following provisions, which have been drawn up with the collaboration of

    the International Labour Office:

    Part I General provisions

     Article 1

     For the purpose of this (revised) Code:

     a the term “Committee” means the Steering Committee for Social Security of the Council of

    Europe or any other committee designated by the Committee of Ministers to carry out the

    tasks entrusted to the Committee by the provisions of this (revised) Code;

     b the term “legislation” includes laws and regulations as well as social security rules;

     c the term “prescribed” means determined by or in virtue of national legislation;

     d the term “resident” means a person ordinarily resident in the territory of the Party

    concerned;

     e the term “qualifying period” means a period of contribution, a period of occupational

    activity or a period of residence, including any period treated as such or any combination

    thereof, as may be prescribed for conferring entitlement to benefit;

     f the term “dependant” refers to the state of dependency presumed in prescribed cases;

     g the term “surviving spouse” designates the spouse who was dependent on the deceased

    person at the time of the latter's decease and who has not remarried;

     ETS 139 Social Security (Revised Code), 6.XI.1990

     h the term “child” means:

     i a child not having reached school-leaving age, or under 16 years of age;

     3 ii under prescribed conditions, a child over the age specified in the foregoing

    sub-paragraph who is an apprentice or a student or suffers from chronic illness or

    infirmity making him unfit to engage in any occupational activity.

     Article 2

     1 Each Party which has undertaken to regard itself as bound by the commitments embodied in

    paragraphs 1 to 3 of Article 12 of the European Social Charter of 18 October 1961 or has

    accepted the obligations embodied in the European Code of Social Security of 16 April 1964

    shall comply with:

     a Part I;

     b at least one of Parts II to X;

     c the corresponding provisions of Parts XI and XII; and

     d Part XIII,

     of this (revised) Code.

     2 Every other Party shall comply with:

     a Part I;

     b at least three of Parts II to X;

     c the corresponding provisions of Parts XI and XII; and

     d Part XIII,

     of this (revised) Code.

     Article 3

     1 Each Contracting State shall specify in its instrument of ratification, acceptance, approval or

    accession the part or parts of Parts II to X in respect of which it accepts the obligations

    embodied in this (revised) Code.

     2 Each Party shall secure to the persons protected, in connection with any of the Parts II to X for

    which it accepts the obligations embodied in this (revised) Code, the benefit provided for in

    that part for the contingency or contingencies covered, in accordance with the provisions of

    that part.

     ETS 139 Social Security (Revised Code), 6.XI.1990 3 Each Contracting State accepting the obligations embodied in Parts II, III, IX and X shall be

    deemed also to comply with the obligations embodied in Part VI, if its legislation entitles

    victims of work accidents or occupational diseases to medical care, sickness and invalidity

    benefit and their survivors to survivors' benefit, irrespective of the origin of the respective 4contingencies and provided that such legislation does not make entitlement to benefit

    conditional on any qualifying period. For the purposes of this paragraph, a Contracting State

    deemed to comply with the obligations embodied in Part X in accordance with paragraph 4 of

    this article shall be considered to have accepted the obligations of Part X.

     4 Each Contracting State accepting the obligations embodied in Parts V, VII and IX shall be

    deemed also to comply with the obligations of Part X if, where Parts V and IX are concerned, its

    legislation protects the total economically active population and if, where Part VII is concerned,

    its legislation protects all children of the economically active population.

     5 Any Contracting State which wishes to avail itself of the provisions of paragraphs 3 or 4 of this

    article shall so specify in its instrument of ratification, acceptance, approval or accession.

     6 Each Party shall endeavour to take appropriate measures to ensure equal treatment for

    protected persons of both sexes in the application of those parts of the present (revised) Code

    whose obligations it has accepted.

     Article 4

     1 Any Party may subsequently notify the Secretary General of the Council of Europe that it

    accepts the obligations embodied in this (revised) Code in respect of one or more of Parts II to X

    not already specified in its instrument of ratification, acceptance, approval or accession.

     2 The undertakings referred to in the foregoing paragraph shall be deemed to be an integral part

    of the ratification, acceptance, approval or accession and shall have the same effects from the

    date of their notification.

     Article 5

     Acceptance of the obligations embodied in any of Parts II to X of this (revised) Code shall, from

    the date of entry into force of those obligations for the Party concerned, result in the

    corresponding provisions of the European Code of Social Security and, where appropriate, of

    its Protocol ceasing to apply to the Party concerned in the event of that Party being bound by

    the first of those instruments or by both instruments. However, acceptance of the obligations

    embodied in any of Parts II to X of this (revised) Code shall be deemed to constitute acceptance

    of the corresponding provisions of the European Code of Social Security and, where

    appropriate, of its Protocol, for the purpose of the application of Article 2 of the said Code.

     Article 6

     For the purpose of applying Parts II, III, IV, V, VIII (insofar as this last-mentioned part relates to

    medical care), IX and X of this (revised) Code, a Party may take into account protection

    afforded by means of insurance which, although not compulsory under its legislation for the

    persons protected:

     ETS 139 Social Security (Revised Code), 6.XI.1990 a is supervised by the public authorities or administered, in accordance with prescribed

    rules, by employers and employees, or, where appropriate, by self-employed or 5non-active persons; and

     b complies, in conjunction with other forms of protection, where appropriate, with the

    relevant provisions of this (revised) Code.

     Article 7

     1 Any Party may by a declaration addressed to the Secretary General of the Council of Europe

    derogate from the provisions of paragraphs 1 to 3 of Article 9, paragraph 1 of Article 17,

    paragraph 1 of Article 27, paragraph 2 of Article 29, paragraphs 1 to 3 of Article 52 and from

    the provisions in Part X concerning the award of benefits to a surviving spouse under the

    conditions stated respectively in paragraph 4 of Article 9, paragraph 2 of Article 17,

    paragraphs 2 and 3 of Article 27, paragraph 3 of Article 29, paragraph 4 of Article 52 and

    Article 70.

     2 Any Party may by a declaration addressed to the Secretary General of the Council of Europe

    derogate from other provisions of Parts II to X and from the provisions of Article 74 of this

    (revised) Code provided that the Party's legislation guarantees at least equivalent protection, in

    the whole of the part considered, to that laid down in this (revised) Code. However, the

    formulation of such derogations shall be subject to the approval of the Committee of Ministers

    of the Council of Europe given by a decision taken by the majority provided for in Article 20.d

    of the Statute of the Council of Europe on the basis of a proposal by the Committee referred to

    in sub-paragraph a of Article 1 of this (revised) Code, adopted by a two-thirds majority of votes

    cast.

     3 Any State may at the time of signature or when depositing its instrument of ratification,

    acceptance, approval or accession, declare that it excludes from the application of one or more

    parts of this (revised) Code civil servants protected by special schemes which award, in total,

    benefits at least equivalent to those provided for by this (revised) Code.

    Part II Medical care

     Article 8

     The contingency covered shall comprise the need for medical care of a curative nature and,

    under prescribed conditions, the need for medical care of a preventive nature.

     Article 9

     1 The persons protected shall comprise:

     a all employees, including apprentices, together with their dependent spouses and their

    children; or

     b all economically active persons together with their dependent spouses and their children;

    or

     c all residents.

     ETS 139 Social Security (Revised Code), 6.XI.1990 2 Notwithstanding the provisions of the foregoing paragraph, any Party may exclude from the

    application of this part:

     a classes of employees constituting in all no more than 5% of all employees; or 6

     b classes of the economically active population constituting in all no more than 10% of the

    total economically active population; or

     c classes of residents constituting in all no more than 10% of all residents.

     3 Where either sub-paragraph a or b of paragraph 1 of this article applies, persons receiving any

    of the following benefits or applying for one of the benefits provided for under

    sub-paragraphs a or b of this paragraph:

     a invalidity, old-age or survivors' benefit;

     b benefit for permanent disablement to a prescribed degree or survivors' benefit, in the case

    of a work accident or occupational disease;

     c unemployment benefit,

     together with their dependent spouses and their children, shall continue, under prescribed

    conditions, to be protected.

     4 Any Party may derogate from the provisions of paragraphs 1 to 3 of this article if its legislation

    requires medical care to be guaranteed:

     a to prescribed classes of employees constituting in all at least 80% of all employees; or

     b to prescribed classes of the economically active population constituting in all at least 75%

    of the total economically active population; or

     c to prescribed classes of residents constituting in all at least 70% of all residents,

     and in the case of illness requiring prolonged treatment, to all residents.

     Article 10

     1 Medical care shall comprise:

     a general practitioner care and specialist care, inside or outside hospitals, including the

    necessary diagnoses and tests, as well as domiciliary visits;

     b care provided by a member of a profession legally recognised as allied to the medical

    profession, under the supervision of a medical or other qualified practitioner;

     c the provision of the necessary pharmaceutical supplies on prescription by a medical

    practitioner or other qualified practitioner;

     ETS 139 Social Security (Revised Code), 6.XI.1990 d maintenance in a hospital or any other medical institution;

     e dental care including the necessary dental prostheses;

     7 f medical rehabilitation, including the supply, maintenance and renewal of prosthetic and

    orthopaedic appliances as well as medical aids as may be prescribed;

     g transport of the patient as may be prescribed.

     2 Where a Party's legislation requires the beneficiary or the beneficiary's breadwinner to share in

    the cost of medical care, the rules governing such cost-sharing shall be such as not to impose

    hardship or render medical and social protection less effective.

     3 Medical care shall aim at preserving, restoring or improving the health of the person protected

    and his ability to work and to meet his personal needs.

     Article 11

     Where a Party's legislation makes entitlement to medical care conditional on the completion of

    a qualifying period, that period shall be no longer than is considered necessary to prevent

    abuse.

     Article 12

     1 Medical care shall be provided throughout the contingency covered.

     2 Where either sub-paragraph a or b of paragraph 1 of Article 9 applies, the right to medical care

    shall subsist under prescribed conditions for anybody ceasing to belong to one of the classes of

    persons protected.

Part III Sickness cash benefit

     Article 13

     The contingency covered shall be incapacity for work resulting from an illness or accident and

    entailing suspension of earnings as defined by national legislation.

     Article 14

     1 The persons protected shall comprise:

     a all employees, including apprentices; or

     b prescribed classes of the economically active population constituting in all at least 80% of

    the total economically active population.

     2 Notwithstanding the provisions of sub-paragraph a of the foregoing paragraph, any Party may

    exclude from the application of this part classes of employees constituting no more than 10% of

    all employees.

     ETS 139 Social Security (Revised Code), 6.XI.1990 Article 15

     Sickness cash benefit shall take the form of periodical payments calculated in accordance with

    the provisions either of Article 71 or of Article 72. Their amount may vary in the course of the 8contingency provided that their average amount complies with those provisions.

     Article 16

     Where a Party's legislation makes entitlement to sickness cash benefit conditional on the

    completion of a qualifying period, that period shall be no longer than is considered necessary to

    prevent abuse.

     Article 17

     1 Where a Party's legislation provides that sickness cash benefit shall not be paid until a waiting

    period has elapsed, that period shall not exceed the first three days of suspension of earnings.

     2 Any Party which applies Article 14, paragraph 1, sub-paragraph b may derogate from the

    provisions of the foregoing paragraph in the case of self-employed workers.

     3 Sickness cash benefit shall be payable throughout the duration of the contingency covered or

    until the payment of old-age, invalidity or rehabilitation cash benefit. However, the duration of

    its payment may be limited to fifty-two weeks for each case of illness or to seventy-eight weeks

    in any consecutive period of three years, as may be prescribed.

     Article 18

     1 In the case of the death of a person who was in receipt of, or entitled to receive, sickness cash

    benefit, a grant for funeral costs shall, under prescribed conditions, be paid to his survivors,

    dependants or other persons specified by national legislation.

     2 Any Party which has accepted the obligations embodied in Part X shall be deemed to comply

    with the requirements of the foregoing paragraph.

Part IV Unemployment benefit

     Article 19

     1 The contingencies covered shall include, under prescribed conditions:

     a total unemployment, defined as the absence of earnings due to the inability to obtain

    suitable employment, in the case of a person protected who is capable of, available for and

    actually seeking employment;

     b unemployment, other than total, defined as a loss of earnings, due to either or both of the

    following situations:

     ETS 139 Social Security (Revised Code), 6.XI.1990 i a reduction of the working hours in comparison with the normal or legal working

    time, for reasons other than the worker's state of health or personal convenience,

    without termination of the work relationship;

     9 ii the inability to obtain suitable full-time employment, in the case of an unemployed

    person who, while accepting part-time employment, is capable of, available for and

    actually seeking full-time employment.

     2 In assessing the suitability of employment, account shall be taken, under prescribed conditions

    and as far as appropriate, of the age of the unemployed person, the length of his service in his

    previous occupation, his experience, the duration of his unemployment, the state of the labour

    market and the employment's impact on his personal and family circumstances.

     Article 20

     1 The persons protected shall comprise:

     a all employees, including apprentices; or

     b prescribed classes of the economically active population, constituting in all at least 70% of

    the total economically active population.

     2 a Notwithstanding the provisions of sub-paragraph a of the foregoing paragraph, any Party

    may exclude from the application of this part classes of employees constituting no more

    than 15% of all employees;

     b notwithstanding the provisions of the foregoing paragraph, any party may exclude from

    the application of this part civil servants enjoying prescribed guarantees of employment

    security.

     3 In addition, the persons protected shall comprise, under prescribed conditions, at least two of

    the following eight classes of persons who have never belonged, or who have ceased, for a

    prescribed period, to belong, to the group of protected persons referred to in paragraph 1 of

    this article:

     a young persons having completed vocational training;

     b young persons having completed their studies;

     c young persons discharged from compulsory military service;

     d parents at the end of a period devoted to bringing up a child after the end of maternity

    leave;

     e persons whose spouse is deceased;

     f divorced persons;

     g discharged prisoners;

     h disabled persons who have completed their occupational rehabilitation.

     ETS 139 Social Security (Revised Code), 6.XI.1990 Article 21

     1 In the case of total unemployment, benefit shall take the form of periodical payments,

    calculated in accordance with the provisions of either Article 71 or Article 72.

     10

     2 In the case of unemployment other than total, benefit shall take the form under prescribed

    conditions, of periodical payments constituting equitable compensation for loss of earnings due

    to unemployment, such that the sum of the recipient's earnings and this benefit at least equals

    the amount of the benefit which would be paid pursuant to the foregoing paragraph in the case

    of total unemployment.

     3 Notwithstanding the provisions of paragraphs 1 and 2 of this article, benefit may take the form

    of periodical payments calculated in accordance with Article 73 where:

     a it is awarded without any qualifying period, to classes of persons referred to in

    paragraph 3 of Article 20; or

     b the payments are continued beyond a minimum period of thirty-nine weeks.

     Article 22

     1 Where a Party's legislation makes entitlement to unemployment benefit conditional on the

    completion of a qualifying period, that period shall be no longer than is considered necessary to

    prevent abuse.

     2 In the case of seasonal workers, the qualifying period referred to in the foregoing paragraph

    may be adapted to the conditions of their occupational activity.

     3 The qualifying condition referred to in paragraph 1 of this article may be adapted to the special

    situation of the classes of persons referred to in paragraph 3 of Article 20.

     Article 23

     1 Where a Party's legislation provides that the benefit referred to in paragraph 1 of Article 21

    shall not be paid until a waiting period has elapsed, that period shall not exceed:

     a the first three days of unemployment in each case of unemployment, the days of

    unemployment before and after temporary employment not exceeding a prescribed

    period being counted as part of the same case of unemployment; or

     b the first six days in the course of a period of twelve months.

     2 In the case of seasonal workers, the waiting period referred to in the foregoing paragraph may

    be adapted to the conditions of their occupational activity.

     3 Notwithstanding the provisions of the first paragraph of this article the waiting period may be

    increased to twenty-six weeks if benefit is awarded without any qualifying period, to classes of

    persons referred to in paragraph 3 of Article 20.

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