Among the 21 contracting states of the European Code of Social Security, we can distinguish four different types of courts, each of which is competent to hear judicial reviews, namely:
-ordinary courts (whether civil or administrative);
-‘mixed court’ systems, whereby the determination of the competent court depends on the precise kind of benefit at stake or on the way in which the domestic courts system is organised;
-specialised social security tribunals;
-quasi-judicial authorities.
As we shall detail below, Switzerland has chosen a unique model, which belongs to the “mixed courts” category, even though Switzerland is far from being subject to the same problems, which are common to the other countries which belong to this category.
41 Since the reform of 30th September 2011. For more information, see the report published by the
European Council:
<http://ec.europa.eu/employment_social/empl_portal/SSRinEU/Your%20social%20security%2 0rights%20in%20Italy_en.pdf>.
1. Systems awarding jurisdiction to the ordinary courts
Seven out of the twenty-one contracting states of the European Code of Social Security have chosen to allocate jurisdiction relating to social security matters to their ordinary courts, and in particular to administrative courts. The jurisdiction of administrative courts can easily be explained by the fact that one of the parties involved in social security benefits claims is necessarily an administrative body (namely, a social security agency), governed by administrative rules.
Among the countries considered, the following countries have chosen to allocate jurisdiction to their administrative courts: Estonia,42 Greece,43 the Netherlands,44 Portugal,45 Romania,46 and Sweden.47 Each of their respective administrative courts apply standard administrative procedural law to proceedings relating to social security claims.
Each of the 6 countries mentioned above has a three-tier structure, which means that claimants can present their claim first before an administrative court, and then before an administrative court of appeal, and finally (but rarely as claims regarding social security benefits usually concern facts and not the law), to the Administrative Section of the National Supreme Court.48
On the other hand, the Czech Republic, which also allocates jurisdiction to its ordinary courts, is the only country, which has adopted what could be classified as a “binary system”, where the civil courts are competent at first and second instance appeal, applying the Code of Administrative Justice.49 Final appeals are then submitted to the Supreme Administrative Court.50 This structure stands out from all others in this category.
42 Art. 87(1) of the Administrative Procedure Act (Haldusmenetluse seadus).
43 Art.63 ff of the Code of Administrative Procedure.
44 Art. 8:1 of the General Act on Administrative Law (Algemene wet bestuursrecht).
45 Art.77 of the Social Security System Framework Law, 2007 (Lei de Bases da Segurança Social).
46 Art. 8(1) of Law n°554/2004 on administrative litigation.
47 Section 23 of the Administrative Court Procedure Act (Förvaltningsprocesslag).
48 For example, in Portugal, the claimant must first challenge the decision before the lower administrative courts (Art. 53 of the Procedural Code for Administrative Courts (Código de Processo nos Tribunais Administrativos)), then an appeal can be presented before the central administrative courts (Art. 49 of the Procedural Code for Administrative Courts (Código de Processo nos Tribunais Administrativos)) and finally, if the claimant is still unsatisfied, he or she can go before the Administrative Supreme Court (Art. 12 of the Administrative and Fiscal Courts Act (Estatuto dos Tribunais Administrativos e Fiscais)).
49 Art. 7(1) of the Code of Administrative Justice (Zakon o spravnim soudnictvi).
50 Art. 103 of the Code of Administrative Justice (Zakon o spravnim soudnictvi).
2. Systems awarding jurisdiction to different courts: the ‘mixed court’ system
In four of the contracting states of the European Code of Social Security, laws designate two different jurisdictions as competent in dealing with social security appeals: ordinary courts and specialised labour tribunals, depending on the specific social benefits in question. This is the case in France,51 Italy,52 and Turkey.53 French54 and Italian55 doctrine, in particular, criticize this dualism of court jurisdiction, which renders it difficult, if not sometimes impossible, for both lawyers and claimants to determine which authority is competent.
In these countries, the courts also suffer from a difficulty to distinguish actions, as they do not have a stable material scope of action (ratione materiae). A dual system is therefore counterproductive as it undermines the efforts of the state to establish specialised proceedings and to bestow a special status on the claimant, who can easily become lost in a “procedural maze”.
In Switzerland, which is a federal state, discretion is left to the cantons at the first instance to determine which kind of court shall have jurisdiction to hear social security appeals. Indeed, at first instance, cantons have the choice to establish special insurance courts for social security appeals or to delegate competence to cantonal administrative courts. All appeals thereafter fall within the competence of the Federal Supreme Court.56
51 In France, distinct courts are in charge of social security matters: social security courts (tribunaux des affaires de sécurité sociale) which only deal with the disputes set out in Article L. 142-3 of the Social Security Code, incapacity dispute courts (tribunaux du contentieux de l’incapacité) whose competence is defined in Article L 143-1 of the Social Security Code (Code de la sécurité sociale), and administrative courts which are in the charge of any remaining “social disputes”, as set out in Decree No. 2013-730 of 13th August 2013.
52 In Italy, the Court of Cassation held that the administrative judge enjoys authority in the field of welfare (Court of Cassation, United Sections, 17 May 1991, No. 5530) whereas for pensions, the administrative jurisdiction is competent. For more information, read RENGA,p.117.
53 In Turkey, the Social Security Act and Art. 101 of Law No. 5510 on social security and universal health insurance provide that social security conflicts shall be resolved before the labour courts, which are to apply the Code of Civil Procedure. However, for some benefits such as pensions or social assistance, the applicable pieces of legislation (such as Law No. 2022 on the grant of pensions or Law No. 3294 on social assistance and solidarity funds) do not provide any indications as to the competence of the labour courts. Therefore, administrative courts are deemed to be competent. For more information, read DOGAN-YENISEY, p. 225-228.
54 JOXE, p. 55-97; LAROQUE M., p. 1102-1005; LAROUE P., p. 274-278; SUPIOT, p. 101-106;
VOXEUR, p. 1634.
55 RENGA, p. 31-36.
56 Art. 62 LPGA.
The cantons are thus responsible for defining which first instance court has jurisdiction for social security matters. Whereas some cantons have established special insurance courts, others have integrated them into the cantonal administrative courts.57 For example, the cantonal public law court in Neuchâtel has jurisdiction in matters of social security, whereas in the cantons of Geneva, Valais and Vaud, a specific cantonal insurance court has been set up as the competent court, in line with the definition of “cantonal insurance court” in Article 57 LPGA.
The Swiss policy of leaving such decision to the cantonal authorities is a particularity when compared against the other federal states of this study, namely, Belgium, Germany and Spain, which have all implemented the same court structure in all regions and at all instances of the proceedings.
3. Systems allocating jurisdiction to specialised tribunals and courts
A number of States have chosen to establish specialised tribunals to deal with social security claims, namely Belgium,58 Germany,59 Luxembourg,60 Norway,61 Slovenia,62 Spain,63 and the United Kingdom.64
Some countries have chosen to award jurisdiction to labour courts (which generally apply the principles of civil procedure)65 or to specific social security tribunals, which are formed by statute, thus introducing a greater flexibility to accommodate the claimants.66
The creation of a specialised tribunal reveals the will of the legislator to take into account the considerable technicality of social security matters. Some authors claimed
57 GÄCHTER/TREMP, p. 38-39.
58 See Art. 578 of the Belgian Judicial Code (Code judiciaire), which delegates competence to the labour courts.
59 See para. 51 of the German Act on the Jurisdiction of Social Matters (Gesetz über die Sozialgerichtsbarkeit, SGG).
60 See Art. 454(1) of the Social Security Code of Luxembourg (Code de la sécurité sociale).
61 See Para. 2 of the Norwegian National Insurance Court of Appeal Act (Lov om anke til Trygderetten).
62 See Art. 7 of the Slovenian Labour and Social Courts.
63 See Art. 9.5 of the Judiciary Organic Act 1985 of Spain (Ley Orgànica del Poder Judicial, which attributes competence to the labour tribunals.
64 See Section 12 of the Social Security Act 1998.
65 As in Belgium or Spain.
66 As is the case in Germany (with the Federal Social Security Court (Bundessozialgericht)), Luxembourg (with the High Council of Social Security (Conseil supérieur de la sécurité sociale), Norway (with the National Insurance Court (Trygderetten)), Slovenia (with the Higher Labour and Social Court (Višje delovno in socialno sodišče)) and the United Kingdom (with the Upper Tribunal).
that the establishment of a specialised social security court having the same standing as all other courts was a German exception,67 but it appears that this model has also been adopted in Slovenia.68 However, it is true that Germany is the only country of this category which has created a completely specialised court system for social security law, in the sense that a social security court exists at all levels of the court hierarchy, including at the highest level, where final appeals can be brought before the Federal Social Security Court (Bundessozialgericht).
Specialised tribunals appear to be a very efficient means to tackle social security issues. As early as 1932, the British Committee on Ministers’ Powers stated: “such tribunals […] possess the requisite expert knowledge of their subject […]. Such tribunals may also be better able at least than the inferior Courts of Law to establish uniformity of practice.”69
Specialised tribunals all have in common the fact that they grant special consideration to the claimant, as illustrated by Lord Denning, who explained that proceedings in social security law “are not to be regarded as if they were a law suit between opposing parties. The injured person is not a plaintiff under a legal burden of proof. They are more in the nature of an enquiry before an investigating body charged with the task of finding out what happened and which are the consequences.”70 Therefore, the creation of these specialised tribunals, which are aware of their social role and of the impact that their decisions may have on the lives of the parties, represent a positive measure by the State to protect the social rights of its citizens.
4. The quasi-judicial systems
Three countries (namely Cyprus71, Denmark72 and Ireland73) have chosen to
“dejudicialise” social security claims, that is, to implement systems where claims are all dealt with before the appeal agencies of the social security authorities, whose decisions are then final and are not taken further before the courts. This system aims to keep claims at the administrative level, to tackle the various technical issues at hand.
67 EICHENHOFER, p. 140; ZACHER, p.775.
68 In Slovenia, first instance social courts and the Higher Labour and Social Court have jurisdiction for social security matters under Art. 7 of the Labour and Social Courts Act.
69 Donoughmore Report, p.97.
70 R. v. National Insurance Commissioner (1974) 2 All E R 724.
71 See Art. 83 of the Social Insurance Act.
72 See Art. 50(1) of the Consolidation Act on Legal Protection and Administration in Social Matters (Retsikkerhedsloven).
73 See Sections 317-318 of the Social Welfare Consolidation Act 2005.
However, in exceptional cases, the claimant may appeal further before the Supreme Court in Cyprus,74 before the High Court in Ireland,75 or before ordinary courts in Denmark.76
Such a system manifestly aims to minimise the formalities bearing upon the claimant, but it might also create some sense of a frustration for claimants, who thereafter have no second instance to which they can present their appeal should they wish to call into question the decision taken by the social security authorities.
As demonstrated above, four distinctive adjudicative models co-exist among the contracting states of the European Code of Social Security. Nevertheless, the fact that different courts have jurisdiction to hear social security claims does not necessarily imply that the procedural rights granted to individuals in different countries are substantively different from one court to the next, even though specialised tribunals appear to dedicate more care to the consideration of the special position of the claimant than the ordinary courts. The third section shall hence compare the proceedings and rights granted to the parties.