Book Chapter
Reference
The complaint and appeal mechanisms for social security claims in the contracting states of the European Code of Social Security : a
comparative overview
MICHOUD, Adeline
MICHOUD, Adeline. The complaint and appeal mechanisms for social security claims in the contracting states of the European Code of Social Security : a comparative overview. In: Rashid Bahar et Thomas Kadner Graziano. Le droit comparé et le droit suisse . Genève :
Schulthess éditions romandes, 2018. p. 65-85
Available at:
http://archive-ouverte.unige.ch/unige:148576
Disclaimer: layout of this document may differ from the published version.
The complaint and appeal mechanisms for social secu- rity claims in the contracting states of the European Code of Social Security: a comparative overview
Introduction
Social security benefits have contributed to maintain a certain social cohesion in Europe by reducing poverty.1 In Switzerland, the Constitution enshrines social security rights. In fact, the Swiss Federal Constitution, adopted in the year 2000, contains a number of guarantees concerning social security rights, among which Article 12: "Whoever is in distress and is not able to maintain himself/herself has the right to be helped and assisted and to receive the necessary means to carry out an existence in conformity with human dignity.” Under Article 41 of the Constitution, the Federal state and the cantons are responsible for the implementation of social security benefits. Articles 111 to 117 of the Constitution detail the many benefits to which individuals are entitled.
Yet, a right is only operational if individuals can benefit from its application and obtain compensation where it is wrongly applied.2 However, because of the inherent inequality of arms that exists between the individual claimant and the public social security authorities, strong procedural principles need to be asserted to facilitate the claimant’s access to justice.3
At the European level, Article 69 of the European Code of Social Security (ECSS) affords to the individual a right of complaint and appeal regarding social security benefits before the relevant authority, albeit without detailing how to implement this provision.
The European Code of Social Security is an instrument drafted by the Council of Europe, which establishes minimum social security requirements that member states
1 See in particular: CRANSTON p. 15; DE BURCA/DE WITTE p. 4; KAHIL-WOLFF/GREBER p. 18;
MIKKOLA p. 259.
2 The question of the justiciability of social rights has been extensively discussed in doctrine:
AKANDJI-KOMBÉ, p. 475-476; CAMAKI p. 847; COURTIS, p.380; ROMAN, L’accès à la justice sociale, p.753.
3 BUGNON, p. 474-475 ; ROMAN, Le contentieux technique, p.736.
should satisfy. Twenty-one states4 have ratified the European Code of Social Security, which entered into force in Switzerland on 17th September 1978.
The present article aims to compare the different complaint and appeal mechanisms open to individuals wishing to challenge a decision relating to their access to social security benefits in the 21 contracting states of the European Code of Social Security.
It is therefore important to try to categorise the functioning of these complaint and appeal systems, while using examples of the jurisdictions of the 21 contracting states mentioned above (including Switzerland). In particular, we shall compare Swiss practice with the other models currently applied.
A comparative study is a tool often used by international organisations, such as the Council of Europe and the International Labour Organization (ILO), to identify the best practices put in place among a selection of countries and later include them in international legal standards to harmonize the law at the international level.5 This is where the importance and interest of comparative law lies: understanding the functioning of foreign legal systems to then use them as inspiration to improve national and international practice.
We shall divide our discussion in three distinctive parts:
1) The first part of this discussion shall look to outline how the administrative complaints system functions in each of the respective contracting states of the ECSS, that is, how individuals can challenge a decision before the social security administrative authorities;
2) We shall then compare the different authorities having competence over so- cial security matters in the domestic judicial order of each of the 21 countries;
3) Finally, we will examine the various procedural rights granted to claimants before the courts.
4 The European Code of Social Security has been adopted and ratified by the following 21 European states on the respective dates: Belgium (14/08/1970), Cyprus (16/04/1993), Czech Republic (09/09/2001), Denmark (17/02/1974), Estonia (20/05/2005), France (18/02/1987), Germany (28/01/1972), Greece (10/06/1982), Ireland (17/02/1972), Italy (21/01/1978), Luxembourg (04/04/1969), Netherlands (17/03/1968), Norway (17/03/1968), Portugal (16/05/1985), Romania (10/10/2010), Slovenia (27/02/2005), Spain (09/03/1995), Sweden (17/03/1968), Switzerland (17/09/1978), Turkey (08/03/1981) and the United Kingdom (13/01/1969). The full list is accessible at : <https://www.coe.int/en/web/conventions/full-list/- /conventions/treaty/048/signatures?p_auth=U0a4XNUz>.
5 KORDA, p. 132-134; KULKE p. 121-122; SAYN p. 13-15.
Our conclusion shall provide a few ideas inspired on the good practices that should be well-spread among jurisdictions to secure an efficient right to complain and appeal in Europe for social security matters.
The Administrative Complaints Systems in Europe
Pursuant to Article 69 of the European Code of Social Security, “every claimant shall have a right of appeal in case of refusal of the benefit or complaint as to its quality or quantity”.
Despite the apparent willingness of the drafters of the Code to grant a general right to complain or appeal, the Code fails to precisely determine which authorities have the competence to hear social security claims.
Moreover, Article 69 does not seem to distinguish between administrative complaints on the one hand (that is, an action taken at the administrative level by a citizen who is unsatisfied by the original decision taken by the social security agency, and appeals (which represent a legal action brought before the courts to challenge a decision taken by a social security agency). Yet, the distinction between the two is crucial.
In Switzerland, a clear distinction has been made between complaints and appeals, as set out in the General Law on Social Insurance (LPGA),6 the Law governing social insurance matters, which entered into force in 2003 and introduced the most important procedural rules with regard to social security claims in Articles 27-62 LPGA.
Pursuant to Article 52 LPGA, if a claimant wishes to raise an objection against an administrative decision relating to his or her social security benefits, he or she must first go through an internal administrative procedure, which is free of charge7 and during which the social security agency shall review the disputed decision that it has taken.8 If, by the end of the administrative review, the claimant is dissatisfied with the decision taken, he or she can initiate judicial proceedings before the lower court, the
“tribunal cantonal des assurances.” The appeal must be presented within 30 days of the notification of the administrative decision.9 If the decision of the lower court still
6 General Law on Social Insurance (Loi fédérale sur la partie générale du droit des assurances sociales (LPGA).
7 Pursuant to Art. 45 LPGA, the costs of processing are borne by the authority, which took the original contested measures.
8 It should nevertheless be noted that with regards to old-age, survivors and invalidity benefits, the claimant does not go through an internal administrative procedure but rather he or she is required to bring an action before the District Court of Insurance (tribunal cantonal des assurances), pursuant to Art. 73 of the Federal Law on Old-Age, Survivors’ and Invalidity Benefits Scheme, Loi Prévoyance Professionnelle vieillesse, survivants et invalidité (LPP).
9 Article 56-61 LPGA.
does not bring satisfaction, the claimant can further appeal before the Federal Supreme Court of Justice, Switzerland’s highest court.10
The following part shall examine the various procedures through which claimants can present a complaint in the different countries which have ratified the European Code of Social Security.
1. Complaints procedures
Like in Switzerland, many of the other countries studied require claimants to first present a claim before the social security authorities before later challenging that same decision before the courts. This is the case in Italy,11 France,12 Spain,13 and the Netherlands,14 for example, all of which adopt this administrative review as a prerequisite for further judicial action.
The efficiency of this system (which obliges claimants to first address administrative bodies) has been questioned on the basis that it represents an unnecessary additional hurdle prior to appearance before a judge, perceived as the only truly impartial authority.15 However, the establishment of such a review system by the administrative authorities is a positive development. In fact, complaints at the administrative level entail less complex and less expensive proceedings for individuals. Moreover, by confronting the claims of their citizens, administrative authorities can improve their work and the quality of their services.
One of the main advantages of the administrative complaint procedure is related to its absence of costs. Indeed, bringing a complaint before the competent administrative body is free in most countries.16 This represents a key aspect of access to justice for individuals, even more so in the case of social security recipients, who are susceptible to encounter financial difficulties and not be able to afford judicial costs.
10 Article 62 LPGA.
11 Art. 442 para. 1 and Art. 443 of the Italian Code of Civil Procedure (Codice di Procedura Civile).
12 Art. R.142-1 ff of the French Code of Social Security (Code de la sécurité sociale).
13 Art. 71.1 and 139 of the Spanish Labour Procedural Law (LPL) (Ley reguladora de la jurisdicción social).
14 Art. 7:1 of the Dutch General Act on Administrative Law (Algemene wet bestuursrecht).
15 BELORGEY, p. 275.
16 See e.g. Art. 3 of the Belgian Charter for Social Security Beneficiaries; Art. 7:15 of the Dutch General Administrative Act (Algemene wet bestuursrecht).
16 BELORGEY, p. 275.; Art. 142-1ff of the French Social Security Code (Code de la sécurité sociale).
In some countries, a broader range of persons than the recipient alone can challenge a social security decision. In fact, in countries like France,17 Spain,18 and Germany,19 for example, some third parties (more specifically, the claimant’s close family members, such as spouses or children) can present a claim for social security benefits in the name of their spouse/parent entitled by the law to those benefits.
The establishment of administrative bodies competent to review the decisions of social security agencies reflects the willingness of states to avoid litigation.20 In fact, the nomination of administrative bodies as the competent authorities in the first place is a way for countries to establish a threshold limiting the number of claims presented before their courts in order to reduce their workload. Claimants are in fact encouraged to start court proceedings only as a last resort. Therefore, administrative complaint procedures represent what could be described as a method of alternative dispute resolution.
2. Authorities competent to hear complaints procedures
Individuals can present their claims before the administrative authorities competent to review the challenge in the countries examined in different ways.
Some countries, such as Belgium21 or Switzerland,22 only require that the review be conducted by the same administrative authority, which took the original decision. The authority shall hence retake its decision, either upholding or modifying the initial decision.
The German system, on the other hand, adopts what is called the “Abhilfgeprüfung”, according to which the original official (called “Ausgangsbehörde”) who took the contested decision is required to reconsider his or her decision before an official complaint is forwarded to a further authority (called the “Widerspruchsbehörde”).
Therefore, in Germany, if the original decision-maker (“Ausgangsbehörde”) decides to change his or her decision, no procedure will then be presented before the
“Widerspruchsbehörde.” However, if the “Ausgangsbehörde” chooses to uphold the decision which he or she took the first time around, then the
“Widerspruchsbehörde”23 will hear the complaint.
17 Art. R 142-20 of the French Social Security Code (Code de la sécurité sociale).
18 Art. 32 of the Legal Regime of Public Administrations and the Common Administrative Procedure (LRJPAC) (Ley de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común).
19 Sections 78 and 83 of the German Social Courts Act (Sozialgerichtsgesetz).
20 Lord Woolf, Access to Justice, Final Report, <http://www.dca.gov.uk/civil/final/overview.htm>.
21 Art. 3 of the Belgian Charter for Social Security Beneficiaries (Charte de l’Assuré Social).
22 Art. 34 ff. LPGA.
23 Art. 73 of the Administrative Procedure Code (Verwaltungsgerichtsordunung, VwGO).
Administrative reviews of this kind are questionable from the point of view of independence and impartiality of justice since the body which reconsiders the claim is always part of the same administrative authority that has taken the original decision, so there is no clear organisational independence. On the other hand, it is arguably worthwhile to give the original decision-making body, which is the first party concerned and the best informed of any, the opportunity to reconsider its original decision. An idea which might mitigate the perception of bias that the intervention of the original decision-maker can create would be to set up collegiate bodies competent to hear these administrative claims, and which would be notably composed of lay- members coming from spheres other than the original decision-making organisation, therefore guaranteeing a fully independent and neutral review of the law and facts.
Another way to reduce any criticism against the bias of the original decision-maker is to designate a hierarchically-superior authority to be in charge of claims. In Estonia, the complaint must be presented to the administrative authority which exercises supervisory control over the administrative authority which issued the decision in question.24 In some countries, this authority can even be an agency of the Ministry of Health or Social Affairs, as in Slovenia25 and Cyprus.26 The involvement of a ministerial authority may indeed be a good idea as it allows the Ministry to be directly informed of any potential misapplication of administrative rules and to intervene and exercise a closer control over the work of its agencies. Moreover, bringing a case before a hierarchically-superior agency is a guarantee of the neutrality of the competent officers as it has not reviewed the case before.
Finally, several countries have established specific boards of reviews, specialised in dealing with claims such as in Ireland,27 Luxembourg,28 and Norway.29 These boards generally follow specifically drawn-up procedural rules and operate similarly to courts or tribunals. By virtue of its order and clear structure, this system of organisation also represents a strong guarantee of independence from the original decision-maker.
24 Pursuant to Art. 73(1) of the Estonian Administrative Procedure Act (Haldusmenetluse seadus).
25 The Ministry of Labour, Family and Social Affairs is competent to review claims relating to parental care insurance benefits (Article 89 of the Social Security Act (Zakon o socialni varnosti) and unemployment benefits (Art. 1360(6) of the Slovenian General Administrative Procedure Act (Zakon o splosnem upravnem postopku).
26 Pursuant to Art. 83 of the Cyprian Social Insurance Act, the claim can be presented to the Minister of Labour and Social Insurance.
27 Part 10 of the Social Welfare Consolidation Act 2005.
28 Art. 1 of the Grand-Ducal Regulation of 24th December 1993 (Règlement grand-ducal du 24 décembre 1993 déterminant en application de l’article 294 du code des assurances sociales la procédure à suivre devant le conseil arbitral et le conseil supérieur des assurances sociales, ainsi que les délais et frais de justice).
29 See the Labour and Welfare Administration Act of 16th June 2006 which gives competence to the internal appeals offices of the labour and welfare authorities.
3. The processing of complaints procedures
Administrative processing typically begins when a claimant files an application. The deadlines to submit a claim depend on the kind of benefits at stake. Deadlines can run from 15 days (as in Cyprus30 and Slovenia31) to three months (as in the Netherlands32 and Portugal33).
The formalities necessary to submit a claim vary depending on the country but in general very little is expected of the claimant.34 This is part of the
“Klägerfreundlichkeit” (that is, “claimant friendliness” in German, meaning that as the weaker party, he or she benefits from a certain freedom of form when bringing a complaint). Paragraph 2(2) of the German Social Insurance Code (Sozialgesetzbuch, SGB) even provides that social security institutions must interpret the law in favour of the citizen.
If a claim is addressed to the wrong service, some legal orders provide that the claim shall not be rejected but shall instead be forwarded to the competent body, as in the Netherlands,35 or that the authority is required to correct the claimant, as in Sweden36 or in Slovenia.37 In Switzerland, the General Law on Social Insurance (LPGA) also follows this principle of “Klägerfreundlichkeit”. Here again, if a claim has been addressed to the wrong administrative agency, this authority has the obligation to forward any request that has reached them to the correct office.38
Usually, the claimant needs to fill in a form or write a letter stating basic information about himself and explaining the reasons for his or her claim. This is also a strong indicator of the willingness to render the application process as easy as possible for claimants. Several legislations, such as in the United Kingdom39 or in the Netherlands,40 recommend claimants to phone the social security agency before they submit their claims, so that they can discuss and receive further explanations into the
30 Art. 83 of the Social Insurance Act.
31 Art. 130(6) of the General Administrative Procedure Act (Zakon o splosnem upravnem postopku).
32 Art. 3:40 ff of the General Act on Administrative Law 1994 (Algemene wet bestuursrecht).
33 Art. 58 of the Procedural Code for Administrative Courts (Código de Processo nos Tribunais Administrativos).
34 In Ireland, for example, the relevant authorities are required to handle proceedings in an informal way (Art. 18(3) of the Social Welfare Regulations Act).
35 Art. 6:15 of the General Act on Administrative Law (Algemene wet bestuursrecht).
36 Section 4 of the Code of Administrative Justice.
37 Art. 67 of the General Administrative Procedure Act (Zakon o splosnem upravnem postopku ) (2006) provides that in case of incomplete applications the agency must grant three days to the applicant to correct his or her application.
38 Art. 30 LPGA.
39 For example, in the Employment and Support Allowance (Repeat Assessments and Pending Appeals Awards) (Amendment) Regulations 2015.
40 Art. 6.7 of the Dutch General Administrative Law Act (Algemene wet bestuursrecht).
reasons behind the decision which they disagree with. Steps taken to enable initial contact with agencies by telephone reflect the awareness of authorities about the problems that many claimants may encounter when confronted with the filing of administrative documents. This is notably a service that Swiss authorities might consider introducing.
In Italy,41 all complaints must be submitted online to the National Institute for Social Security. The use of the Internet is certainly a means to reduce application time and to facilitate the process for many social security recipients (especially for younger generations). However, this is also impractical for senior citizens who are not used to filling in forms online and for whom the compulsory registration of their complaint online may represent an obstacle and discourage them from taking further action.
After this primary overview of the administrative complaints systems applied in the European states that have ratified the European Code of Social Security, the second part of this contribution shall shift the focus onto the various actors that have been designated as competent to deal with social security claims.
Judicial proceedings before the courts
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.
Procedural Rights before the Courts
We shall now proceed to an analysis of the rights granted to the claimant before the courts in the systems where judicial review is available.
1. Application process and deadlines
Most countries subject to this study allow the claimants between four and six weeks to file their claim before the courts.77 Nevertheless, the deadlines can vary between 3 weeks (in Sweden78) to three years (for some benefits in Italy79). In Switzerland, the
74 Art. 146 of the Constitution of the Republic of Cyprus.
75 Section 320 of the Social Welfare Consolidation Act 2005.
76 Art. 311 of the Danish Public Administration Act (Forvaltningslov Lov), Act No. 571, 19 December 1985, according to which a party who wishes to go to court must pay the costs incurred by taking these legal steps.
77 Notably Germany, Luxembourg, the Netherlands, Norway, Slovenia, Spain, Switzerland, Turkey, and the United Kingdom.
78 Section 6a of the Administrative Court Procedure Act (Förvaltningsprocesslag).
79 Art. 465(1) of the Code of Civil Procedure (Codice di Procedura Civile).
claim must be presented to the competent court within 30 days from the notification of the administrative decision.80
Most countries offer the possibility for the claimant to explain his or her case during an oral hearing. In Luxembourg,81 for example, hearings are compulsory. The proceedings are generally not adversarial in nature and the hearings are often public, unless the claimant requests a private hearing or if special considerations require confidentiality. The public character of proceedings before judicial bodies maintains public confidence in the courts, as the European Court of Human Rights (ECHR) has noted on several occasions.82
In Switzerland, according to Article 61 LPGA, the parties may be called to hearings if required in the circumstances. In France, the question of access to oral hearings is often raised.83 Attending a hearing might entail substantial additional costs for the appellant who may live far away from the local first-instance court, which creates a problem as to the accessibility of the hearings. Moreover, in Schuler-Zgraggen v Switzerland,84 the ECHR considered that systematically holding hearings could be an obstacle to the “particular diligence required in social security cases”,85 ultimately preventing compliance with the reasonable time requirement of Article 6.1.86 The right to be heard in Switzerland includes the right to translation,87 that is, the right for the claimant, where his or her mother tongue is a national language of the Swiss Confederation, to obtain a decision in this language or to get a translation by an expert.
In Estonia, the legislator has also expressly provided claimants who do not fluently speak the national language used in the proceedings, the option of being assisted by an interpreter, but these expenses are to be assumed by the claimants.88
The right to be represented is also an essential guarantee for individual claimants to understand their legal rights and obligations. Indeed, they can feel helpless when faced
80 Arts. 56-61 LPGA.
81 Art. 13 of the Grand-Ducal regulation, December 24th 1993 (Règlement grand-ducal du 24 décembre 1993 déterminant en application de l’article 294 du code des assurances sociales la procédure à suivre devant le conseil arbitral et le conseil supérieur des assurances sociales, ainsi que les délais et frais de justice)
82 Axen v Germany, 8th December 1983, European Court of Human Rights, n°8273/78, para. 25;
Werner v Austria, 25th November 1997, European Court of Human Rights, n°21839/93, para. 45.
83 See notably SAYN, Accès au juge, p. 127.
84 Schuler Zgraggen v Switzerland, 24th June 1993, European Court of Human Rights, n°14518/89.
85 Ibid. para. 58.
86 As stated in Deumeland v Germany, 29th May 1986, European Court of Human Rights, n°9384/81, para. 90.
87 This stems from an interpretation of Article 42 LPGA by the Federal Administrative Tribunal in a decision taken on 31.03.2004.
88 In Estonia, for example, Art. 17(2) of the Administrative Procedure Act (Haldusmenetluse seadus) clearly states that the claimant shall pay for the expenses of the translator.
with complicated provisions and, without proper assistance, they may be unable to resolve the issues that arise.
Yet, in most countries, legal representation is not a prerequisite to appear before the courts.89 In any case, representatives of professional organizations and/or trade unions90 or even family members can represent or assist the claimant.91 Despite the relief and moral support a claimant can benefit from by having his or her relatives involved in judicial proceedings, one can wonder whether such permission is appropriate. Ideally, only qualified persons should be able to represent a claimant (whether these persons are lawyers or union representatives who have experience in the field). In Switzerland, according to Article 61 LPGA, the right to be assisted by a counsel must be guaranteed and, when necessary, claimants can obtain free legal counselling if it is justified by his or her personal situation.92
Due to the specific character of many social security cases, when proper procedure is followed, a decision should be reached more quickly than in ordinary civil cases. In Spain, for example, the law expressly provides that the judge shall render his or her decision within 5 days.93 However, despite this deadline, extended processing times are necessary for courts to take their final decisions, in Spain as in other jurisdictions.94 In Switzerland, the courts are not bound to render a decision within a specific deadline.
Nevertheless, the Federal Administrative Court has ruled that an adequate timeframe should be respected by the authorities.95
In a number of cases, the European Court of Human Rights has insisted on the necessity for courts to render their decisions in a timely manner.96 Throughout Europe
89 In the Czech Republic, Art. 35(2) of the Administrative Code provides that the claimant “may be represented by a counsel”. The use of the word “may” clearly indicates that legal assistance is not compulsory. The same goes in Art. 13(1) of the Estonian Administrative Procedure Act (Haldusmenetluse seadus) or Section 12 of the Norwegian Public Administration Act.
90 Such right is enshrined. for example, in the legislation of Germany (Art. 13(6) of Book 10 of the Social Code (SozialGesetzbuch) and Article 73(2) of the Social Courts Act (Sozialgerichtsgesetz)), Italy (Art. 469(1) of the Code of Civil Procedure), and Spain (Art. 20(1) of Law No. 36/2011 regulating the jurisdiction of social matters (Ley reguladora de la jurisdicciòn social)).
91 See e.g. Section 12 of the Norwegian Public Administration Act of 10 February 1967, Rule 11 of the Tribunal Proceedings (First-tier Tribunal) (Social Entitlement Chamber) Rules in the United-Kingdom.
92 Art. 37 para. 4 LPGA.
93 Pursuant to Art. 97 para. 1 of Law No. 36/2011 regulating the jurisdiction of social matters (Ley 36/2011, de 10 de octubre, reguladora de la jurisdicción social).
94 For Spain, consult <http://www.citapreviainem.es/retrasos-juzgados-social-trabajador>.
95 In a decision handed down by the Administrative Federal Tribunal on 04.04.1986, 14 months were deemed to be a reasonable period of time in which to render a decision (RAMA Jurisprudence de l’office fédéral de la santé publique K 690 para. 3, p.391).
96 E.g. Deumeland v Germany, 29th May 1986, European Court of Human Rights, n°9384/81, para.
90; Salesi v Italy, 26th February 1993, European Court of Human Rights, n°13023/87, para. 24;
Burdoc v Russia, 2nd May 2002, European Court of Human Rights, n°59798/00, para. 122.
there are problems relating to delays in proceedings, due to the heavy workload of courts and the shortage of specialised lawyers competent to deal with social security cases.97 Comparing the lengths of proceedings across Europe is a difficult task since not all states publish information to this effect.
2. Costs of proceedings
Excessive court fees can represent a substantial obstacle to individuals’ access to justice. Nevertheless, most of the countries studied have limited the costs related to social security claims. Most States bear the costs of proceedings, as in the Czech Republic,98 France,99 Germany,100 Luxembourg,101 Romania,102 and Switzerland.103 When claimants have to pay for proceedings, the sum is generally low, as in the Netherlands,104 and appellants remain able to request an exemption, granted on a means-test basis.
The granting of legal aid is often means-tested. Some jurisdictions also offer free legal advice, which may either be offered to all litigants or on a means-test basis. In Germany, lawyers or court staff can provide legal advice (Beratungshilfe).105 In France, some agencies have established free legal consultations open to all.106
3. Reasoned decision-making and notification
The European Court of Human Rights has consistently stated that “judgments of courts and tribunals should adequately state the reasons on which they are based.”107
97 TULKENS, p. 5.
98 Art. 52(2) of the Code of Administrative Justice.
99 Art. 700 of the Code of Civil Procedure (Code de procedure civile).
100 Para. 183 of the Social Courts Act (Sozialgerichtsgesetz).
101 Art. 44 of the Grand-Ducal Regulation of December 24th 1993 (Règlement grand-ducal du 24 décembre 1993 déterminant en application de l’article 294 du code des assurances sociales la procédure à suivre devant le conseil arbitral et le conseil supérieur des assurances sociales, ainsi que les délais et frais de justice)
102 Art. 48 of Law No. 47/2006 on the national system of social assistance and Art. 159 of Law No.
19/2000 on the public pensions system and on other social insurance rights.
103 According to Art. 61 LPGA, proceedings shall be free of charge for the parties. However, for appeals before the Federal Tribunal, court fees range between CHF 200 and CHF 1,000.
104 In the Netherlands, under Article 8:41 of the Dutch General Act on Administrative Law (Algemene wet bestuursrecht), court fees amount to 41 euros.
105 Law of 14th September 1994.
106 Art. 54 of the Law of 10th July 1991.
107 Hirvisaari v Finland, 27th September 2001, European Court of Human Rights, n°49 684/99, para.
30.
The extent to which this obligation applies, however, may vary according to the nature of the decision. Article 6.1 of the European Convention on Human Rights does not require a detailed answer to every argument and, in dismissing an appeal, an appellate court can, in theory, simply endorse the reasons given by the lower court in its decision.
Parties become aware of the decision taken upon its notification. As Bentham puts it:
“Publicity is the very soul of justice.”108 Notification is compulsory in most countries and a deadline is generally imposed upon the court or tribunal in question to notify the appellant of the decision. Article 8:79 of the Dutch General Administrative Code and Article R 143-14 of the French Code of Social Security, for example, provide the courts with two weeks in which to notify the parties of their decision. In Switzerland, Article 61 LPGA provides that judgments should be notified in writing and contain the reasons behind the decision as well as the remedies available in response to it and the names of the members of the court responsible for making the judgment.
In many countries, judges cannot grant more than what the parties have claimed. This is particularly apparent in France.109 Here, the French judge is barred from acting
“ultra petita” and granting more than what has been asked for.110 In Germany, for social security matters, the judge has more flexibility, as he can suggest that the appellant change his or her claim.111
In Belgium, a specialized prosecutor, “l’auditeur du travail”, is able to advise the appellant and rectify his or her claim, in case the claim presented does not present the sufficient arguments that could allow the claim to be successful.112 The active role which the “auditeur du travail” plays shows willingness to restore a certain balance between the parties, who find themselves in an inequality of arms. This intervention can have very positive effects, as it does in Belgium, where the public prosecutor can reshape the subject of the dispute and help the disadvantaged party, the individual appellant, to better defend his or her interests.
Conclusion
Given the current backdrop in which governments are increasingly strengthening the conditions required to access social security benefits,113
108 In Scott v Scott (1913) AC 417, para. 447.
109 MOTULSKY, p. 197.
110 Cass. Soc. 2 October 1985, Bull. Civ. V, n° 434.
111 Article 106 of the German Social Code (Sozialgesetzbuch) and Article 86 para. 3 of the German Administrative Code of Procedure (Verwaltungsverfahrensgesetz).
112 Art. 764 para. 2 of the Belgian Judicial Code; VAN LANGENDONCK, p. 183-186.
113 ESCANDE VARNIOL/ LAULOM/ MAZUYR, p. 20-25
criminalising social security offences,114 and where e-government is beginning to emerge,115 establishing strong procedural guarantees to defend individuals’ rights to social benefits has become paramount. In this vein, several international instruments ratified by Switzerland, in addition to the European Code of Social Security, have expressly recognised that individuals should have the right to complain against social security decisions.116
In 2003, the Committee of Ministers of the Council of Europe issued a recommendation117 on improving access to social rights, in which the Committee acknowledged that the existence of strong social protection frameworks was not sufficient if strong procedural guarantees were not also established allowing individuals to claim their rights. The annex of the recommendation notably insisted on the importance of putting in place “accessible and transparent redress and appeal systems, including cost-free procedures for persons of modest means”.
As we have seen, despite the lack of detail provided by Article 69 ECSS as to how the right to complain and appeal should be implemented in the various contracting states to the European Code of Social Security, the various models present some similarities.
For example, when going before the court, applicants must first freely register their opposition to the decision before the social security administrative authorities.118 Following this, different kinds of court or tribunal can have jurisdiction to hear judicial claims and practices facilitating the proceedings for the claimant can vary from one country to the next. Comparing the procedural rights granted to individual claimants can be greatly beneficial when assessing the performance of the Swiss model, which presents its own peculiarities in large part due to its judicial organisation at the cantonal level.
One foreign practice that could notably be of interest and considered by Switzerland is the potential for close relatives (such as the spouse or the child of the benefits recipient) to take action on behalf of the rights-holder and hereby bring proceedings
114 LARKIN, p. 295-300; SAOUT, p. 523.
115 ROBBEN, p. 67-72.
116 See in particular Art. 70 of the ILO Social Security (Minimum Standards) Convention (No.102), 1952 and Art. 34 of the Invalidity, old-age and survivors’ benefits Convention (No. 128) 1967.
117 Recommendation on improving access to social rights.
118 As mentioned earlier, see e.g. Art. 3 of the Belgian Charter for Social Security Beneficiaries (Charte de l’Assuré Social); Art. 7:15 of the Dutch General Administrative Act (Algemene wet bestuursrecht) ; Art. 142-1 ff of the French Social Security Code (Code de la sécurité sociale).
on the basis of being directly affected by the decision relating to the recipient’s social security benefits, as is already the case in France,119 Spain,120 and Germany.121 Moreover, the introduction of an institution akin to the “auditeur du travail” in Belgium122 that is, a specialised prosecutor advising on behalf of the interests of the claimant in respect of his or her individual claim, could be of great assistance to claimants if it came to be implemented in Switzerland as well, helping to reduce the inequality of arms that exists between the individual claimant and the social security authorities.
To conclude, comparative law can be useful at the national and international levels, including in the case of Switzerland, to develop ideas on ways to improve national rules and practice. Comparative law is at the core of the work of international organisations123 when developing harmonising international standards. The importance of comparative law in today’s globalized world cannot be understated, as it represents an exercise by which all countries necessarily learn from one another and improve their national legal orders.124
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