Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

Article 4 of the Convention. The Committee takes note of the XVII-1 Conclusions concerning the application by Denmark of Article 12(4) of the European Social Charter made by the European Committee of Social Rights (ECSR) in April 2004, which read as follows: "The report confirms in a general manner that pursuant to the applicable legislation entitlement to social security benefits is subject to the recipient having a permanent address and lawful residence in Denmark, unless otherwise provided by bilateral or multilateral conventions on social security or pursuant to Community Regulation 1408/71. Although the report does not specifically reply to the question concerning invalidity allowances and occupational accident and disease benefits, the Committee can only assume that such accrued benefits are not retained where a person moves to a Contracting Party not bound by Community regulations or agreements with Denmark. It therefore considers that the situation is not in conformity with the Charter."

The Committee wishes to recall in this respect that, in accordance with Article 4. paragraph 1, of the Convention, equality of treatment as regards the grant of benefits shall be accorded without any condition of residence. It would therefore like the Government to indicate whether the reference in the legislation to multinational conventions on social security, which could override the condition of having a permanent address and lawful residence in Denmark, is interpreted as also covering Convention No. 118 and, if so, whether the benefits under accepted branches of social security are granted on conditions of global reciprocity, on the same terms as to Danish nationals, to nationals ceasing to reside in Denmark of any State which has ratified the Convention, but which is not bound by Community regulations or corresponding bilateral agreement with Denmark.

As regards more particularly branch (h) - unemployment benefit - accepted by Denmark, the Committee draws the attention of the Government to the fact that, in accordance with Article 4(2)(a) of the Convention, the grant of unemployment benefits, including any supplements or increments, referred to in Article 2, paragraph 6(a), may be made subject to the condition that the beneficiary has resided on the Danish territory six months immediately preceding the filing of a claim. However, to avail itself of this permissive clause, as well as the similar clause included in Article 5(2), the Government has to communicate to the ILO a statement indicating which benefits it considers to be "benefits other than those the grant of which depends either on direct financial participation by the persons protected or their employer, or on a qualifying period of occupational activity".

Articles 7 and 8. The Committee further notes that the European Committee of Social Rights concluded that the situation in Denmark was not in conformity with Article 12(4) of the European Social Charter because "Danish legislation does not provide for the aggregation of insurance or employment periods completed by the nationals of Contracting Parties not covered by Community regulations or bound by agreement with Denmark". The Committee recalls in this respect that under Article 7 of the Convention, States parties to the Convention shall endeavour to participate in schemes for the maintenance of the acquired rights and rights in course of acquisition under their legislation of the nationals of other ratifying States with a view to providing, in particular, for the totalization of periods of insurance, employment or residence for the purpose of the acquisition, maintenance or recovery of rights and for the calculation of benefits. Taking into account that Denmark has not ratified neither the Maintenance of Migrants’ Pension Rights Convention, 1935 (No. 48), nor the Maintenance of Social Security Rights Convention, 1982 (No. 157), effect to the above obligation may be given, as stipulated in Article 8 of the Convention, by the conclusion of multilateral or bilateral agreements to this end with other ratifying States. The Committee notes, from the abovementioned conclusions of the ECSR, that Denmark has concluded bilateral agreements with 13 countries, of which only three -Turkey, Pakistan and Israel - are parties to Convention No. 118 ratified by another 34 countries. Seven of these are bound, as Denmark, by the Community regulations and one - Finland - by the Nordic Social Security Convention. The Committee asks the Government to indicate in its next report the measures taken or contemplated to promote mutual agreements for the maintenance of the acquired rights and rights in the course of acquisition with those of the remaining 26 Members to the Convention which have accepted its obligations for the same branches of social security as Denmark and with which Denmark has a noticeable migration flow. The Committee would like the Government to provide statistical information on the number of migrant workers in Denmark coming from countries that have ratified the Convention but do not have existing bi- or multilateral agreements with Denmark.