Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Equality of Treatment (Social Security) Convention, 1962 (No. 118) - Denmark (Ratification: 1969)

Article 4 of the Convention. Residence conditions. Referring to the issues raised in its previous comments, the Committee notes the indication provided by the Government, in its report received in December 2011, that the bilateral social security agreements concluded by Denmark and the Community Regulation No. 1408/71 (and since 1 May 2010 Regulation (EC) No. 883/2004 on the coordination of social security systems) contain provisions applicable to certain of the branches of social security for which the obligations of the Convention have been accepted. In particular, EU law overrides the permanent and lawful residence condition imposed by Danish law for the nationals of the countries concerned who work in Denmark and reside in the European Union, the European Economic Area or Switzerland. As regards medical care, the previously applicable qualifying period of six weeks was repealed as from the entering into force of the Health Act on 1 January 2007. Nationals of countries with which Denmark has concluded bilateral social security agreements benefit from equal treatment with Danish citizens, subject to taking up residence in Denmark. Although there are no residence requirements that condition the granting of employment injury benefits, in practice recognition usually presupposes residence or stay in Denmark. As regards sickness benefits, it is required that the employee stays legally in Denmark.

The Committee notes that nationals of the European Union and the European Economic Area and Switzerland who work in Denmark and reside in another EU/EEA country or Switzerland are thus entitled to receive medical care irrespective of residence conditions, in accordance with the requirements established by this provision of the Convention. The Committee would like the Government to indicate in its next report whether the nationals of countries composing the above regional entities enjoy the same rights in respect of the other branches of social security accepted by Denmark under the Convention (sickness, unemployment and employment injury benefits).

The Committee notes that third country nationals, whether or not their country of origin has concluded a bilateral social security agreement with Denmark, only benefit from equal treatment with Danish nationals subject to the condition of having their residence in Denmark and having registered in the civil register (CPR, Folkeregisteret) for which they must have legally stayed in Denmark for at least three months. It also notes that Denmark has opted out from EU Council Regulation No. 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No. 1408/71 and Regulation (EEC) No. 574/72 to nationals of third countries with a view to guaranteeing the principle of equal treatment for third party nationals in matters of social security.

The Committee wishes to recall in this respect that, in accordance with the principle established by Article 4(1) equality of treatment as regards the granting of benefits shall be accorded without any condition of residence. Residence conditions may only be imposed in the case of nationals of any other ratifying Member that has legislation making the granting of benefits conditional on residence on its territory. Furthermore, while the granting of non-contributory benefits could be submitted to a certain duration of residence in accordance with Article 4(2), the Convention is explicit that no such condition may be imposed in respect of medical care, sickness benefit, employment injury benefit and family benefit. The branches accepted by Denmark under Convention No. 118 include the following: medical care, sickness benefit, employment injury benefit and unemployment benefit. Consequently, Danish law is not in conformity with the Convention because it is based on the premise that foreigners must, in order to be entitled to social security benefits, be legally resident in Denmark. The Committee therefore asks the Government to consider amending the national legislation with a view to eliminating the residency condition for nationals of countries party to the Convention who work in Denmark and reside abroad.

Articles 7 and 8. Retention of acquired rights and rights in course of acquisition. In its previous report, the Government indicated that there is no significant flow of migrants with the 26 countries party to the Convention that are not EU/EEA countries and therefore sees no real reason to conclude bilateral agreements with them given that no cases have been recorded of workers from one of the States parties to the Convention having lost the right to compensation for an occupational disease as a result of this. The Committee notes that, according to the statistical information provided by the Government in its 2011 report, nearly half of the 125,000 foreigners employed in Denmark in 2010 were citizens of non-EU/EEA countries or Switzerland. The statistical information provided does however only disaggregate these workers by region and occupation and not by nationality. The Committee therefore requests the Government to supply with its next report the statistical information requested in the report form, disaggregated by nationality.

The Committee recalls in this respect that under Article 7 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 provide, 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. It also notes that in 2009, the European Committee of Social Rights decided 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 retention of accrued and accruing benefits when persons move to a State party not bound by Community regulations or by agreement with Denmark, as well as for the accumulation of insurance or employment periods completed by the national of such States parties. The Committee invites the Government to provide further information in this regard.