Social Security (Minimum Standards) Convention, 1952 (No. 102) - Spain (Ratification: 1988)

Direct Request (CEACR) - adopted 2024, published 113rd ILC session (2025)

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on social security, the Committee considers it appropriate to examine Conventions Nos 12 (workers’ compensation, agriculture), 44 (unemployment benefit) and 102 (social security, minimum standards) together.

The Committee notes the report provided by the Government in relation to the Conventions indicated above, including the replies to the observations made by the Trade Union Confederation of Workers’ Commissions (CCOO), the General Union of Workers (UGT), the Spanish Confederation of Employers’ Organizations (CEOE) and the Spanish Confederation of Small and Medium-Sized Enterprises (CEPYME), transmitted with the report.

The Committee finally notes the large volume and significance of the legislative measures adopted since the last reports on the subject.

Article 1 of Convention No. 12. Extension of coverage to agricultural workers. The Committee notes the information provided by the Government concerning the transitional period for the adaptation of the contributions of the Special Agricultural Scheme (REA) to the General Social Security Scheme (RGSS), with the establishment of a series of contribution incentives to promote stability of employment and longer contracts. The Committee also notes that, in accordance with section 256 of the Revised Text of the General Social Security Act (LGSS), adopted by Royal Legislative Decree No. 8/2015, of 3 October, workers included in the Special System for Own Account Agricultural Workers (SETA) will be entitled to social security benefits under the terms and in accordance with the conditions set out in the RGSS, and that the contribution base has been the same since 2016, so that the incentives offered do not result in a decrease in benefits. The Committee notes the statistical data provided by the Government on the activities of the inspection services in relation to employment accidents in the agricultural sector, including the supplements imposed due to the absence of occupational risk prevention measures.

With reference to the observations of the CCOO in relation to problems in the event of employment accidents occurring before workers are registered, the Committee notes the Government’s indication in its reply that, in accordance with section 254 of the LGSS, the possibility of applying for the registration of the worker up to 12 hours from the first day of work is an exceptional measure envisaged for occasional or regular but discontinuous workers when it has not be possible to formalize their registration beforehand. Moreover, the Committee observes that, according to paragraph 4 of section 166 of the LGSS, workers will be considered as registered for the purposes of work accidents even if their employer has failed to meet their obligations in this matter.

In relation to the observations of the CEOE/CEPYME on the need for the inspection services to provide assistance and information before taking coercive action, through collaboration with the social partners, the Committee notes the Government’s indication in response that section 12 of Act No. 23/2015, of 21 July, on the organization of the labour inspection services, provides that the function of inspection is to provide information and technical assistance to enterprises during the discharge of inspection functions, especially to small and medium-sized enterprises, with a view to facilitating improved compliance with social and labour provisions. Finally, the Committee notes that, according to the Government’s reply, collaboration with the social partners occurs through the General Labour Inspection Council, the body responsible for general action plans and programmes, the members of which include representatives of the most representative employers’ organizations and trade unions.

Articles 9 and 10 of Convention No. 44. Social collaboration work. The Committee notes with interest that, as a result of the amendment introduced by the second final provision of Royal Decree No. 2/2024, of 21 May, refusal to participate in social collaboration work (trabajos de colaboración social) is no longer a serious infringement, and unemployment benefit is not therefore suspended for this reason.

Article 10(2) of Convention No. 102 (Part II, Medical Care). Cost-sharing for pharmaceutical supplies. The Committee notes that, according to the information provided by the Government, section 102 of Royal Legislative Decree No. 1/2015, of 24 July, approving the revised text of the Act on guarantees and the rational use of medicaments and medical products, provides for a ceiling in their provision related to the income of the beneficiary for the purpose of ensuring the continuity of treatment for chronic conditions and a high level of equity for patients who are pensioners receiving long-term treatment. In this regard, the Committee notes that the maximum monthly supply is set at €8.23 for insured persons with income below €18,000.

With reference to the UGT’s observations on the health protection of foreign nationals who are not registered or authorized to reside in Spain, the Committee notes that, according to the Government’s reply, Legislative Decree No. 7/2018, of 27 July, amended Act No. 13/2003, of 28 May, on the cohesion and quality of the National Health System to guarantee the right to health protection and medical care for foreign nationals who are not registered or authorized to reside in Spain under the same conditions as persons of Spanish nationality, with the sole exception that their rights do not follow them when they travel abroad, for which reason they are not issued with the European Health Card. The Committee observes that, in accordance with section 102(5)(e), foreign nationals who are in this situation have to pay 40 per cent of the retail price of medicaments, which is the same percentage applicable in general to active insured persons with incomes below €18,000.

Article 33 of Convention No. 102 (Part VI, Unemployment Injury Benefit). Extension of coverage. The Committee notes the Government’s reference to the publication of Act No. 6/2017, of 24 October, which introduces the legal concept of commuting accident (in itinere) for the Special Scheme for Self-employed Workers (RETA), and Royal Legislative Decree No. 28/2018, of 28 December, which increases protection under the RETA through the inclusion as compulsory contingencies of those that were of a voluntary nature prior to 1 January 2019, such as protection against termination of the activity and professional contingencies. In its previous comment, the Committee noted with interest the measures adopted in 2011 to extend the coverage and protection of certain categories of workers in respect of risks occurring during the performance of work. In this context, the Committee reiterates its request to the Government to provide statistical information in its next report on the increase in the number of workers protected against employment risks, and the total value of the benefits provided.

Part XIII of Convention No. 102 (Common Provisions). Organization and administration of social security. The Committee notes the information indicated by the Government concerning the various administrative coordination agreements concluded by the labour inspection services and the various social security administrative bodies on the formulation of an Annual Objectives Plan to combat fraud and facilitate the access of labour inspection officials to the databases of collaborating bodies and institutions. The Committee also notes the coordination that exists with the State Tax Administration Agency and the State security forces and institutions to combat fraud. Finally, the Committee notes the statistical data provided on all inspections, violations, the amounts of penalties and workers affected, with emphasis on the impact of the “Tool to Combat Fraud” and the results of the Shock Plan to combat fraud in the recruitment of part-time workers and domestic workers.

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the Government’s report. It also notes the observations of the General Union of Workers (UGT), of 22 August 2016, and of the Trade Union Confederation of Workers Commissions (CCOO), of 31 August 2016. It further notes the Government’s replies to these observations, received on 26 October 2016.

The Committee notes the large volume and significance of the legislative measures adopted since the last report.

Part II (Medical care). Article 10(2) of the Convention. Cost-sharing for pharmaceutical supplies. With regard to medical care, the Committee notes the report received, and particularly: Royal Legislative Decree No. 16/2012, of 20 April, adopting urgent measures to guarantee a sustainable national health system and to improve the quality and security of care; Act No. 33/2011, of 4 October, on the general public health system; Royal Decree No. 1192/2012, of 3 August, regulating the status of insured persons and beneficiaries for the purposes of the provision of health care in Spain through public funds under the National Health System; and Royal Legislative Decree No. 1/2015, of 24 July, issuing the amended text of the Act on the guarantee and rational use of medicaments and health products, which exempts certain categories benefiting from special protection from cost sharing by users and dependants for the provision of outpatient pharmaceutical supplies.

The Committee notes the UGT’s observations indicating that Royal Legislative Decree No. 16/2012 has had a negative impact on the current system of cost sharing for pharmaceutical supplies, and is unsuited to situations of special needs related to persons in a chronic condition or with multiple pathologies. It also notes the observations of the CCOO indicating that any system of cost sharing has to be examined from the viewpoint of its incidence on the capacity to pay of those affected, and its redistributive effects, as the present system is not well adapted to certain income brackets, and particularly the efforts required from those on the lowest incomes.

In its reply, the Government indicates that, since the introduction of the “electronic medical prescription” of the National Health System in the various Autonomous Communities, the provision of pharmaceutical supplies has been monitored, as a result of which there are no cases of pensioners and their dependants paying costs over the limits established on the basis of their income for treatments for chronic conditions and that, in accordance with section 106(2) of Royal Legislative Decree No. 1/2015, the income levels of users are taken into account in order to ensure the continuity of treatments for chronic conditions and to guarantee a high level of equity for pensioners on long-term courses of treatment, with the general percentages being subject to ceilings in terms of cost sharing.

The Committee encourages the Government to provide statistical data with a view to confirming, particularly in the case of chronic conditions and multiple pathologies, that the systems of cost sharing for medical care do not result in excessive hardship, in accordance with Article 10(2) of the Convention, for the family of the standard beneficiary whose earnings do not exceed those of an ordinary adult male labourer calculated in accordance with Article 66 of the Convention.

Part VI. Employment injury benefit. Article 33. Extension of coverage. The Committee notes with interest the legislative measures adopted since the last report in 2011, which illustrate the Government’s systematic action to extend the coverage and protection of specific categories of workers in respect of social security coverage of the risks occurring in relation to work. These include:

• -Act No. 27/2011, of 1 August, updating, adapting and modernizing the social security system, extending coverage and, with effect from 1 January 2013, generalizing protection against employment injury as a compulsory component of all schemes within the social security system;
• -Act No. 28/2011, of 22 September, integrating the Special Agricultural Social Security Scheme into the General Social Security Scheme (RGSS) and creating the Special System for Agricultural Workers within the RGSS, as well as Act No. 35/2011, of 4 October, on the shared ownership of agricultural undertakings, with a view to achieving genuine equity between women and men in agricultural undertakings;
• -Royal Decree No. 1541/2011, of 31 October, issued under Act No. 32/2010, of 5 August, establishing a specific protection scheme for the termination of the professional activities of self-employed workers;
• -Royal Decree No. 1596/2011, of 4 November, extending under the same terms and conditions as under the RGSS (with the exception of unemployment) the protective measures for the employment risks of workers covered by the Special Scheme for Household Employees.

The Committee requests the Government to provide statistical data in its next report to demonstrate that these legislative measures have resulted in an increase in the number of workers protected against employment risks, both through compulsory and voluntary coverage, and an increase in the total value of the benefits paid.

Part XIII. Common provisions. Organization and administration of social security. The Committee notes with interest Act No. 13/2012, of 26 December, to combat unlawful employment and social security fraud, and Basic Act. No. 7/2012, of 27 December, amending Basic Act No. 10/1995, of 23 November, issuing the Penal Code, respecting transparency and action to combat tax and social security fraud, and in general all measures covered by the plan to combat illegal employment and social security fraud. With reference to measures for the implementation of the legislation in practice, the Committee notes Act No. 23/2015, of 21 July, structuring the labour and social security inspection system, and its activities in the field of social security, including social security registration, coverage and contributions.

Taking into account the value of the experience acquired by Spain in developing a comprehensive labour inspection system covering all labour fields, including social security, the Committee requests the Government to indicate in its next report the working methods of the inspection services which have been found to be most effective, and their impact on the reduction of illegal employment and social security fraud, and accordingly on the contributions made to the social security system.

The Committee wishes to emphasize that, in accordance with Article 69(d), (e) and (f) of the Convention, the comprehensive plan to combat illegal employment and social security fraud, as well as the use of information technology to combat fraud in the social security system, are innovative methods which contribute to strengthening the social security system, improving conditions of work and achieving fairer competition between enterprises. It therefore requests the Government to provide data in its next report on the manner in which such measures have contributed to improving the financial system of the social security scheme, especially from the viewpoint of the financial resources of the system and the benefits provided.

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

The Committee notes the Government’s report received in October 2011, as well as the annual reports on the application of the European Code of Social Security for the period 2007 to 2012, containing replies to its previous direct request.

Part II (Medical care) of the Convention. The Committee notes that the report fails to include information on this part of the Convention. According to the 17th Report on the European Code, Royal Legislative Decree No. 16/2012 of 20 April, adopting urgent measures to guarantee a sustainable national health system and to improve the quality and security of benefits, introduces important changes in relation to the individual and material coverage of medical care. The measures adopted are intended to carry out a structural reform of the national health system to ensure its solvency and viability, and to remedy the unsustainable deficit in public health expenditure. In this context, the Royal Legislative Decree establishes common standards for health insurance throughout the national territory; specifies common health services throughout the State, with three different levels (basic, supplementary and accessory services), which differ from the supplementary services of the autonomous communities; and modifies the provision of pharmaceutical and sanitary products and increases the share by beneficiaries in the cost of outpatient pharmaceutical care. While noting that the Royal Legislative Decree is intended to maintain the guarantee to citizens of public, free and universal health assistance, the Committee requests the Government to ensure, by means of a comparative analysis, that the minimum benefits guaranteed by Part II of the Convention remain in place.

Part XIII (Common provisions). Organization and administration of social security. The 17th Report on the European Code notes the adoption of Act No. 27/2011 of 1 August 2011 updating, adapting and modernizing the social security system, which modifies the structure of the national social security system with a view to ensuring both the broadest possible coverage of protection and stable and solid financing to guarantee adequate social benefits for future generations. With regard to the management of the system, the Act authorizes the Government to create the State Social Security Administration Agency, which will integrate the National Social Security Institute, the General Social Security Treasury, the Marine Social Institute and the Social Security Information Technology Administration. Royal Decree No. 1823/2011 of 21 December 2011 also reforms the current ministerial structure. The Ministry of Labour and Immigration becomes the Ministry of Employment and Social Security, and it establishes the following higher bodies: the Secretariat of State for Employment and the Secretariat of State for Social Security.

The Committee hopes that the Government will be in a position to provide detailed information in its next report on the new structure of the social security system, with an indication of the new distribution of responsibilities for the administration of the various branches covered by the Convention. The Committee also asks the Government to explain the institutional channels and practical machinery to ensure effective coordination between the employment and social security policies and, respectively, between the two Secretariats responsible for these fields within the new Ministry of Employment and Social Security. The Committee observes from experience that, even where responsibility for these two objectives is the competence of a single ministry, social security and employment promotion are not always coordinated and that, in certain European countries, anti-crisis measures for the recovery of the labour market often only include measures to make labour legislation more flexible, but do not cover the corresponding social security measures to ensure adequate protection for the new flexible forms of employment.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the information supplied by the Government in its report on the Convention, as well as in its report on the European Code of Social Security (ECSS).

1. Part VI (Employment injury benefit). Article 36 of the Convention. With reference to its previous conclusions, the Committee recalls that the concept of permanent incapacity is set out in section 137 of the General Social Security Act (LGSS). Section 137, subsection 3, provides that permanent partial incapacity arises when there is a decrease of at least 33 per cent in the worker’s normal capacity for work in his usual occupation, without preventing the worker from discharging fundamental activities. In such a case, workers are entitled to a benefit in cash consisting of a lump sum that is fully compatible with their maintenance in the job that they were discharging, in view of the fact that they retain sufficient capacity to perform the fundamental activities of the occupation that they carried on. In view of the fact that the employer is obliged to maintain the worker in his job, even though his performance is below the standard, the Government considers its legislation to be in line with Article 36(3)(a) of the Convention, which permits the conversion of a pension into a lump sum where the degree of incapacity is slight.

Taking into account that section 8 of Act No. 24/1997 of 15 July 1997 replaced the definitions of the various categories of invalidity, by specifying that qualification for the various degrees of permanent incapacity shall be determined by regulations on the basis of the percentage of the reduction of capacity for work, the Committee requested the Government to indicate the degrees of partial incapacity prescribed by the new regulations and the provisions obliging employers to maintain an incapacitated employee in her or his previous job or another job where the degree of the employee’s incapacity for work in his usual occupation is not slight. In its 2006 report on the application of the ECSS, the Government indicates the types of incapacity due to industrial accidents or occupational illness that may entitle people to benefits. The Committee notes this information. It would like the Government to be requested to provide examples of cases in which a worker: (a) is impaired by not less that 33 per cent while being able to carry out his/her basic tasks; and (b) is unable to carry out some or all of his/her basic tasks while being able to engage in a different profession.

2. Part XI (Calculation of benefits). The Committee noted in its previous conclusions that, in the Spanish social security system, the maximum and minimum limits are prescribed for the rate of the benefits as well as for the earnings taken into account for the calculation of benefits. Thus, it requested the Government to use in its next report the methodology of Article 65 of the Convention when assessing the level of the benefits in the schemes prescribing maximum limits for the rate of the benefit or the earnings taken into account for its calculation, and the methodology of Article 66 in assessing the level of the minimum amounts of different types of pensions and benefits guaranteed by the legislation. The Government indicated in its 2006 report on the application of the  ECSS that, according to Act No. 30/2005 (27 December 2005) of the General Budget for 2006 (BOE of 30 December 2005), the maximum threshold for social security pensions amounts to 31,255.56 euros in 2006 as an annual calculation. The Committee notes with interest that, accordingly, the Government based all pension calculations on the methodology of Article 65 of the Convention. As regards to short-term benefits, the Committee notes the maximum limit prescribed for the earnings taken into account for the calculation of sickness and temporary incapacity benefit, unemployment benefit and maternity benefit. Accordingly, the Government based its benefit calculations, apart from the calculation of benefit under Part IV of the Convention, also on the methodology of Article 65. In this respect, it would like the Government to be requested to use in its next report the methodology of Article 65 also for the calculation of the unemployment benefit under Part IV of the Code.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the detailed information provided by the Government in its report. It notes, in particular, the Government’s response to its previous comments on the application of Part III (Sickness benefit), Article 18, in conjunction with Part XIII (Common provisions), Articles 71, paragraph 3, and 72, paragraph 2; as well as Part VI (Employment injury benefits), Article 34, paragraph 2, and Article 36, paragraph 1, in conjunction with Part XIII (Common provisions), Articles 71, paragraph 3, and 72, paragraph 2, of the Convention.

The Committee is raising a number of other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

1. Article 36 of the Convention. (a) In its previous comments, the Committee asked the Government to provide more information about the application in practice of the provisions of the General Social Security Act (LGSS) concerning total or partial permanent incapacity for work. In its reply the Government points out that recognition of partial or total incapacity does not imply, in the terms of the law, a reduction of 50 per cent in the worker’s usual working day. The Government recalls that the concept of permanent incapacity is defined in section 137 of the LGSS, subsection 3 of which treats as partial any incapacity which causes a reduction of at least 33 per cent in the worker’s normal capacity to work in his or her usual occupation but does not prevent performance of the basic tasks. In such cases, workers are entitled to a cash benefit consisting of an amount of capital fully compatible with maintaining the workers in their jobs, since they retain sufficient capacity to carry out the fundamental tasks of the occupation they hold. In the event of total incapacity the worker is entitled to a benefit in the form of periodical payments; according to section 137(4) of the above Act, total incapacity means incapacity to perform all the tasks or the basic tasks involved in the usual occupation, but this does not imply that the worker cannot perform some other work in or outside the enterprise, whatever the length of the working day.

The Committee notes this information. It asks the Government to provide additional details of the manner in which the abovementioned provisions of the legislation enable effect to be given to Article 36, paragraphs 2 and 3, of the Convention, which states that in case of partial permanent loss of earning capacity, or in case of corresponding loss of faculty the benefit shall be a periodical payment representing a suitable proportion of that specified for total loss of earning capacity or corresponding loss of faculty, the periodical payments being convertible into a lump sum in accordance with paragraph 3: (a) where the degree of incapacity is slight; and (b) where the competent authority is satisfied that the lump sum will be properly utilized. The Committee also asks the Government to provide copies of any administrative or judicial decisions that illustrate with specific examples the manner in which effect is given in practice to the abovementioned provisions of the legislation.

(b) In its previous comments the Committee noted that section 8 of Act No. 24/1997 of 15 July has replaced the definitions of the various categories of invalidity by specifying that the qualification for the various degrees of permanent incapacity shall be determined on the basis of the percentage of the reduction in capacity for work. The Committee understands that these regulations have not yet been adopted, which means that the former provisions still apply. It asks the Government to indicate in its next report any developments in this respect.

2. Part XI (Calculation of benefits). (a) The Committee notes from the statistical information provided by the Government that sickness benefit (Part III) and employment injury benefit (Part VI) attained the level prescribed by the Convention.

(b) With regard to unemployment benefit (Part IV), the Committee notes that the Government avails itself of Article 66 of the Convention. The Committee recalls in this connection that, according to this provision, periodical payments may not be less than a specified amount which, in respect of the contingency in question for the standard beneficiary indicated in the Schedule to the Convention, must be at least equal to the percentage indicated therein of the total of the wage of an ordinary adult male labourer. This method of calculation is used in particular for schemes that pay benefits fixed at a uniform rate, but it can also be used where the benefits, as is the case of unemployment benefits in Spain, although set on the basis of the beneficiaries’ former earnings, comprise a guaranteed minimum. Should the Government continue to avail itself of Article 66 in calculating unemployment benefits, the Committee hopes that in future it will not fail to provide statistics not only on the earnings of an ordinary adult male labourer chosen in accordance with paragraphs 4 or 5 of the above Article, but also on the minimum unemployment benefit paid to a standard beneficiary (a man with a wife and two children).

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

Further to its previous comments, the Committee notes the detailed information supplied by the Government in its report.

1. Part III (Sickness benefit), Article 18 (in conjunction with Part XIII (Common provisions)), Articles 71, paragraph 3, and 72, paragraph 2. In its earlier comments, the Committee noted that, in accordance with Royal Decree No. 5/1992 of 21 July, issuing special budgetary measures, section 131(1) of the General Social Security Act (LGSS) provides that payment of the benefit due in the event of temporary incapacity for work resulting from common illness or a non-occupational accident is the responsibility of the employer from the fourth to the fifteenth day of leave inclusive. It also noted the observations made in this respect on several occasions by the General Union of Workers (UGT), according to which the 1992 reform raises considerable problems because the State no longer assumes direct responsibility for the guarantees laid down in the Convention. This results in conduct and practices which offend against the dignity of workers and, in some cases, involve denial of the benefit due as a result of pressure from the employer. The Committee therefore asked the Government to supply information on the measures taken to ensure fulfilment by the employers of their obligation to pay sickness benefit from the fourth to the fifteenth day of incapacity.

In its reply, the Government indicates that it has introduced new measures for managing benefits due to temporary incapacity for work, and aimed essentially at combating abuses and fraud, through more specific monitoring of the incapacity for work of the person concerned. In particular, the new measures taken by Royal Decree No. 1117 of 5 June 1998 and Royal Decree No. 6 of 23 June 2000, along with the Order of 18 September 1998, authorize physicians registered with the National Social Security Institute and those of the social security occupational accident and occupational diseases mutual schemes to verify the termination of the temporary incapacity for work, which will determine the termination of the entitlement to the corresponding benefit, without prejudice to the right to the medical care that the public health service will continue to supply if this is still necessary. Henceforth, the public health service is no longer solely competent to declare the termination of the temporary incapacity but shares this power with other entities which, in the Government’s view, constitutes an important means of supervising protection against temporary incapacity as well as better rationalization and effectiveness in management of the financial benefit.

The Committee notes these new measures which still do not in themselves respond to the fears expressed by the UGT, but fall within the more general framework of combating fraud and abuses.

More particularly in regard to failure by the employers to fulfil their obligations to pay sickness benefits, raised by the UGT, the Government considers that this is a sporadic and occasional occurrence and does not constitute a widespread violation of legislation. It sees proof of this in the fact that the other representative unions which receive copies of the Government’s reports have not raised the question. In this context, the Government refers to the agreement for the improvement and development of the social protection system, concluded by the Government and certain social partners in April 2001, which seeks in particular, solutions to ensure that this type of situation remains marginal. The Committee asks the Government to supply a text of this agreement and also to furnish information on the results obtained.

The Committee also recalls that, in a decision handed down on 15 June 1998 the Supreme Court declared that the system of obligations and accompanying guarantees established in respect of direct payment of the benefit for temporary incapacity according to the public social security scheme in the event of the employer’s failure to meet the obligation to pay the benefit directly must be maintained, without prejudice to the managing entity’s right to reclaim the amount subsequently from the enterprise in question, in exercise of the authority conferred on it as managing entity of the social security system. In this respect, the Committee notes that, according to the information in the Government’s report, in the absence of a legal provision or consolidated jurisprudence, as required by Spanish legal order for it to be of general application, the social security management entities assume direct payment of the benefit only when the failure to execute affects the period for which the enterprise must pay the benefit for temporary incapacity by delegation of the social security, that is, from the sixteenth day of incapacity or when, during the initial period of payment covered in section 131(1) of the Social Security Act, the employment is terminated. The Committee recalls that under Article 71, paragraph 3, of the Convention, the State must accept general responsibility for the due provision of the sickness benefits and shall take all measures required for this purpose. The Committee asks the Government to indicate any developments in this matter with a view to strengthening the implementation of this provision of the Convention. The Committee also attaches particular importance to the supervision effected by the labour and social security inspection service and would be grateful if the Government would continue to supply detailed information on the supervision carried out by the inspection service in regard to proper fulfilment by the employer of his obligations under section 131(1) of the LGSS, particularly on the number of inspections conducted, violations reported and penalties imposed. Please supply extracts from all relevant reports.

2. Part III (Sickness benefit), Article 18, and Part VI (Employment injury benefits), Article 36, paragraph 1, (in conjunction with Part XIII (Common provisions)), Articles 71, paragraph 3, and 72, paragraph 2. With regard more particularly to the possibility for the employer to assume responsibility for direct payment of cash benefits for temporary incapacity for work, in the framework of the cooperation provided in section 77 of the LGSS, the Committee asked the Government to provide a number of supplementary details and, in particular, statistics. In its reply, the Government confirms that the most recent important measures taken in this matter were introduced by Royal Decree No. 706/1997 of 16 May, the content of which was analysed by the Committee in its previous observation. Furthermore, the Government states that in the framework of voluntary collaboration, the enterprise assumes directly payment of the cash benefit for temporary incapacity of work for workers in its employment without this collaboration being subject to cession, transmission or insurance with another person or entity. The enterprise may, nevertheless, conclude contracts with other entities with a view to ensuring supervision of the benefit; in this case, furthermore, these activities may not be financed through contributions deducted by the enterprise since they must be devoted solely to the purpose of collaboration, namely, payment of the benefit. The enterprise is required to have a special accounting head covering the collaboration activities. The enterprise must communicate to the administration the necessary data for the latter to be fully aware of the measures taken in the framework of collaboration. Violation by the employer of his obligation to pay directly the cash benefits for temporary incapacity constitutes an administrative violation which can be penalized by a fine and by the temporary or definitive suspension of the right to voluntary collaboration. With regard to the workers, failure of the enterprise to fulfil its obligations entails its civil or penal responsibility according to case without the subsidiary responsibility of the social security bodies being involved. Finally, the Government considers that the agreement concluded with certain social partners for the improvement and development of the social welfare system mentioned above should enable a solution to be found for any cases of enterprises failing to fulfil their obligations.

The Committee notes this information with interest. According to the information supplied earlier by the Government, a large number of workers are concerned by the type of collaboration provided in section 77(1) of the LGSS and the Committee therefore hopes that the Government will not fail to continue to supply information and statistics on the number and results of the checks carried out by the Labour and Social Security Inspectorate and the General Social Security Controller, by indicating the number and nature of penalties imposed as well as information on the number of workers concerned and enterprises participating in the forms of voluntary collaboration provided in section 77(1), particularly subparagraphs (a) and (d), as compared with the total number of workers involved in the LGSS in regard to benefits for temporary incapacity. The Committee also asks the Government to continue to communicate information on all measures taken or contemplated in this matter with a view to improving operation of the voluntary collaboration system and, in particular, on any solutions that have been found in the framework of the agreement for improving and developing the social protection system concluded with certain social partners with a view to ensuring payment of benefits for temporary incapacity for work in the event that the system fails to function in practice.

3. Part VI (Employment injury benefit), Article 34, paragraph 2(c). In reply to the Committee’s comments, the Government recalls that legislation provides for medical care at the home of the patient under the terms of primary medical assistance, care at home for immobilized patients and patients in the terminal phase, primary emergency care at the home of the patient and oxygenotherapy at home (Royal Decree No. 63 of 1995). It adds that medical care is supplied regardless of the origin of the illness or accident, be it common or occupational, from which the patient who needs care at home is suffering. The Committee notes this information. It assumes that this medical assistance includes provision of nursing care at home free of charge in accordance with this provision of the Convention.

Article 34, paragraph 2(e). In its reply the Government first refers to information supplied earlier on the content of medical assistance provided under legislation in the event of occupational accidents and diseases and indicates that, to date, it has adopted no new measures to include specifically dental prosthetic appliances and spectacles, in accordance with this provision of the Convention. The Committee therefore hopes that in its next report the Government will be able to indicate the measures taken or envisaged to give effect in particular to Article 34, paragraph 2(e), on this point.

4. Finally, the Committee asks the Government once again to supply its comments in reply to the observations made by the UGT on 27 February 1999 concerning Part II (Medical care) of the Convention.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

With reference to its previous comments, the Committee notes the information sent by the Government in its report for the period 1996-98, particularly the information concerning cash benefits for temporary incapacity in the event of strikes and lockouts (Articles 18 and 38 of the Convention).

Article 36 of the Convention.  (a)  The Committee recalls that under section 139(1) of the General Social Security Act (LGSS), and according to the information provided previously by the Government, workers whose degree of incapacity for their usual occupation, as established by incapacity evaluation teams (EVI) of the National Social Security Institute, exceeds 33 per cent, but does not make it impossible to perform the basic tasks inherent in such an occupation, are entitled to a lump-sum benefit. With regard to the evaluation criteria employed by these teams, the Government states, in response to the Committee’s previous comments, that case law has established a series of criteria to assess the impact of the injury on the capacity for work of the person concerned, on the basis of which it may be considered that the degree of permanent partial incapacity has been attained. According to this case law, injuries must make the performance of the tasks inherent in the usual occupation more difficult or more arduous, that is that the worker needs more time and more effort to carry out the work. This involves assessing the lost capacity for normal output in relation to the normal effort required to achieve that result. Permanent partial incapacity may exist even where the output is not reduced, if the physical effort that the person has to make is greater and the performance of the work therefore becomes more arduous. In contrast, despite the fact that an injury has an impact on the performance of the tasks inherent to a specific job, permanent partial incapacity does not exist where it does not affect output in other jobs of the same category. The Committee notes this information. It would like the Government to provide the text of the relevant judicial decisions concerning both cases of partial incapacity and cases of total incapacity covered by sections 139(1) and (2) of the General Social Security Act, taking into account the fact that, in accordance with Article 36, paragraph 2, of the Convention, in case of permanent partial loss of earning capacity or corresponding loss of faculty, the benefit shall be a periodical payment set at a suitable proportion. In this respect, the Committee asks the Government to indicate the benefits to which a worker would be entitled who, as a result of an employment injury, could only perform the tasks inherent to the job for half of the normal hours of work, particularly in the event that the worker could not be transferred to another job or the employment contract comes to an end.

(b)  In its previous comments, the Committee noted that section 8 of Act No. 24/1997 of 15 July replaced the definitions of the various categories of invalidity by specifying that qualification for the various degrees of permanent incapacity shall be determined on the basis of the percentage of the reduction in capacity for work. On this subject, the Government states that the regulations in question have not yet been adopted and that the previous provisions therefore remain applicable. The Committee hopes that the Government will provide the text of the new regulations when they are adopted.

Part XI (Standards to be complied with by periodical payments) in relation to the following Parts of the Convention: Part III (Sickness benefit), Article 16; Part V (Old-age benefit), Articles 28 and 29; Part VI (Employment injury benefit), Article 36; Part VIII (Maternity benefit), Article 50; and Part IX (Invalidity benefit), Articles 56 and 57.  With reference to its previous comments on the calculation of the above benefits, the Committee notes the statistics on the calculation of benefit provided in the Government’s report for sickness benefit and employment injury benefit and notes in particular that the Government refers to Article 65, paragraph 6(d), of the Convention, which defines a skilled manual male employee as a person whose earnings are equal to 125 per cent of the average earnings of all the persons protected. The Committee hopes that in its next report the Government will be able to provide the statistics requested in the report form under Article 65 with respect to all the abovementioned benefits.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

Further to its previous comments, the Committee notes the detailed information sent by the Government in its report for the period 1996-98, particularly concerning the adjustment of pensions granted to the victims of occupational injuries in the event of permanent incapacity or to their survivors in the event of death (Article 36, in conjunction with Article 65, paragraph 10). The Committee also notes the comments of 27 February 1999 sent by the General Union of Workers (UGT), concerning the application in Spain of certain Conventions, including Convention No. 102, which were sent to the Government on 17 March 1999.

1.  Part II (Medical care) of the Convention.  The UGT alleges that the health system is constantly at risk of being privatized owing to certain forms of management or the exclusion of drugs from public funding. At the same time this usually results in a "adverse selection of risks", as the more costly treatments are left to the public sector while the most profitable go to the private sector. The year 1998 saw the last withdrawal from public funding of a long list of drugs amounting to 35 million pesetas. In the UGT’s opinion, this policy of cuts in the health budget is wrong. Many of the drugs withdrawn are for the treatment of chronic diseases among the elderly, denying the latter their right to health and contravening Article 10, paragraph 1(a)(iii), of the Convention. Geographically speaking, there has been a process of transfer to the autonomous communities based on financing alone rather than on the establishment of a single coordinated model. This is the cause of serious inequalities between the inhabitants of the various autonomous communities. As to effective medical care, in Spain the waiting lists for some specialist treatments can amount in effect to a denial of the right to health, since the delay aggravates the illness, which can prove fatal for the patient. The Committee asks the Government to send its comments on the UGT’s observations.

2.  Part III (Sickness benefit), Article 18 (in conjunction with Part XIII (Common provisions), Articles 71, paragraph 3, and 72, paragraph 2).  In its previous comments, the Committee requested the Government to indicate the measures taken to ensure that employers meet their obligation to pay the sickness benefit from the fourth to the fifteenth day of incapacity, in accordance with section 131(1) of the General Social Security Act (LGSS) and Royal Decree No. 5/1992 of 21 July, and in particular to ensure that they do not substitute their own physicians for those normally used by the health authorities and that they suspend the payment of sickness benefits only in the cases allowed by Article 69 of the Convention. It also asked the Government to take measures to ensure the payment of sickness benefits in the event of the employer becoming insolvent or falling behind with the payments.

In its reply, the Government refers to the new measures for the management and supervision of the cases of temporary incapacity established in Royal Decree 575/1997 of 18 April and the Ministerial Order of 19 June 1997, and indicates that the public health service is still responsible for supervising cash benefits. Consequently, it is this service and not the enterprise that issues the notifications of incapacity, confirmation or fitness which determine entitlement to cash benefits for temporary incapacity. The enterprise may not unilaterally terminate the medical incapacity of its workers and must base itself on one of the grounds established by law for suspending or terminating the benefit. If the enterprise fails to meet its obligation to pay the benefit, it becomes liable and may be reported to the Labour Inspectorate and even sued for debt in administrative and/or judicial proceedings. If the enterprise is no longer liable because the labour relationship has ended, the managing entity will pay the benefit directly.

The UGT confirms its previous observations of 1995 and 1996, in which it indicated that the 1992 reform raised important issues concerning the State’s discharge of its responsibilities: from the fourth to the fifteenth day of the incapacity, the State does not directly assume responsibility for the guarantees prescribed by the Convention. This results in conduct and practices which offend against the dignity of workers and, in some cases, the latter are denied the benefit due to pressure from the employer. According to the UGT, the employer subjects the worker to excessive supervision, allowed by section 20.4 of the Workers’ Statute, which also authorizes the employer to suspend payment of the sickness benefit if the worker refuses to undergo a medical examination. The State thus in effect loses control over the guarantee required by Convention No. 102.

The Committee notes the information on the new measures related to the management and supervision of the temporary incapacity mentioned by the Government as well as the statement of the UGT that the important problems in this area remain, which seems to be supported by the detailed statistics supplied by the Government on the inspections made, infringements recorded and penalties imposed by the Labour and Social Security Inspectorate in 1996-97 in the area of social security and, more particularly, with respect to compulsory and voluntary collaboration of enterprises in the management of the benefit for temporary incapacity. Indeed, while the number of inspections carried out in 1997 (4,579) decreased in comparison with 1996 (4,877), the number of infringements recorded has substantially increased from 1,167 in 1996 to 1,526 in 1997. Measures to combat infringements included the adoption of Royal Decree 575/1997 of 18 April, and the Ministerial Order of 19 June 1997, the purpose of which is to "improve the efficiency and transparency of the management of temporary incapacity, avoiding the risk of abuse and fraud while at the same time observing the rights of those actually affected by the incapacity provided for in the law". The Committee observes that both the above texts establish more specific provisions on medical certification of incapacity or fitness for the purposes of the cash benefits for temporary incapacity and the resulting obligations of the public health services and enterprises. However, with regard to supervision and follow-up of the cash benefit and cases of temporary incapacity, under section 4 of Royal Decree 575/1997 the managing entities of the social security have the authority to carry out "activities for the purpose of ascertaining that the facts and situation which gave rise to the entitlement to the benefit still exist, as from the date on which they take over responsibility for the cost of the cash benefit for temporary incapacity. In legal terms this can mean that the managing entities do not normally supervise and follow up this benefit from the fourth to the fifteenth day of the incapacity when the enterprise is responsible for the cost of the benefit. This may result in the conduct and practices on the part of the employer referred to by the UGT and in the worker being denied the benefit. According to the Government, in such cases the worker may report the matter to the Labour Inspectorate or file an administrative or judicial complaint. If there is no longer an enterprise responsible for payment of the benefit because the labour relationship has been terminated, the managing entity will pay the benefit directly.

In the Committee’s view, workers should not as a rule have to take the matter to the Labour Inspectorate or the courts in order to receive sickness benefits due to them and, if employers fail to meet their obligations, it is up to the State to take the necessary steps to ensure that the benefits are paid in practice, in accordance with Article 71, paragraph 3, and Article 72, paragraph 2, of the Convention. The Committee notes in this connection the decision handed down on 15 June 1998 by the Supreme Court, whereby "the fact that the law requires the employer to pay the temporary incapacity benefit directly during the period in question does not mean, in the absence of an express provision, that such obligation shall have the effect of depriving the beneficiary of the system of coverage and guarantees established for social security benefits in the event of failure to pay … The system of obligations and accompanying guarantees established in respect of this benefit in the public social security scheme in the event of the employer’s failure to meet the obligation to pay it directly, must be maintained, without prejudice to the managing entity’s right to reclaim the amount subsequently from the enterprise in question, in exercise of the authority conferred on it as a managing entity of the social security system". The Committee therefore asks the Government to provide information in its next report on the abovementioned "system of obligations and accompanying guarantees". It also hopes that the Government will continue to provide copies of the relevant judicial decisions together with information on the supervision carried out by the Labour and Social Security Inspectorate, including the number of inspection visits made, the infringements recorded and the sanctions applied.

3.  Part III (Sickness benefit), Article 18, and Part VI (Employment injury benefit), Article 36, paragraph 1 (in conjunction with Part XIII (Common provisions), Articles 71, paragraph 3, and 72, paragraph 2).  With regard more particularly to the possibility for the employer to assume responsibility for direct payment of cash benefits for temporary incapacity for work resulting from common illness, in the context of the collaboration provided for in section 77(1)(d) of the LGSS, the Committee notes that such collaboration also extends to temporary incapacity resulting from employment injury as provided in section 77(1)(a). The Committee thanks the Government for having supplied the statistical information requested in its previous comments on the supervision carried out by the Labour and Social Security Inspectorate in 1996-97, with regard to compulsory and voluntary cooperation of enterprises in the management of the benefits for temporary incapacity. As the Committee observed under point 2 in its previous comments, these statistics show a substantial increase in the number of recorded infringements by enterprises. To combat this trend, the Government refers to a number of measures taken. Royal Decree 706/1997 of 16 May establishes that enterprises cooperating in social security management are subject to the financial supervision of the General Social Security Controller, without prejudice to the authority conferred on the Labour and Social Security Inspectorate. The purpose of such supervision is to ascertain, in particular, that the scope and amounts established by law for protective measures are observed. Furthermore, to ensure that the system for voluntary collaboration by enterprises in social security management operates properly, the Government adopted the Ministerial Order of 20 April 1998 to amend the Order of 25 November 1996 regulating the cooperation of enterprises in the management of the General Social Security Scheme, the object of which is to avoid practices which are contrary to the nature of the institution, such as the practice of transferring the management of cash benefits for temporary incapacity to entities other than the authorized enterprise. Provisions have also been introduced to bring greater clarity to the obligations, to ensure that public benefits are paid in the event of lack of resources and to establish instruments for ascertaining the proper use of the resources earmarked for the collaboration in question.

The Committee notes these measures with interest. It also notes that they concern a very large number of workers in the enterprises cooperating in the management of the social security system. According to the statistics given by the Government, on 22 April 1998, the number of workers covered by the cooperation arrangement established in section 77(1)(d) of the LGSS was 1,276,292, corresponding to 16,868 contribution registers assigned to participating enterprises. In order to be able to assess the effectiveness of these measures, the Committee would like the Government to continue to supply detailed statistics on the number and the results of the checks carried out by the Labour and Social Security Inspectorate, as well as by the General Social Security Controller. It would also like the Government to provide statistics on the number of workers concerned and enterprises taking part in the other forms of voluntary collaboration provided for under section 77(1), in particular subparagraph (a). Lastly, the Committee would welcome information on any new measures taken or contemplated by the Government with a view to improving the functioning of the system of voluntary collaboration of enterprises in the payment of sickness benefit and ensuring the payment of this benefit in case of its malfunctioning.

4.  Part VI (Employment injury benefit), Article 34, paragraph 2(c) and (e).  In its previous comments the Committee requested the Government to indicate the legislative provisions or regulations under which nursing care at home, dental supplies and eyeglasses are provided free of charge to victims of employment injury, in accordance with these provisions of the Convention. In reply, the Government refers to section 11 of Decree No. 2766 of 1967, which provides that medical assistance in the event of employment injury shall be provided to workers as fully as possible and include: (a) medical and surgical care for injuries and diseases, medicaments and, in general, all the diagnostic and therapeutic techniques considered necessary by the medical profession; (b) the supply and normal resupply of prosthetic and orthopaedic appliances considered necessary, as well as vehicles for disabled persons; and (c) plastic surgery under certain conditions. With regard in particular to nursing care at home, the Government adds that Royal Decree No. 63 of 1995 includes in Annex I, among the benefits provided directly by the national health system and financed by social security or public funds, medical assistance at the home of the patient. Similarly, care at home is provided for immobilized patients and patients in the terminal phase, as well as primary emergency care at the home of the patient. In this respect, the Committee notes that point 2(4) of Annex I of Royal Decree No. 63 of 1995 states that primary emergency assistance is provided continuously at all hours of the day and night and includes outpatient medical and nursing care, as well as care at the home of the patient in cases in which it is required. The Committee asks the Government to confirm in its next report that the victims of employment injury are entitled free of charge to the nursing care at home which is necessary during the entire period that they are immobilized.

Furthermore, the Committee also notes a number of provisions to which the Government refers in its report, and particularly section 108 of Royal Decree No. 2065/1974, Annex I of Royal Decree No. 65/1995 and the Ministerial Order of 18 January 1996, which refer to the possibility of providing financial assistance for "dental and special prosthetic appliances", covering the difference between the cost of the corresponding articles and the share of the user, according to the prescribed rates. However, it notes the statement by the Government that dental prosthetic appliances, with certain exceptions for the palate, as well as eyeglasses, which are covered by Article 34, paragraph 2(e) of the Convention, are not included in the list of benefits provided by the health system. It notes in this respect that Annex V of the Ministerial Order of 18 January 1996, which defines dental and special prosthetic appliances, only makes reference in this respect to prostheses of the palate. In these conditions, the Committee would be grateful if the Government would indicate in its next report the measures which have been taken or are envisaged to give full effect to this provision of the Convention in national law and practice with regard to the provision free of charge of dental supplies and eyeglasses to the victims of employment injuries.

5.  The Committee notes the communication dated 29 February 2000 sent by the Moroccan Democratic Confederation of Labour on the application by Spain of certain Conventions, including Convention No. 102, and the comments which the Government saw fit to make on these issues.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

Part III (Sickness benefit), Article 18, and Part VI (Employment injury benefit), Article 38, of the Convention. The Committee notes that in application of section 131(3) of the General Act on Social Security (LGSS), in the event of a strike or lockout, the worker is not entitled to cash benefit for temporary incapacity. The Committee requests the Government to supply information on how this provision is applied in practice, in particular by indicating the situation of workers whose incapacity to work, in the meaning of section 128 of the General Act on Social Security, occurred before the strike or lockout took place.

Part VI (Employment injury benefit), Article 36, paragraph 2. (a) In its report the Government indicates that workers whose degree of incapacity for their usual occupation exceeds 33 per cent but does not make it impossible for them to perform the basic tasks inherent in such an occupation shall be entitled to a lump-sum allowance, in accordance with Spanish legislation (General Social Security Act, section 139, paragraph 1). The Government adds that this incapacity is assessed by special teams for the handicapped within the National Institute of Social Security. The Committee notes this information. It requests the Government to provide additional information on the manner in which the assessment is carried out in practice, and in particular on the criteria used by the assessment teams.

(b) The Committee notes that section 8 of Act No. 24/1997 of 15 July has replaced the definitions of the various categories of invalidity by specifying that qualification for the various degrees of permanent incapacity shall be regulated on the basis of the percentage of the reduction in capacity for work. The Committee requests the Government to indicate whether the new regulatory provisions relating to the determination of the various degrees of incapacity have been adopted and, if so, to provide a copy of them.

Part XI (Standards to be complied with by periodical payments, Article 65). The Committee notes the Government's statement in its report that in defining a skilled manual employee, it referred to Article 65, paragraph 6(d), i.e. to a person whose earnings are equal to 125 per cent of the average earnings of all the persons protected. Consequently, the Committee hopes that the Government will be able to provide, in its next report, all the information requested in the report form under this Article of the Convention, not only in respect of the amount of the wage of a skilled manual employee, but also of the amount of the benefits to be paid to a typical beneficiary whose earnings are equal to the wage of a skilled manual male employee.

[The Government is asked to report in detail in 1998.]

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

With reference to its previous comments made in 1993 and 1995 (November-December), the Committee notes the information provided by the Government, in particular that relating to Part XIII (Common provisions), Article 72 (Participation of protected persons in system administration). It also notes the adoption of Act No. 42/1994 to unify the benefits in respect of temporary incapacity for work and of temporary invalidity in a single temporary incapacity benefit. Furthermore, the Committee notes the information contained in the observation sent by the General Union of Workers (UGT).

1. Part III (Sickness benefit), Article 18; Part VI (Employment injury benefit), Article 38 (in relation to Article 69(f)). In its previous comments, the Committee observed that under the provisions of the General Social Security Act the benefits in respect of temporary incapacity could be refused, cancelled or suspended where this incapacity was caused or prolonged by "recklessness" on the part of the beneficiary. The Committee notes with satisfaction that following the adoption of Act No. 42/1994 of 30 December, this cause of loss or suspension of entitlement to the temporary allowance has been removed from the text of section 132 of the General Social Security Act (LGSS).

2. Part III (Sickness benefit), Article 18 in relation to Part XIII (Common provisions), Article 71, paragraph 3, and Article 72, paragraph 2). (a) In its previous comments, the Committee requested the Government to indicate the measures taken to ensure that employers fulfil their obligation to pay sickness benefits from the fourth day up to the fifteenth day of incapacity, in accordance with section 131, paragraph 1, of the LGSS, and with Royal Decree No. 5/1992 of 21 July. In its report, the Government indicates that where a worker has submitted the necessary health documents, the cash benefit shall be paid to him automatically. The Government adds that the doctor usually assigned to the worker by the corresponding health services is empowered to determine his state of incapacity. Furthermore, the Government explains that the fulfilment of an employer's obligations is guaranteed by means of the complaints made to the Labour and Social Security Inspectorate. In addition, in the case of non-payment of benefits, a worker may appeal to the courts, although the Government does not know of any court decisions handed down in this regard. Finally, the Government indicates that no provisions exist to ensure that benefits are paid in case of the insolvency of an employer.

For its part, in a communication of 15 November 1996 the General Union of Workers confirms its previous observations in which it indicated that the reform of 1992 causes significant problems both by absolving the State of its responsibility emanating from the Convention and by generating codes of conduct and practices contrary to a worker's dignity. In particular, the enterprises which are unaware of the sanitary authorities whose task it is to draw up official documentation, subject workers to examinations by their own medical staff and begin by suspending the payment of benefits from the start of the period of sick leave, apart from where the leave is the result of surgery or an accident, so that workers are obliged to appeal to the courts for entitlement to the benefits which should be paid to them.

The Committee notes this information. It recalls that although the obligation of an employer to pay sickness benefits for a limited period may be considered to correspond to the case laid down in the Convention, such a system must still offer all the guarantees in respect of the payment of benefits in practice. In such a case, it is the responsibility of the State to take all the necessary measures to achieve this aim, in accordance with Article 71, paragraph 3, and Article 72, paragraph 2. The Committee considers that a worker should not, as a rule be obliged to refer his case to the Labour Inspectorate or to the courts in order to receive the sickness benefits which should be paid to him. Consequently, the Committee hopes that the Government's next report will contain detailed information on the steps taken against employers who do not fulfil their obligations, in particular to ensure that such employers do not replace doctors from the sanitary authorities usually empowered to conduct examinations with their own medical staff, and that they only suspend the payment of sickness benefits in the cases authorized under Article 69. The Committee also hopes that the Government will be able to take measures to ensure, in all cases, the payment of sickness benefits owed by an employer, both within the framework of Royal Decree No. 5/1992 and of section 77, paragraph 1(d) of the LGSS, in particular in case of the insolvency of an employer, or a delay in the payment by him of sickness benefits. The Committee asks the Government to provide, in its next report, complete information on the checks made by the Labour and Social Security Inspectorate, in particular on the number of inspections made, the cases of infringements recorded and the penalties imposed. Finally, the Committee requests the Government to provide copies of the texts of all administrative and court decisions adopted in this area as well as the texts of any new legislation which may be adopted.

(b) As regards more particularly the possibility offered to employers in the cooperation provided for in section 77, paragraph 1(d), of the LGSS, i.e. to assume direct responsibility for the payment of cash benefits in respect of temporary incapacity resulting from a common risk, the Committee notes the text referred to by the Government in its report, and in particular the Order of 18 January 1993 and Royal Decree No. 2064/1995 of 22 December. The Committee observes that in return for the obligation to pay sickness benefits directly, an employer benefits from a reduction in the contributions to be paid; in addition, an employer must allocate any possible surplus funds resulting from the cooperation provided for in section 77, paragraph 1(d) referred to above -- which is only possible if it involves all the workers in an enterprise -- to improving the cash benefits paid in the case of temporary incapacity. By contrast, in the texts examined the Committee has not found any other obligations likely to ensure, in all cases, the payment of sickness benefits in practice. In order to be in a better position to assess the situation, the Committee requests the Government to provide, in its next report, detailed information on the implementation in practice of section 77, paragraph 1 of the LGSS, by indicating in particular the number of enterprises which have engaged in such cooperation and the number of workers concerned. It also wishes to receive information on the checks made by the Labour and Social Security Inspectorate and on the their results (number of infringements, penalties and so on) (see also 2(a) above).

3. Part VI (Employment injury benefit). (a) Article 34, paragraph 2. Further to its previous comments and to the observation previously supplied by the UGT, the Committee notes that the Government's report does not contain any new information specifying the provisions of national legislation under which nursing care at home, dental supplies and eyeglasses are supplied to the victims of occupational injuries, in accordance with Article 34, paragraph 2(c) and (e). It hopes that the Government would provide this information in its future report.

(b) Article 36 (in relation to Article 65, paragraph 10). The Committee again requests the Government to provide all the statistics requested under Article 65, Title VI, in the report form adopted by the Governing Body in respect of the revaluation of the pensions allocated to the victims of occupational injuries in the case of permanent incapacity, or to their survivors in the case of death, together with information on the changes in the cost of living and the general level of earnings.

4. Part IV of the Convention (Unemployment benefit), Articles 23 and 24. In this regard, the Committee refers to the observations made under the Unemployment Provision Convention, 1934 (No. 44), at the present meeting and at the meeting held in November-December 1995 (points 1 and 3).

[The Government is asked to report in detail in 1998.]

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

Referring to its previous comments, the Committee takes note of the Government's report for Convention No. 102, as well as its reports submitted under Convention No. 24 and Convention No. 44. The Committee also notes the new comments of the General Union of Workers (UGT) on the application of Convention No. 44 and Convention No. 102. These comments, which also have an impact on the application of Convention No. 24, were transmitted to the Government on 21 November 1996. The Committee decided to defer its examination of them until its next session in order to consider the reports and observations together with the Government's first report on the application of the European Code of Social Security, and in light of all supplementary information which the Government may wish to communicate in this regard.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

With reference to its previous observation, the Committee notes the comments made by the General Union of Workers (UGT) on the application of Convention No. 102, as well as the Government's reply to them, communicated together with its report in January 1995. It also refers to the UGT's comments and the Government's reply concerning Convention No. 24, in as much as they also raise issues relating to Convention No. 102.

1. In its comments, the UGT states that the reform, introduced by Royal Legislative Decree No. 5/1992 of 21 July 1992 concerning urgent budgetary measures respecting the cash benefits in case of temporary incapacity to work (ILT) due to sickness or injury not occupational in origin, establishes that the employer is liable to pay cash benefit to the worker from the fourth through the 15th days of absence, both inclusive. This reform has resulted in important problems because the Government does not assume directly, during this period, the guarantees provided by the Convention. The UGT considers that with this reform, cash benefit for ILT has been privatized in Spain, at least for 15 days, which departs substantially from the spirit of Convention No. 102. Furthermore, adds the UGT, the new formula, intended to combat worker absenteeism caused by ILT, could result in employer conduct and practices which offend against the dignity of the worker. Employers routinely submit workers to a disproportionate scrutiny by bypassing the health authorities which sign the periodic official sections of forms for medical leave, and requiring workers to undergo an examination before their own doctors, as provided under section 20(4) of the Workers' Charter. The said section authorizes the employer to require verification of incapacity and to suspend payment of sickness benefit for which he is liable if the worker fails to submit to an examination. The UGT also states that, presently, employers are beginning to suspend payment of benefit from the beginning of the absence except for accidents or in cases requiring surgery, forcing workers to appeal to the courts for payment of benefit in each instance of illness.

In reply, the Government indicates, with reference to judicial decisions 37/1994 and 129/1994 of the Constitutional Court, that the modification introduced by Royal Legislative Decree 5/1992 concerning ILT has not affected the level of protection for workers, nor has it changed either the public nature or the character of the basic benefit. The Government asserts that this modification does not affect the application by Spain of Convention No. 102, as it does not impose rigid formulas for managing the national social security systems. Recalling the content of section 20(4) of the Workers' Charter, it adds that doctors who are registered with the social security scheme have the competence to determine the state of temporary incapacity of the worker, which gives rise to the right to receive the corresponding cash benefit, and have to issue the certificates for medical leave in conformity with the official model and the procedures established under the Order of 13 October 1967. The Government warns, none the less, that it is necessary to examine the historical context of section 20(4) of the Workers' Charter. At that time, payment of benefit by the employer was limited to benefits of a supplementary nature which derived from collective agreements or were provided to workers at the employer's discretion as a supplement to the publicly funded benefits. At the present time, with the modification carried out, the legal obligation placed exclusively on employers is of a public nature and not private. For this reason, it is considered that the above-mentioned section 20(4) does not apply since the payment of cash benefit from the fourth through the 15th days for ILT, although derived from a contractual relationship, is not directly part of such a relationship. The Government concludes by indicating that for the possible cases of incomplete fulfilment of the standards cited by the UGT, there exist means to guarantee the re-establishment of the rights through labour and social security inspection as well as through the social courts.

The Committee takes note of this information. It observes that, in conformity with section 131(1) of the General Law of Social Security (texts consolidated in Royal Legislative Decree No. 1 of 20 June 1994), in case of common illness or an accident not related to work, the same indemnity of the general social security system for ILT is to be paid by the employer from the fourth through the 15th days of absence, and paid by the social security system from the 16th day. According to section 77(1)(d) of said Law, an employer which cooperates in assuming responsibility for the direct payment of benefit for ILT under the conditions established by the Ministry of Labour and Social Security has the right to a reduction in its contribution to the social security system, in accordance with the coefficient fixed by the Ministry. In reference to these legal provisions, the Committee also notes that, according to the Government, the public character of the social security system is not put into question by recourse to means of private management or responsibility, since the reform does not alter the predominant role and the obligation of the public authorities, in their supervisory role, in the event of the contingency of incapacity to work.

The Committee considers that the modification introduced by Royal Legislative Decree No. 5/1992 appears to be permitted under Article 69(c) of Convention No. 102 which specifies that benefit may be suspended as long as the beneficiary is receiving another social security cash benefit or is indemnified for the same contingency by a third party. However, the Committee recalls that in such cases the Government shall continue to assume general responsibility concerning the due provision of sickness benefits and must take all measures required for this purpose, in conformity with Article 71, paragraph 3, of the Convention. Given the nature of the UGT's comments, the Committee asks the Government to indicate the measures taken to assure in practice that employers pay sickness indemnity for the first 15 days of incapacity, in a manner which prevents all forms of abuse. It asks the Government in particular to specify the process which the workers must undergo to qualify for sickness benefit, including which doctors are authorized to grant medical certificates, taking account of the fact that, according to the Government's report, section 20(4) of the Workers' Charter appears not to apply. The Committee also asks the Government to supply: the text of any regulations adopted by the Ministry of Labour and Social Security, in application of section 77(1)(d) of the General Law of Social Security; the text of any administrative and judicial decisions concerning this issue; as well as detailed information on the inspections conducted by the labour and social security inspection, including the number of inspections carried out, the violations discovered and the sanctions imposed. Finally, it requests the Government to indicate in what manner and by virtue of which provisions the payment of sickness benefit is insured in case of employer insolvency.

2. In its observations concerning Convention No. 24 the UGT indicates that the Government has proposed to amend the law to transfer to the private sector the payment of cash benefits for incapacities of longer duration (Provisional Invalidity and Permanent Incapacity for Work), currently managed by the public services of the social security system, which would result in privatization of benefits and of related health care. It further indicates that, regarding the management of benefits for permanent incapacity, workers are subjected to a double administrative decision: one entity verifies the incapacity and the other determines the benefit. This double procedure makes it impossible to take into consideration, beyond medical criteria, criteria of a social nature for the granting of this type of social benefit. Furthermore, according to the UGT, the unions do not effectively participate in the administration of the ILT benefits, or of the benefits for permanent invalidity or incapacity, since the General Council of the National Institute of Social Security (INSS) is an information body only, which does not go beyond the level of mere consultation.

In reply, the Government indicates that the draft law on fiscal, administrative, and social measures, approved by the Government, will combine into a single benefit the current benefits for ILT and temporary invalidity. This unification does not concern privatization of the cash benefits or health care. The draft law also involves the unification of the procedure for declaring and verifying permanent incapacity, placing all of the steps of the procedure in the INSS, which is charged with the management of the scheme. Finally, regarding the participation of unions in the management of the scheme, the Government states that the means of participation in the control and supervision of the management is realized through the general councils, the executive commissions, and the provincial executive commissions, regulated respectively by Royal Decrees Nos. 1854/1979, 1855/1979 and 1856/1979, which regulate the structure and competence of the INSS, the National Health Institute and the National Institute of Social Services. In these institutes, the unions, employers' organizations and public administration are equally represented.

The Committee notes this information and particularly the intention of the Government to combine benefits related to temporary incapacity for work and to provisional invalidity into a single benefit. It recalls in this connection that Spain has accepted the obligations of Convention No. 102 with respect to sickness benefit (Part III), but not with respect to invalidity benefit (Part IX). The Committee hopes, however, that in elaborating the draft legislation establishing a single benefit for temporary incapacity referred to above, full account will be taken of the relevant provisions of the Convention. The Committee would like to receive the text of this legislation, once adopted.

3. In its comments under Convention No. 102 the UGT also raises the question concerning the denial of the right to sickness benefit and unemployment benefit to young persons covered by the contract of apprenticeship, by virtue of section 3, paragraph 2(g), of Royal Legislative Decree No. 18/1993. In this respect the Committee refers to its comments under Conventions Nos. 24 and 44, also ratified by Spain.

4. Finally, the Committee hopes that the Government's next report will contain full information on the points raised in its observation and direct request of 1993.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's report. It also notes the comments on the application of the Convention made by the General Union of Workers (UGT) which were supplied by the Government, together with its reply to them. The Committee decided to examine this information, which was received 12 January 1995, at its next session in November-December this year.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

With reference to its observation and the comments on the application of the Convention made by the General Union of Workers, the Committee wishes to point out the following:

1. Part VI of the Convention (Employment injury benefit). (a) Article 36, paragraph 2. The Committee requested the Government to indicate whether workers who are the victims of employment injury and whose permanent incapacity is less than 100 per cent and greater than 33 per cent are entitled to cash benefits in the form of a periodical payment, in accordance with this provision of the Convention. The Government states in reply that the workers concerned, for whom the permanent incapacity ranges between 33 and 66 per cent, receive a monthly pension equivalent to 55 per cent of their real wages, in addition to various supplements and bonuses. It adds that this pension is increased by 20 per cent of the above wage for beneficiaries who have reached the age of 55 years and who are considered to encounter difficulties in finding employment (in a different activity to the one which they normally exercised) due to an inadequate level of training or the prevailing social or employment situation at their place of residence.

The General Union of Workers states in this respect that the pension provided in the event of permanent incapacity which prevents the worker from exercising his usual occupation is the only social security benefit for which a minimum amount is set only for beneficiaries who have reached the age of 65 years. The above trade union organization considers that this is a grave injustice, particularly for incapacitated workers who do not receive other income or benefits. It adds that there are cases in which the amount of the above invalidity pension is clearly insufficient and is not even equivalent to 50 per cent of the rate set out by the Convention, particularly since for a number of years the adjustment of pensions has been lower than the inflation rate.

The Committee notes the comments made by the above trade union organization, and the Government's observations on this subject. It requests the latter to indicate all the measures which have been taken or are envisaged to respond to the concerns expressed by the General Union of Workers on this point. The Committee recalls, however, that under the terms of the Convention, in the case of partial loss of earning capacity (that is less than 100 per cent, as in the case of beneficiaries in question) the benefit shall be a periodical payment representing a suitable proportion of that specified for total loss of earning capacity or corresponding loss of faculty. It is therefore only in the latter case that the rate set out by the Convention is 50 per cent.

(b) Article 38 (in relation with article 69). The Committee notes the Government's reply to its previous request concerning certain cases of the suspension of the widow's pension provided for by section 11 of the Order of 13 February 1967. The Committee also notes the comments made by the General Union of Workers on this subject and it notes with interest, in the Government's reply and the comments of the above trade union organization, that cases of the loss of parental authority on the grounds set out in sections 169 and 171 of the Civil Code do not affect the application of the Convention. It also notes with interest that the above section 11, which provides for the suspension of the widow's pension in the event of dishonourable or immoral conduct by her, is no longer applicable by virtue of Article 18 of the Spanish Constitution of 1978. The Committee also notes that the various brochures and guides published by the National Social Security Institute for insured persons do not mention, among the grounds for suspending benefits, dishonourable or immoral conduct. The Committee hopes that it will be possible, in a forthcoming revision of the legislation, to formally repeal the above provision of the Order of 1967.

2. Part III (Sickness benefit), Article 18; Part VI (Employment injury benefit), Article 38 (in relation with Article 69(f)). In its previous comments, the Committee noted that, by virtue of section 130(b) of the General Social Security Act of 30 May 1974, benefits for transitional incapacity (temporary incapacity) for work can be refused, withdrawn or suspended if the incapacity has been caused or prolonged due to the "rash conduct" of the beneficiary. The Committee requested the Government to indicate the manner in which this provision is applied in practice, in view of the fact that, by virtue of Article 69(f) of the Convention, the suspension of benefits is only authorized where the contingency has been caused by the wilful misconduct of the person concerned. In its reply, the Government states that the above provision of the Act of 1974 is no longer applied by the administration of the social security scheme due to the fact that, in practice, it is difficult to prove that the incapacity has been caused or prolonged due to rash conduct, or simply the imprudent conduct of the insured person. The Committee notes this statement with interest and, also noting the comments made by the General Union of Workers on this subject, hopes that it will be possible to formally repeal the provision of section 130(b) of the General Social Security Act in order to ensure the full application of the Convention on this point.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the Government's reply to its previous comments and the very detailed information and documentation supplied with the report for the period 1990-92. The Committee has also examined the various legislative texts which accompanied this report and notes the modifications made by the new legislation, particularly in the field of unemployment insurance. The Committee also notes the comments on the application of the Convention made by the General Union of Workers, which were transmitted with the above report, and notes the Government's observations on the points raised by the above trade union organization.

1. With regard to the matters which it raised in its previous comments, the Committee wishes to point out the following:

Part VI of the Convention (Employment injury benefit). (a) Article 34, paragraph 2. The Committee requested the Government to indicate by virtue of which laws and regulations, nursing care at home, dental supplies and eye glasses are provided free of charge to victims of employment injury, in accordance with paragraphs (c) and (e) of this provision of the Convention. In its reply, the Government refers to section 11(1) of Decree No. 2766 of 16 November 1967 which describes, in general terms, the nature of medical care provided to the victims of employment injuries. This care includes medical and surgical care, pharmaceutical products, and any diagnostic tests or therapeutic care considered necessary by the physicians. The above Decree also covers the provision and renewal of prosthetic appliances and surgical supplies, as well as plastic surgery in the event of a mutilation which has deformed their physical aspect, or made their reintegration into active life more difficult.

The Committee notes this information. It also notes the comments made on this point by the General Union of Workers to the effect that nursing care at home and certain dental supplies, such as prosthetic appliances, are not covered by the insurance scheme and are entirely at the expense of the persons concerned. The Committee therefore requests the Government to state whether the above care, as well as the supply of eye glasses, are included in the care mentioned in section 11 of the Decree of 1967 and provided free of charge and, if not, to take the necessary measures to give full effect to the Convention in this respect.

(b) Article 36 (in relation with Article 65, paragraph 10). In reply to the Committee's previous comments concerning the manner in which, in law and in practice, the readjustment is ensured of the pensions provided to the victims of employment injuries in the event of permanent incapacity, or to their survivors, in the event of their death, the Government states that this adjustment is provided for by the social security legislation and in particular by Act No. 26 of 31 July 1985. It adds that, following an agreement with the central trade union organizations in February 1990, pensions are adjusted annually on the basis of the consumer price index for the previous year. Furthermore, insured persons who are receiving long-term benefits are paid 14 monthly pensions per year. The Committee notes this information with interest. It also notes the comments made on this point by the General Union of Workers and hopes that the Government will continue to undertake - even beyond 1993, when the agreement with the central trade union organizations expires - the adjustment of long-term benefits taking into account in so far as possible increases corresponding to the real annual inflation rate. The Committee also hopes that the Government will supply detailed information on this matter, including statistics as requested in the report form adopted by the Governing Body on the application of the Convention.

2. The Committee also requests the Government to supply additional information on the following matters:

(a) Part IV of the Convention (Unemployment benefit), Articles 23 and 24. The Committee has examined the new legislation respecting unemployment which was supplied by the Government, namely Act No. 22 of 30 July 1992 respecting urgent measures to promote employment and protect against unemployment. It also notes the information supplied in the report concerning this Act and notes the comments made on the subject of the application of the Employment Policy Convention, 1964 (No. 122), by the General Union of Workers and the Trade Union Confederation of Workers' Commissions. The Committee notes that the above Act provides, among other measures, for stricter qualifying periods for entitlement to unemployment benefit (the qualifying period has been increased from six months to one year or to 360 days of contribution) while reducing the amount of the benefits. Similar changes also concern the conditions for the duration of the provision of the benefits, which varies between 120 days (for a contributory period of from 360 to 539 days) and 720 days (for a contributory period of at least 2,160 days). The Committee also notes that the new legislation has made a number of changes with regard to the definition of "suitable" employment, which it proposes to examine on the occasion of the Government's next report on the Unemployment Provision Convention, 1934 (No. 44), which has also been ratified by Spain. Although aware of the reasons which have led the Government to take additional urgent measures in the field of unemployment insurance, the Committee recalls that the Convention, although it does not determine the qualifying period, provides in Article 23 that unemployment benefit shall be secured at least to a person protected who has completed such qualifying period as may be considered necessary only to preclude abuse. The Committee hopes that the Government will re-examine the matter and that its next report will contain information on this subject.

(b) Part XIII (Common provisions), Article 72. In its comments on the application of the Convention, the General Union of Workers states that most of the contributions (more than 70 per cent) paid as insurance against employment injury are administered by employers' mutual benefit societies for employment injury, which are private bodies and do not allow the representatives of the protected persons to participate in their administration, contrary to the above provision of the Convention.

In the observations that it made concerning these comments, the Government states that the above mutual benefit societies, although they have the characteristics of private bodies, in fact administer public funds (made up only of employers' contributions) and are accordingly subject to the supervision carried out by the Ministry of Labour and Social Security over all public insurance institutions. This fact is confirmed, according to the Government, by the General Social Security Act of 1974 and by the General Regulations on the collaboration of the above mutual benefit societies in the management of the funds allocated to insurance schemes against employment injury (Royal Decree No. 1509 of 21 May 1976). The Government adds that the supervision of the above mutual benefit societies is entrusted by the Ministry of Labour to the General Secretariat for Social Security and that it is exercised by the various executive centres of the above institution.

The Committee notes these statements and the information supplied by the Government in its report to the effect that the persons protected participate in the administration of insurance schemes through national or provincial councils composed of representatives of the public administration, representatives of employers and of the trade union organizations concerned, despite the fact that the management of social security schemes is entrusted to a public institution regulated by Parliament.

The Committee hopes that representatives of the persons protected will also be able to participate in the administration of mutual benefit societies for employment accidents either directly, or through tripartite councils, as in the case of other public insurance institutions according to the information supplied by the Government.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the information supplied by the Government in its first report. It wishes to draw the Government's attention to, and receive further information on, the following points.

1. Part VI (Employment injury benefit).

(a) Article 34, paragraph 2, of the Convention. Please indicate whether, and by virtue of which laws and regulations, nursing care at home and dental supplies and eyeglasses are provided free of charge to victims of employment injury, in accordance with paragraph (c) and (e) of this provision of the Convention.

(b) Article 36, paragraph 2. The Committee notes that, under the terms of section 136(2) of Decree No. 2065 of 30 May 1974 approving the codified text of the General Social Security Act and its regulations, total permanent incapacity to exercise the victim's habitual occupation gives entitlement to a life annuity of 55 per cent of the remuneration taken as the basis for the calculation of benefits. Furthermore, in accordance with section 135(3) and section 136(1) of the above Decree of 1974, taken in conjunction with section 9 of Decree No. 1646 of 23 June 1972, permanent partial incapacity of at least 33 per cent gives entitlement to a lump sum equivalent to 24 months of the basic remuneration. The Committee points out in this connection that Article 36, paragraph 2, of the Convention provides that in the case of a partial loss of earning capacity likely to be permanent, or corresponding loss of faculty, the benefit shall be a periodical payment representing a suitable proportion of that specified for total loss of earning capacity or corresponding loss of faculty. It would therefore be grateful if the Government would indicate whether and, where appropriate, in what manner and under which provisions, workers who are victims of employment injury whose permanent incapacity to exercise their usual occupation is less than 100 per cent and greater than 33 per cent are entitled to a periodical payment in accordance with this provision of the Convention.

(c) Article 36 in relation with Article 65, paragraph 10. The Committee would be grateful if the Government would supply detailed information on the manner in which, in law and in practice, the readjustment is ensured of the rates of current periodical payments in respect of the permanent incapacity or death of victims of employment injury in order to take into account changes in the cost of living, in accordance with Article 65, paragraph 10, of the Convention. Please, in particular, supply all the statistical information requested in the report form adopted by the Governing Body under Title VI, Article 65.

(d) Article 38 in relation with Article 69. The Committee would be grateful if the Government would supply detailed information on the effect given in practice to section 11(c) of the Order of 13 February 1967, which provides for the termination of a widow's pension in the event of the loss or denial of paternal authority on one of the grounds set out in sections 169 and 171 of the Civil Code and in the event of absence which implies the abandonment of children. Please also supply the text of sections 169 and 171 of the Civil Code.

2. Part III (Sickness benefit), Article 18, and Part VI (Employment injury benefit), Article 38 - in relation with Article 69 (f). The Committee notes that by virtue of section 130 (b) of Decree No. 2065 of 30 May 1974, referred to above, entitlement to benefits for temporary incapacity to work can be refused, withdrawn or suspended if the incapacity has been caused or prolonged due to the "rash conduct" of the beneficiary. It requests the Government to supply detailed information on the manner in which this provision is applied in practice, in view of the fact that by virtue of Article 69 (f) of the Convention, the suspension of benefits is only authorised where the contingency has been caused by the wilful misconduct of the person concerned. Please, in particular, supply the text of any regulations or administrative measures adopted in this respect, and of any relevant judicial rulings.