Resolution ResCSS(2006)10
on the application of the European Code of Social Security and its Protocol
by the Netherlands
(Period from 1 July 2004 to 30 June 2005)

(Adopted by the Committee of Ministers on 6 September 2006
at the 972nd meeting of the Ministers’ Deputies)

The Committee of Ministers,

In the exercise of the functions conferred upon it by Article 75 of the European Code of Social Security (hereinafter referred to as the “Code”), as modified by the provisions of its Protocol (hereinafter referred to as the “Protocol”), and with a view to supervising the application of these two instruments by the Contracting Parties;

Whereas the Code and the Protocol, signed on 16 April 1964, entered into force on 17 March 1968 and since that date have been binding on the Netherlands, which ratified them on 16 March 1967;

Whereas, when ratifying the Code and the Protocol, the Government of the Netherlands stated that it accepted, in addition to the parts which must be applied by every Contracting Party (Parts I, XI, XII, XIII and XIV), the following parts of the Code, as modified by the Protocol:

– Part II on “medical care”,
– Part III on “sickness benefit”,
– Part IV on “unemployment benefit”,
– Part V on “old-age benefit”,
– Part VI on “employment injury benefit”,
– Part VII on “family benefit”,
– Part VIII on “maternity benefit”,
– Part IX on “invalidity benefit”,
– Part X on “survivors’ benefit”;

Whereas, in pursuance of paragraph 1 of Article 74 of the Code, as modified by the Protocol, the Government of the Netherlands submitted its 38th annual report on the application of the Code, as modified by the Protocol, for the period from 1 July 2004 to 30 June 2005;

Whereas, in accordance with paragraph 4 of Article 74, that report was examined by the ILO Committee of Experts on the Application of Conventions and Recommendations, at its 76th meeting in November and December 2005,

Notes:

I. concerning Part III (Sickness benefit) of the Code in relation to Articles 70 and 71 (Private insurance in sickness and disability schemes), that for a number of years the Committee of Ministers has been questioning the reforms making the employers liable for the payment of the sickness and disability benefits under certain conditions, in view of the breach opened in the collective nature of social security funding, the abandonment of the participatory management of social security schemes and the risk of discrimination of workers with a history of medical problems. In reply to these concerns, the government has provided an in-depth explanation of its strategy and reform policies, highlighting the principles upon which the new design of the sickness and disability schemes is based and the problems in their practical implementation. According to the government, the final element of the reforms of the past few years will be put in place by the revision of the current Disability Benefits Act (WAO) by the new Work and Income (Capacity for Work) Act (WIA), which will enter into force from 1 January 2006. The Committee of Ministers will reassess the compatibility of the Dutch sickness and disability schemes, including privatisation trends, with the corresponding provision of the Code, once it has full knowledge of the new legislation;

II. concerning Part IV (Unemployment benefit) in conjunction with Article 68.f that this article of the Code authorises suspension of benefit only where the contingency has been caused by the wilful misconduct of the person concerned;

III. concerning Part VI (Employment injury benefit), that there is close technical co-operation between the Dutch Government and the ILO in the area of the ongoing reform of the disability benefit scheme giving effect to Part VI of the Code. According to the report, pending this reform, the government has suspended the decision about the ratification of the revised Code, which allows states whose insurance systems have abandoned the concept of employment injury to meet the required standards of protection through compensatory benefits provided under other branches of social security. The Committee of Ministers will reassess the application of this part of the Code, as amended by the Protocol, once it has full knowledge of the new legislation adopted in the reform process;

The Committee of Ministers observes that for a number of years the reports of the government did not state, as required in Question IV of the report form on the Code, whether courts of law or other courts have given decisions involving questions of principle relating to the application of the accepted parts of the Code;

Finds that the law and practice in the Netherlands continue to give full effect to Parts II, IV, V, VII, VIII, IX and X of the Code, and that they also ensure the application of Parts III and VI, subject to the points mentioned below;

Decides to invite the Government of the Netherlands:

I. concerning Part IV (Unemployment benefit) in conjunction with Article 68.f and further to its previous comments, to provide detailed explanations and the text of the internal rules followed by the deciding officers in applying sanctions to claimants of unemployment benefit who are deemed to be “culpably unemployed” or “predominantly to blame for her or his unemployment”, as well as statistics on the number of cases in which such sanctions were applied and appealed by the claimants;

II. with regards to the requirement in Question IV of the report form on the Code, taking into account that the 2006 report shall be a detailed one, to review under each part of the Code, as amended by the Protocol, the recent jurisprudence of the relevant national courts, including the Central Court of Appeal in Utrecht (Centrale Raad van Beroep), which is the highest court in the Netherlands for social security matters.



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