Articles Originally Presented at the EISS Conference on ‘Choice in Social Security’ in Graz 2003: Freedom of Choice in Europe's Social Security Law
| Published date | 01 December 2003 |
| Author | Danny Pieters |
| Date | 01 December 2003 |
| DOI | 10.1177/138826270300500402 |
| Subject Matter | Article |
FREEDOM OF CHOICE IN EUROPE’S SOCIAL
SECURITY LAW
Danny Pieters*
Abstract
In the first part of this article, an inventory of the various types of choice that may be
present in social security is outlined. In the second part, starting from the
assumption that there is freedom of choice, the question of whose freedom of choice
this is is addressed. Although neither national law nor international law recognises
the principle of freedom of choice in social security, a concrete form of freedom of
choice may be inferred from international human rights instruments and this is
explored in the third part of the article. In the fourth and final part, the relationship
between freedom of choice and social security is examined and the question of
whether they are they friends or foes posed.
INTRODUCTION
The Annual Conference of the European Institute of Social Security, held
this year in Graz, dealt with Freedom of Choice in Social Security. When
discussing this topic from a legal perspective, one may be tempted to narrow
it down to issues related to fair competition. However, in the belief that
freedom of choice goes far beyond the issue of competition, the topic is
examined here from a completely different perspective.
1. INVENTORYING THE TYPES OF CHOICE WHICH MAY BE
PRESENT IN SOCIAL SECURITY
Defining ‘social security’ as the set of arrangements that shapes the nature of
solidarity with people facing the threat of or lack of income from paid
employment or additional costs arising on account of their circumstances
ARTICLES ORIGINALLY PRESENTED AT THE EISS CONF ERENCE ON
‘CHOICE IN SOCIAL SECURIT Y’IN GRAZ 20 03
European Journal of Social Security, Volume 5 (2003), No. 4 287
* Professor of Social Security Law and Secretary General of the European Institute of Social
Security, Institute of Social Law, Catholic University of Leuven, 43 Tiensestraat, Leuven,
Belgium. E-mail: Danny.Pieters@law.kuleuven.ac.be. He would like to express his gratitude to
his colleague Paul Schoukens for his critical reading of an earlier version of this article.
288 Intersentia
and the response to recognised social risks
1
and defining ‘choice’ as the
selection of one option from several available alternatives, we can rephrase
the topic of our interest as the extent to which we are confronted with
various possible options as to:
i) the degree of solidarity;
ii) the risks that are recognised and need to be covered; and
iii) the nature of the institutional arrangements.
If we add the fact that social security always needs to be administered, we
have the four focal points around which the elements of choice that may or
may not be present in relation to social security can be analysed. Although
each of them is examined in turn, it should be borne in mind that they are
intrinsically interconnected.
1.1. The degree of solidarity
It should go without saying that, when someone can choose whether or not
to take part in a solidaristic arrangement, choice is maximised. In other
words, schemes that are optional, rather than compulsory, and schemes that
allow people to ‘opt out’, maximise choice from this perspective. In the case
of opting out, the degree of freedom may vary: the law may give the person
the freedom not to cover the social risk(s) in question or may link the
freedom to opt out of one scheme to an obligation to take up an alternative
scheme for covering the risk(s). The alternative scheme may be a private one
involving commercial insurance, saving accounts, or even real estate.
Likewise, the degree of freedom involved in ‘opting in’ to a statutory scheme
may be restricted. This is, for example, the case when a person can choose
whether or not to join a pre-established statutory scheme. Examples are the
scheme covering the first period of incapacity for work in Denmark or for
covering minor health risks experienced by self-employed persons in
Belgium.
A rather peculiar form of opting out is provided in The Netherlands to (very
religious) people who have principled objections to any form of insurance,
including social insurance. When exemption from social insurance is
granted to people in these circumstances, they are not required to pay any
social security contributions but an equivalent amount of income tax is
levied instead. In this way abuse is prevented and the reason for objecting in
principle respected.
2
Danny Pieters
1
Cf. the chapter on the concept of social security in PIETERS, D (1993), Introduction into he Basic
Principles of Social Security, Deventer and Boston: Kluwer Law International, 1-8.
2
Art. 19 e.v. Wet financiering volksverzekeringen; Art. 17 e.v. Coo
¨rdinatieWet Sociale
Verzekeringen.
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