European Social Charter. European Committee of Social Rights. Conclusions XVIII-1 (Belgium) Articles 1, 5, 6, 12, 13, 16 and 19 of the Charter

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1 European Social Charter European Committee of Social Rights Conclusions XVIII-1 (Belgium) Articles 1, 5, 6, 12, 13, 16 and 19 of the Charter

2 Introduction The function of the European Committee of Social Rights is to judge the conformity of national law and practice with the European Social Charter. In respect of national reports, it adopts conclusions and in respect of collective complaints, it adopts decisions. A presentation of this treaty as well as general comments formulated by the Committee figure in the General Introduction to the Conclusions 1. The European Social Charter was ratified by Belgium on 16 October 1990 and the 1988 Additional Protocol on 23 June It also ratified the revised European Social Charter on 2 March The time limit for submitting the 11 th report on the application of the Charter to the Council of Europe was 30 June 2005 (reference period: 1 January 2003 to 31 December 2004) and Belgium submitted it on 4 September This report concerned the rights forming part of the hard core provisions of the Charter: Article 1 (right to work), Article 5 (right to organise), Article 6 (right to bargain collectively), Article 12 (right to social security), Article 13 (right to social assistance), Article 16 (rights of the family), Article 19 (rights of migrants). Belgium has accepted all these articles. The present chapter on Belgium contains 27 conclusions 2 : 21 cases of conformity: Articles 1 1, 6 1-3, , , 16, ; 5 cases of non-conformity: Articles 1 2 and 3, 6 4, 12 4 and In respect of the other case, that is Article 5, the Committee needs further information in order to assess the situation. It asks the Belgian Government to communicate the answers to these questions before the 30 June The next Belgian report will concern all other rights guaranteed by the revised European Social Charter. It concerns the reference period 1 January December The report should be submitted to the Council of Europe before 31 March The conclusions as well as states reports can be consulted on the Council of Europe s Internet site ( under Human Rights. 2 The 27 conclusions correspond to the paragraphs of the articles forming the hard core accepted by Belgium, with the exception of Article 1 4, which is examined with Articles 9, 10 and 15 due to the links between these provisions.

3 Article 1 Right to work Paragraph 1 Policy of full employment The Committee takes note of the information contained in the Belgian report. Employment situation Economic growth showed down in 2001 and 2002, which resulted in sharp increase in unemployment. However, the economic situation has clearly improved: the GDP growth rate increased from 1.3% in 2003 to 2.9% in 2004 (compared to 0.9% in 2002). The inflation rate increased from 1.5% in 2002 to 1.9% in The employment rate increased from 59.6% in 2003 to 60.3% in Unemployment dropped from 8% in 2003 to 7.8% in Female unemployment increased from 8.4% to 8.8% in Youth unemployment decreased from 21% in 2003 to 19.8% in Long-term unemployment expressed as a percentage of total unemployment decreased from 48.6% in 2002 to 45.3% in Substantial regional differences still remain. In 2003, the unemployment rate stood at 5.7% in the Flanders, 10.8% in the Waloon region and 15.7% in the Brussels area. The report points out that the unemployment rate among young is particularly high in the Brussels region (35.1%) and in the Waloon region (31.8%). The Committee observes that the figures provided in the report with regard to unemployment among foreign nationals are not precise. It requests that the next report include up-dated data in respect of the unemployment rate among foreign workers, immigrants and ethnic minorities. It also asks for information on the unemployment rate of people with disabilities. Employment policy The report identifies the following main labour policy directions: training support facilitating the re-integration of jobseekers into the labour market tax incentives and reducing labour costs flexibility and mobility in the labour market promoting employment of older persons In reply to the Committee s question, the report explains that regional differences with respect to the implementation of individual action plans result from differences in economic situations as well as from implementing different employment policies. The Committee takes notes of various efforts made in order to an increase of the activity rate among older workers. As regards the problem of long-term unemployment, the federal government offers a possibility of transferring unemployment benefit or minimum social welfare allowance for the long-term unemployed person into wages. In response to the Committee s observation relating to the fact that 92.8% of the active measures are directed to Belgian nationals and only 7.2% to foreign workers (5.4% of EU nationals and 1.8% of non-eu nationals), the report states that the percentage of the unemployed is a follows: 84% are Belgian nationals and 17% are foreign workers (of which 8% are EU nationals and 9% are non-eu nationals). In a reply to another question, the report further states that in 2003, 35.3% of the long-term unemployed were offered participation in an active measure. The Committee asks to receive information on the effects of these measures in terms of placement into lasting employment. The Committee observes that according to Eurostat, the total expenditure on labour market policies represented 3.5% in 2003 and 3.3% in 2002, with the expenditures on active measures corresponding to 1% in 2003 and 0.9% in Conclusion Pending receipt of the information requested, the Committee concludes that the situation in Belgium is in conformity with Article 1 1 of the Social Charter. Paragraph 2 Freely undertaken work (non-discrimination, prohibition of forced labour, other aspects) The Committee notes the information provided in Belgium s report.

4 Conclusions XVIII-1 Belgium, Article 1 1. Prohibition of discrimination in employment The Committee considers that under Article 1 2 legislation should prohibit discrimination in employment at least on grounds of race, ethnic origin, religion, disability, age, sexual orientation and political opinion. Where a state party has accepted Article 15 2 of the Charter the Committee will examine legislation prohibiting discrimination on grounds of disability under this provision. Legislation should cover both direct and indirect discrimination, in the context of indirect discrimination the Committee recalls that it has stated that in the context of Article E of the Revised Charter: Such indirect discrimination may arise by failing to take due and positive account of all relevant differences or by failing to take adequate steps to ensure that the rights and collective advantages that are open to all are genuinely accessible by and to all (Autisme Europe v. France, Complaint No. 13/2000, decision on the merits of 4 November 2003, 52). The Law of 25 February 2003 strengthened the prohibition against discrimination on grounds of sex, race, colour, national or ethnic origin sexual orientation, civil status, birth, wealth, age, religious or philosophical convictions, health status actual or future, disability and physical characteristics. The Committee asks for information how the notion of age discrimination has been interpreted. It notes that both direct and indirect discrimination are prohibited although exceptions are made for genuine occupational requirements. It asks for examples of such genuine occupational requirements. The Committee notes that Article 19 4 of the law provides that discrimination may be proved by a situation test. The Committee asks whether this means that the burden of proof is shifted in cases where discrimination within the meaning of the law of 2003 is alleged. The Centre for Equal Opportunities and the Fight against Racism may intervene in discrimination cases (with the exception of cases involving discrimination on grounds of sex, in which case the Institute for equality between Women and Men may intervene). Public authorities and all associations with legal personality having as an objective the defence of human rights, trade unions, employers associations and associations of the self employed may also intervene in discrimination cases. The Law of 20 January 2003 as well as the Law of 25 February 2003 strengthened the powers of the abovementioned Centre. The Committee asks the next report under Article 1 2 to contain information on the activities of the Centre relevant to Article 1 2. The Committee recalls that under article 1 2 of the Charter remedies available in cases of discrimination must be adequate, proportionate and dissuasive. It therefore considers that the imposition of pre defined upper limits to compensation that may be awarded not to be in conformity with the Charter as in certain cases these may preclude damages from being awarded which are commensurate with the loss suffered and not sufficiently dissuasive to the employer. However, the Committee notes that the legislation enacted on 25 February 2003 provides for the possibility of reintegration in discrimination cases and provides for compensation to be awarded equivalent to six months pay or compensation proportionate to the damage suffered. The Committee considers that the situation is in conformity with the Charter on this point. As regards discrimination on grounds of nationality the Committee recalls that under Article 1 2 of the Charter, while it is possible for states to make foreign nationals access to employment on their territory subject to possession of a work permit, they cannot ban nationals of States party in general from occupying jobs for reasons other than those set out in Article 31 restrictions on the rights guaranteed by the Charter are admitted only if they are prescribed by law, serve a legitimate purpose and are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health or morals. The only jobs from which foreigners may be banned are therefore these that are inherently connected with the protection of the public interest or national security and involve the exercise of public authority. The previous conclusion (Conclusions XVII-1) noted that foreign nationals may not be employed in federal public service posts that directly or indirectly entail the exercise of state authority or are concerned with safeguarding the general interests of the state. The Committee found that in principle these exceptions were compatible with Article 31 of the Charter but had requested further information on the actual jobs concerned. The report states that it is not possible to give a complete list of jobs in the federal public service that are closed to non-nationals, as it is for each Ministry or organ to decide on the basis of individual jobs whether or

5 Conclusions XVIII-1 Belgium, Article 1 not the job involves the exercise of public authority. However the report states that all jobs involving the power to determine violations of legislation, the power to address warnings or commence criminal proceedings are restricted to nationals, such as functions related to health and safety at work, social security and social assistance involve such powers. The Committee notes that such an application of the definition of public authority seems overtly broad, and requests more detailed information on the situation, in particular the existence of any guidelines or such like on whether a job can be classified as involving the exercise of public authority. 2. Prohibition on forced Labour In previous conclusions the situation in Belgium had been found not to be in conformity with the Charter on the grounds that the merchant navy disciplinary and criminal code still made provision for penal sanctions for disciplinary offences even where the security of a ship or the lives or health of the people on board were not at risk, so implying compulsory labour. According to the report new draft legislation modifying the situation was approved by the Council of Minister in March The legislation when adopted will bring the situation into conformity with the Charter. Prison work The Committee recalls that work inside prisons is compulsory, whereas work performed outside a prison requires the prisoner s consent. Legislation abolishing compulsory work inside prisons (not for private enterprises) has been adopted, but has not yet entered into force. The Committee asks to be informed of its entry into force. According to the report, the conditions of work of prisoners whether working for a private enterprise or not are as close as possible to regular workers, including remuneration. The Committee invites the Government to reply to its question in the General Introduction to these Conclusions on this issue. 3. Other Aspects of the right to earn one s living in an occupation freely entered into The Committee invites the Government to reply to its question in the General Introduction to these Conclusions as to whether legislation against terrorism precludes persons from taking up certain employment. Conclusion The Committee concludes that the situation in Belgium is not in conformity with Article 1 2 of the Charter on the grounds that the merchant navy disciplinary and criminal code still makes provision for penal sanctions for disciplinary offences, and which therefore may give rise to compulsory labour even where the security of a ship or the lives or health of the people on board are not at risk. Paragraph 3 Free placement services The Committee takes note of the information contained in the Belgian report. The report provides information with regard to the Brussels region, indicating the number of vacancies (10,976 in 2003 compared to 13,296 in 2004) and the placement rate (a reduction of 76.6% in 2003 to 65.9% in 2004). No data with regard to the number of vacancies and placement rate in all the other regions of Belgium were provided. The Committee recalls that since 1995 it has deferred all its conclusions pending receipt of the information on the number of vacancies and placements made by employment services, the placement rate and the market share of the services for employment services in all the regions of Belgium. The Committee concludes that the situation in Belgium is not in conformity with Article 1 3 of the Charter on the grounds that it is not able to assess whether the right to free employment services is effectively guaranteed in all regions.

6 Article 5 Right to organise The Committee takes note of the information in the Belgian report. The Committee has made a detailed examination of various aspects of Belgian law on freedom of association in its previous conclusions and has found them to be in conformity with Article 5 of the Charter (Conclusions XIII-2, pp ; Conclusions XIII-4, pp ; Conclusions XIV-1, pp ; Conclusions XV-1, pp and Conclusions XVI-1, pp ). In this conclusion, therefore, the Committee has confined its examination to recent developments. Trade union activities In its previous conclusion (Conclusions XVII-1, p. 64), the Committee noted that there was no specific protection against discriminatory dismissal. In the specific case of blue collar workers, under Section 63 of the Contracts of Employment Act, the burden of proof lies with the employers while workers who have been wrongfully dismissed are entitled to a lump-sum payment equivalent to six months pay (irrespective of any compensation in lieu of notice). The Committee considers that in the event of a violation of the prohibition of discrimination, domestic law must provide for sufficiently dissuasive sanctions for the employers and appropriate damages for the workers, which is not consistent with a predetermined ceiling on the amount of compensation payable to victims of discriminatory dismissal (Conclusions 2004, Bulgaria, Article 5, p. 32). It wished to know whether blue collar workers who could prove that the damage suffered as a result of discriminatory dismissal was higher than the six months pay lump-sum payment were entitled to compensation proportional to the real damage, pursuant to the general tort liability system. The report does not provide the requested information. The Committee reiterates its question. It also points out that if the information does not appear in the next report, there will be nothing to show that Belgium is in compliance with the Charter in this respect. The Committee also asked what protection was available to employees against anti-trade union discrimination in areas other than recruitment and dismissal. The report states that the general legislation to protect the right of association, the safeguards in the Belgian Constitution (economic and social rights and in particular Article 23 of the Constitution), the legislation against psychological harassment and the Act of 25 February 2003 designed to combat discrimination provide judicial remedies for employees who are the victims of discrimination. The Committee notes that none of these texts is specifically concerned with anti-trade union discrimination (the Freedom of Association Act of 1921 deals with association in general). It therefore again asks what protection is available to employees against anti-trade union discrimination in areas other than recruitment and dismissal. The Committee points out that if this information does not appear in the next report, there will be nothing to show that Belgium is in compliance with the Charter in this respect. Representativity The Committee has examined the criteria for representativity of trade unions and employers' organisations in the public sector and found them to be in conformity with Article 5 (Conclusions XV-1, pp ). In the private sector, under the Collective Agreements and Joint Committees Act of 5 December 1968, an organisation's representativity determines whether it can participate in collective bargaining. It also determines whether it can take part in the industrial consultation process in the official consultative bodies. Under Section 3 of the Act of 5 December 1968, the following are considered to be representative organisations: 1. cross-sectoral employee organisations operating nationally and represented on the Central Economic Council and the Labour Council; such employee organisations must also have at least 50,000 members; 2. cross-sectoral organisations affiliated to or part of a cross-sectoral organisation which meets the above conditions; 3. employers' organisations that have been declared by the Crown, on the advice of the National Labour Council, to be representative in a particular branch of activity. In order to be represented on the joint committees, an organisation which meets these conditions must further have been designated by the government (Section 42 of the 1968 Act). The National Labour Council is composed of equal numbers of members from the most representative trade unions and employers' organisations, appointed by the Crown. The members are selected from double lists of candidates presented by the most representative national trade union federations and employers' organisations (Section 2.2 of the Institutional Act of 29 May 1952 establishing the National Labour Council). The legislation does not specify the criteria governing the Crown's choice of organisations to be represented on the Council.

7 Conclusions XVIII-1 Belgium, Article 5 According to the case-law of the Cour d'arbitrage, in particular its decision No. 70/2002 of 18 April 2002, even though they are broad and imprecise, the powers granted to the Crown do not permit any exceptions to the principle that when differences of treatment between certain categories of person are authorised by a statute or regulation, the decision must be based on objective and reasonable grounds, having regard to the aim and effects of the legal rule under consideration. The administrative courts are empowered to overrule decisions in which the Crown accepts or rejects trade union nominations on the basis of unlawful or discriminatory interpretations of the notion of representativity. The Committee asked whether the Conseil d Etat had already been seized with such a request. The report states that in its decision No of 22 December 1987, the Conseil d Etat held that if the trade unions permitted to take part, on a consultative or other basis, in the life of the Belgian legal system are ones which belong to the main traditional political groups, it does not follow that the criteria used to assess representativity, which is a statutory requirement for such participation, are necessarily contrary to the wishes of the legislator; that the notion of representative employee organisation must be interpreted according to the tradition whereby representativity, the condition for allowing certain private organisations to play an official role within the legal system, involves granting approval based not only on the factual assumption that an organisation is the faithful spokesperson of those it claims to represent, but also on a judgment as to expediency; that the same applies to most representative organisations status; that the aforementioned provisions of the Institutional Act establishing the National Labour Council leave it to the Crown to decide which organisations should be recognised as being the most representative, provided they are cross-sectoral and federated at national level; that in instructing the minister to invite the most representative organisations referred to by the Institutional Act to submit lists of candidates from which the Council members will then be appointed, without otherwise specifying how these organisations are to be defined, the Crown is giving the minister the power to decide that certain organisations are not among the most representative; that if the Crown and the minister cannot exercise their discretionary power, however broad, without enabling the Conseil d Etat to discover from the file on what grounds they made their decision and to assess whether these grounds are legally admissible and not contrary to the facts, they must, if they see fit, impose further requirements, in addition to those prescribed by law. The Committee recalls that to be compatible with Article 5 the criteria must be pre-established, clear and objective (Conclusions XV-1, France, Article 5, p. 247). If, as in the case of Belgium, the criteria are not laid down in legislation, it is for the state concerned to show that such criteria are part of established case-law. Since this decision predates the aforementioned decision of the Cour d arbitrage, which expressly states that the powers granted to the Crown do not allow it to beach the principles of equality and non-discrimination or to ignore the repeated recommendations of the International Labour Organisation (ILO, Official Bulletin, Vol. LXX, 1987, Series B, No. 2, p. 24), the Committee wishes to know whether the Conseil d Etat has been asked to examine applications since Scope ratione personae The report indicates that during the reference period, there was a change in the law concerning the freedom of association of military personnel. The Act of 11 July 1978 governing relations between the public authorities and trade unions for military personnel, as amended by the Acts of 1 September 1980, 21 April 1994, 24 March 1999, 2 August 2002, 16 January and 27 March 2003, states in Section 1 2 that military personnel may join either a trade union for military personnel, or a trade union affiliated to a trade union represented on the National Labour Council. Section 12 of this same Act sets out the conditions for approving trade unions. In order to be approved, a trade union must defend the interests of all categories of military personnel, former military personnel or their dependants, operate at national level and not pursue any object that would impede the functioning of the armed forces. The Committee considers that this situation is in conformity with the Charter. Conclusion Pending receipt of the information requested, the Committee defers its conclusion.

8 Article 6 Right to collective bargaining Paragraph 1 Joint consultation The Committee notes from the Belgian report that there have been no changes to the situation, which it has previously considered to be in conformity with the Charter. It wishes the next report to provide updated information on joint consultation between employees and employers at national, regional/sectoral and enterprise level in the private as well as the public sector, including the civil service. The Committee concludes that the situation in Belgium is in conformity with Article 6 1 of the Charter. Paragraph 2 Negotiation procedures The Committee notes from the Belgian report that there have been no changes to the situation, which it has previously considered to be in conformity with the Charter. The Committee concludes that the situation in Belgium is in conformity with Article 6 2 of the Charter. Paragraph 3 Conciliation and arbitration The Committee notes from the Belgian report that there have been no changes to the situation, which it has previously considered to be in conformity with the Charter. The Committee concludes that the situation in Belgium is in conformity with Article 6 3 of the Charter. Paragraph 4 Collective action The Committee takes note of the information provided in the Belgian report. Meaning of collective action - Permitted objectives of collective action - Who is entitled to take collective action? The Committee has already assessed the meaning and permitted objectives of collective action and the question who is entitled to take collective action in its Conclusions XV-1 and XVI-1. The Committee notes that in the absence of any legislative intervention, the legal framework governing the right to strike in Belgium appears to be unclear and uncertain. Restrictions on the right to take collective action The Committee held in Conclusions XVI-1, that the situation in Belgium was not in conformity with Article 6 4 on the grounds that several judicial practices restrict the exercise of the right to strike beyond the restrictions accepted in Article 31 of the Charter. The judicial practices at issue are i. judgments, delivered on urgent (civil law) applications, forbidding with coercive penalties strike pickets, classed as forcible methods even if the pickets do not engage in any physical violence, threat or intimidation, ii. judgments which rule on the strike itself and may prohibit, even as a preventative measure, a strike on the grounds it amounts to an abuse of rights accompanied by criminal penalties and iii. judgments delivered under urgent procedure, imposing a preventive ban on strikes with a coercive penalty. The Committee noted in its previous conclusion that in 2001 there was a statement by the Government announcing the government s intention to legislate in this area, and specifically to table a bill to reform the Judicial Code for the express purpose of ending the infringements of the European Social Charter, invoking the need to avert disturbance to the normal course of labour-management relations through the judiciary s intervening in collective labour disputes. The industrial partners nevertheless preferred to set out their conception in a Protocol on the settlement of collective disputes which was approved by the trade union and employers bodies in April 2002 and according to which the employers organisations undertake to enjoin their members from instituting court proceedings on issues relating to a collective dispute, while the trade unions have undertaken to deter their members from recourse to physical violence or property damage in connection with collective disputes and to urge that they ensure the preservation of the production apparatus. The Committee observed in its previous conclusion that following introduction of the abovementioned Protocol the judicial practices found not in conformity with the Charter were frozen. However, as far as the current reference period is concerned, the Committee notes that the intervention of the courts on the occasion of strike action occurred even though, according to the report, rarely and in the event of particularly serious collective conflicts. The report refers in this respect to an analysis published by the Center for research and Social-political Information of a strike in the enterprise ACG Automotive which lasted from December 2004 to March 2005

9 Conclusions XVIII-1 Belgium, Article 6 and during which the management obtained, upon a unilateral civil law application, an injunction by the local court, forbidding with coercive penalties strike pickets. According to the facts presented in this analysis and the assessment made therein the application was not based on any objective reasons and was contrary to the recommendations described in the aforementioned Protocol. The Committee considers that there is still an incidence of restrictions to the right to strike following from the abovementioned judicial practices that go beyond those permitted by Article 31 of the Charter. For this reason and by taking into account that there are no statutory safeguards under Belgian law regulating the limits of possible restrictions to the right to strike, the Committee holds the situation not to be in conformity with the Charter. Consequences of collective action The Committee has assessed the principal decisions that form the case law of the Court of Cassation in relation to the consequences of the strike for the employment contract in its previous conclusion. The Committee recalled that it has always considered that Article 6 4 of the Charter implies that a strike, not only has the effect of suspending a contract of employment, but also that it prohibits in a sufficiently deterrent manner to dismiss striking workers. Since Belgian law does not prohibit the dismissal of workers because of their participation in a strike, the Committee previously considered the situation not to be in conformity with Article 6 4. It notes that the situation has not changed during the reference period. Conclusion The Committee concludes that the situation in Belgium is not in conformity with Article 6 4 on the following grounds: restrictions to the right to strike resulting from judicial decisions go beyond the restrictions admitted by Article 31 of the Charter; internal law does not sufficiently prohibit the dismissal of workers as a result of their participation in a strike.

10 Article 12 Right to social security Paragraph 1 Existence of a social security system The Committee takes note of the information provided in the Belgian report. The Committee recalls (Conclusions XVII-1, p. 71) that it previously found the situation to be in conformity as regards the number of branches of the social security system and its coverage of the population. The system is based on collective funding as it is funded by contributions (employers, employees and the state) and also by the State budget. Distinct social security schemes exist respectively for employees, self-employed and civil servants, but they are broadly similar. Medical care, sickness and maternity benefits are part of the compulsory social insurance scheme for employees. Employees shall have worked for a period of 120 days during the previous six months to obtain benefits. The benefits rely on the principle of the continuation of payment of wages and salaries by the employer. The payment of sickness benefit starts when the guaranteed salary period is over, i.e. after one month for employees, and may last up to one year. The benefit paid by the employer amounts to 100% of the salary for the first seven days, to about 87% from the 8 th to the 14 th day, and to about 27% from the 15 th to the 31 st day. When the social insurance institution steps in (from the 15 th day) it pays 60% of the salary up to a ceiling of 62 per day to employees with dependants or for persons with in other sources of income. From the second month on the benefit remains 60% of the salary for employees with dependants or for persons with no other source of income, and 55% for the rest. Family benefits are continued during sickness periods. For the unemployed the sickness benefit during the first six months should not exceed the unemployment allowance he would have normally received if he/she was in good health. After one year of sickness benefits, beneficiaries become entitled to invalidity allowances. Their level depends on of the family situation and of their income-replacement role; the indemnity rate is 65% of the previous income for a beneficiary with dependants and 40%-50% for beneficiaries without dependants. The report indicates that allowances are provided to regular workers, i.e. a worker who worked for a certain amount of hours at a daily average salary. The minimum level of the invalidity daily allowance was, in 2005, 38.7 for employees with a family, 31.2 for single employees, and 27.7 for couples living together. The Committee considers these amounts to be adequate in comparison with the poverty threshold defined as 50% of median equivalised income and as calculated on the basis of the Eurostat at-risk-of-poverty threshold value, which in 2003 was Those who could not be considered regular workers are at any event entitled to a minimum daily invalidity allowance whose amount is equal to the minimum subsistence level, i.e for persons with dependants, and 23.7 for single persons in The Committee examines maternity benefits under Article 8 (Conclusion XVII-2, p. 66). The Committee notes that the report does not provide information on unemployment benefits. It observes from another source 1 that unemployment insurance is a compulsory scheme for employees with an incomereplacing function. Conditions for receiving unemployment benefit are: an insurance period within the last months according to the age; not exercising any activity; being involuntary unemployed (in cases of persons who caused their unemployment themselves they can obtain allowances after a period of exclusion); being available for placement; being fit for work; and being resident in Belgium. Available persons are those ready to accept every job that can be considered appropriate. The Committee refers to its previous conclusion under Article 1 2 with regards to the meaning of appropriate (Conclusions XVII-1, Belgium, Article 1 2, p. 57) and it recalls that it found the situation to be in conformity with the Charter. Since 2004, there is a systematic follow-up of job-seekers and those who refuse a contract with regard to active job seeking or who do not respect it may be sanctioned with the suspension of benefits. There is no limit to the duration of unemployment benefit with the exception of specific cases of very long-term unemployment. The Committee notes that, in 2004, the level of unemployment benefit represented 40% of the average day salary with a maximum ceiling of This percentage remains the same for the whole unemployment period for employees with a family, while it decreases for single employees and couples living together. The basic percentage may be completed with additional percentage such as the adaptation allowance during the first year (15%), as allowance for loss of sole income (5%), the family supplement (15%) accordingly to the individual situation. 1 Federal Public Service Social Security, Everything you have always wanted to know about social security, 2004, p. 34, in

11 Conclusions XVIII-1 Belgium, Article 12 The Committee notes from MISSOC 1 the minimum level of unemployment benefits for the three different categories (families, single persons, and couples living together) and it notes that they are above the poverty threshold defined as 50% of the median equivalised income and as calculated on the basis of the Eurostat atrisk-of-poverty threshold value, which in 2003 was The minimum level benefit for couples ( 20 per day excluding Sunday) is the only benefit in between 40% and 50% of the poverty threshold as defined above, but taking into consideration the additional percentages available, the Committee considers it adequate. The report indicates that the old-age pension is provided subject to the double condition of age and inactivity. The 1996 reform of the pension system progressively increased the retirement age to 65 years. Old-age pension consists of a percentage (60% or 75%) of the gross salary for the number of years worked up to an annual ceiling of 40,898.3 in According to the report, in 2003 the monthly minimum old-age pension for a complete career was (household rate) and (single rate). If the pension obtained through the calculation is too low, it is proportionally integrated by the guaranteed income for elderly people (GRAPA), which under these circumstances is considered part of social security (see Conclusions XIV-1, p. 111). The GRAPA annual basic amount was 5,365 in 2004 and the integration is calculated on the basis of the pensions and the assets in the household. The Committee asks whether there is a minimum threshold which the aggregation of the pension and the GRAPA integration must reach. Survivors pension is provided to widows or widowers and their children. If the dead person was already retired its amount corresponds to 80% of the old-age pension; if s/he was active to 60% of the salary. The minimum pension was monthly in Finally, the work accidents and occupational diseases scheme is compulsory. Employment injury benefits are granted for temporary and permanent incapacity for work. When a worker is prevented fully from work for a certain period, s/he receives 90% of her/his average day salary. In case of permanent incapacity of work, the worker receives an annual allowance on the basis of the previous salary and the degree of incapacity. The Committee recalls that the scope and level of family benefits are assessed under Article 16. The Committee concludes that the situation in Belgium is in conformity with Article 12 1 of the Charter. Paragraph 2 Maintenance of a social security system at a satisfactory level at least equal to that required for ratification of International Labour Convention No. 102 The Committee notes from Resolution Res CSS(2005)1 of the Committee of Ministers on the application of the European Code of Social Security by Belgium (period from 1 July 2003 to 30 June 2004) that Belgium continues to give full effect to the parts of the Code which it has accepted, subject to receiving certain additional information (extension of the Global Medical Record scheme to the whole population, the meaning of the notion of ordinary residence as regards unemployment benefits, and supplementary pensions). In so doing, Belgium maintains a social security system that meets the requirements of ILO Convention No The Committee concludes that the situation in Belgium is in conformity with Article 12 2 of the Charter. Paragraph 3 Development of the social security system The Committee takes note of the information provided in the Belgian report. During the reference period, legislation amending the social security system was adopted. In 2003, child-minders were entitled to participate in the social security scheme. Helping spouses are compulsory submitted to the sickness, invalidity and maternity schemes and may subscribe voluntarily to the full social protection scheme for self-employed persons. Amendments were also carried out to the 1994 Act on compulsory health insurance and allowances. They concerned the introduction of a minimum daily allowance for both sickness benefits and invalidity allowance; changes in the reimbursement rate of medical costs, including the extension of the age limit for reimbursement of medical expenses for disabled children and the increase in the maximum reimbursement rate for long stays in hospital. The Global Medical Record scheme was also enlarged and simplified (see Conclusions XVI-1, p. 72). The Committee asks what is the population s coverage of this system. The Committee also notes that benefits are adjusted yearly on the basis of developments in the price index. The Committee concludes that the situation in Belgium is in conformity with Article 12 3 of the Charter. 1 European Commission publication, MISSOC, Social Protection in the 25 Member States of the European Union, in the European Economic Area, and in Switzerland, Situation on 1 May 2004, Comparative Tables,

12 Paragraph 4 Social security of persons moving between states The Committee takes note of the information provided in the Belgian report. Conclusions XVIII-1 Belgium, Article 12 The Committee notes that relations with the other member states of the enlarged EU in the field of social security are governed by Regulation (EEC) No. 1408/71 and Regulation (EEC) No. 574/72. During the reference period Regulation (EC) No. 859/2003 entered into force. The Committee notes that this regulation makes Regulation No. 1408/71 applicable to third country nationals, as well as to their family members, provided that they are legally resident in the territory of a Member State and are in a situation which is not confined in all respects within a single Member State (Article 1). This means that EU member States must guarantee to at least those nationals of other States party to the Charter and to the Revised Charter equal treatment with respect to social security rights provided they are legally resident. The Committee asks the next report to provide information about the extension in practice of the equal treatment principle to the third country nationals. As regards the other States party to the Charter or to the Revised Charter not covered by Community legislation, during the reference period, bilateral agreements existed with Croatia, the former Yugoslav Republic of Macedonia, and Turkey. According to the report, these agreements ensure equal treatment, retention of accrued benefits and aggregation of insurance or employment periods. In addition, Belgium has ratified the European Convention of Social Security thereby securing its commitment to aggregation of insurance or employment periods towards non-nationals. As regards the payment of family benefits, the Committee considers that according to Article 12 4, any child resident in a defined country is entitled to the payment of family benefits on an equal footing with nationals of the country concerned. Therefore, whoever is the beneficiary under the social security system, i.e. whether it is the worker or the child, state Parties are under the obligation to secure through unilateral measures the actual payment of family benefits to all children residing on their territory. In other words, imposing an obligation of residence of the child concerned on the territory of the state is compatible with Article 12 4 and its Appendix. However, since not all countries apply such a system, states applying the 'child residence requirement' are under the obligation, in order to secure equal treatment within the meaning of Article 12 4, to conclude within a reasonable period of time bilateral or multilateral agreements with those states which apply a different entitlement principle. The Committee therefore asks the next report to indicate whether such agreements exist or are planned with the following countries: Albania, Armenia, Georgia and Turkey. The Committee recalls that in its previous conclusion (Conclusions XVII-1, p.72) it found the situation not in conformity as regards equal treatment with respect to the payment of the disability allowance because nationals of other States party not members of the EU were subject to the additional condition that they must have previously received a benefit until they reached the age of 21. The report indicates that the Government has considered removing the nationality condition for entitlement to this benefit. However, financial constraints prevented this being enacted. The Committee therefore finds the situation not to be in conformity since equal treatment is not guaranteed to nationals of other parties to the Charter or to the Revised Charter not covered by Community regulations or bilateral agreement. The Committee asks information on whether there are length of residence or employment requirements conditions imposed on non-eu/eea nationals of States party to the Charter or the Revised Charter for receipt of social security benefits. As regards family benefits the Committee refers to its conclusion under Article 16 in particular it notes that the length of residence requirement no longer applies for receipt of guaranteed family benefit. The Committee recalls that in its previous conclusion (Conclusions XVII-1, p.72) it found the situation not in conformity as regards equal treatment with respect to exportability of benefits for nationals of other States party which were uncovered by Community regulation or any agreement. In particular, it clarified that as regards exportability of benefits the obligations entered into by the States party must be fulfilled irrespective of any other multilateral social security agreement that might be applicable (Conclusions XVI-1, p. 74). The report indicates that the situation did not change. Such countries are currently Albania, Andorra, Armenia, Azerbaijan, Bulgaria, Georgia, Moldova, and Romania. The Committee therefore finds the situation not to be in conformity with the Charter. The Committee concludes that the situation in Belgium is not in conformity with Article 12 4 of the Charter on the following grounds: equal treatment as regards the payment of disability allowance is not guaranteed to nationals of States party not covered by Community regulations or bound by agreement with Belgium; the legislation does not provide for retention of accrued benefits when persons move to a state Party not bound by Community regulations or by agreement with Belgium.

13 Conclusions XVIII-1 Belgium, Article 12 In accordance with Article of the Committee s Rules of Procedure, a dissenting opinion by Mr Jean- Michel BELORGEY, joined by Mr Nikitas ALIPRANTIS, Mrs Csilla KOLLONAY-LEHOCZKY and Mr Lucien FRANÇOIS, is appended to these conclusions. A dissenting opinion by Mr Tekin AKILLIOGLU is also appended.

14 Article 13 Right to social and medical assistance Paragraph 1 Adequate assistance for every person in need The Committee takes note of the information provided in the Belgian report. The Committee has previously examined in detail the right to social assistance enshrined in the Act of 8 July 1976 on Public Social Assistance Centres (PSACs) (Conclusions XIII-4, pp ) as well as the entitlement to a social integration allowance introduced by the Act of 26 May 2002 on the right to social integration (Conclusions XVII-1, pp. 75 et seq.). Types of benefit and eligibility criteria One of the categories of social assistance beneficiaries including the social integration allowance (as previously established by Belgian law is the cohabitant. Under Article 14 1 of the Act of 26 May 2002, what is meant by cohabitation is a situation in which people live together under the same roof and mainly settle household matters together. The social integration allowance of those who fall into this category is substantially reduced (see below). The Committee notes that the existence of this category has the effect of denying those concerned their individualised right to social assistance. Calls for this status to be done away with as part of social assistance and unemployment policy have been made in the General Reports on Poverty in Belgium, in 1994 and 1995, 1 and by the Committee on Economic, Social and Cultural Rights of the United Nations 2. The Committee would also point out that under Article 13 1 of the Charter taken together with Article E, the right to social assistance must be enjoyed by everyone without discrimination on the ground of gender. However, the effect of the rule described may be discriminatory towards women if they make up the majority of the cohabitants. The Committee asks for the Government to comment on the subject and in particular to explain how it justifies maintaining the status of cohabitant in the area of social assistance and what proportion of men and women are cohabitants. Persons aged over 63 (to be gradually raised to 65 by the year 2009) are entitled to the guaranteed income for the elderly (GRAPA). This benefit has, since the law of 22 March 2001, superseded the elderly persons guaranteed income (RGPA). The Committee previously decided to deal with this benefit under social security "inasmuch as it complements a [retirement or survivor's] pension" (Conclusions XIV-1, Belgium, Article 12 1, pp ). Given that Belgium has not accepted Article 23 of the Revised Charter (the right of elderly persons to social protection), the Committee decides to deal with the GRAPA under the heading of social assistance when it is paid to elderly persons without adequate resources, particularly because they are not entitled to retirement or survivor's pension. Level of assistance To assess the situation during the reference period, the Committee takes account of the following information: basic benefit: in 2004, the monthly integration allowances were as follows: 595 for persons living alone and 793 for couples with or without children and single-parent families. For a cohabiting person, the figure was 396. Family allowances are paid in addition to these amounts. The maximum guaranteed income for the elderly in 2004 was 5,365 per year ( 447 per month) for cohabiting persons (basic rate), and 7, per year ( per month) for persons living alone (higher rate); supplementary benefits: PSACs can provide additional social assistance where integration allowances are not sufficient to maintain a decent standard of living. Under the 1976 Act (Section 57), this assistance can be provided in the form of material, social, medical, medico-social or psychological support, and is assessed on a case-by-case basis according to the recipient s needs. It may consist of benefits in kind (food, housing, heating, etc.) or financial help to cover major health costs, a rental deposit and so on; medical assistance: recipients of the guaranteed income and social assistance are entitled to full reimbursement of medical expenses (Conclusions XIV-1, pp ). It also notes from MISSOC 3 that there is a system of free voluntary health insurance in Belgium and asks for more detailed information on the subject; the poverty threshold, defined as 50% of median equivalised income and as calculated on the basis of the Eurostat at-risk-of-poverty threshold value: estimated at per month in Consulted on the Internet site of the Belgian Public Service for Social Integration ( 2 E/C.12/1/Add.54, 1 December 2000 ( 3 Publication of the European Commission, MISSOC, Social Protection in the Member States of the European Union, of the European Economic Area and in Switzerland, Situation on 1 May 2004, comparative tables (