Article 13: The Right to Social and Medical Assistance

Article 13 firstly obliges the contracting parties to provide social and medical assistance to those who have insufficient resources and are unable to obtain those resources without help343. It then states that those persons who are in receipt of assistance benefits must not suffer any reduction in their social and political rights simply because they are receiving social and/or medical assistance344. It further states that contracting parties must also ensure that public and private services are available to help prevent, remove or alleviate personal or family need345.

As far as co-ordination is concerned, Article 13(4) requires contracting parties to provide the rights mentioned above on an equal footing to nationals of other contracting parties lawfully within their territories as they do to their own nationals. Article 13(4) expressly states that contracting parties shall treat nationals of other contracting parties in accordance with the provisions of the European Convention on Social and Medical Assistance. This Convention provides for the equal treatment of the nationals of contracting parties and sets down rules on repatriation. The basic rule as regards repatriation is that no person shall be repatriated solely because they are in need of social and medical assistance. The Convention does provide for some exceptions to this basic rule which are described in section 4.2.4 of this Short Guide. The rules contained within this Convention are binding on all those contracting parties that accede to Article 13(4) of the European Social Charter or Revised Social Charter, whether or not that contracting party has ratified the Convention on Social and Medical Assistance346.

Personal scope: As for Article 12, there is a different personal scope for the different paragraphs of Article 13. Whereas the first three paragraphs apply only to nationals of other contracting parties who are lawfully resident or working regularly within the contracting party’s territory347, paragraph 4 is applicable to all nationals of the other contracting parties lawfully present in its territory. As for Article 12 it is important to note that the coverage of Article 13 is also not based on reciprocity. This means that some contracting parties have accepted the provisions of Article 13 whereas others have not348. The fact that Article 13 is not based on reciprocity means that the protection offered under Article 13 cannot be refused because the person concerned comes from a contracting party that has not adopted that Article. According to the European Committee of Social Rights this applies even in respect to Article 13 (4) 349.

For the sake of clarity, and considering that the two categories of foreigners350 covered by Article 13 did not qualify for the same protection because of their different situations, the

343

Article 13(1) European Social Charter/Revised Social Charter

344

Article 13(2) European Social Charter/Revised Social Charter

345

Article 13(3) European Social Charter/Revised Social Charter

346

Appendix to Article 13(4) to the European Social Charter/Revised Social Charter

347

See the Appendix to the European Social Charter and the Revised Social Charter dealing with the “Scope of the Charter in terms of persons covered”. The Appendices also provide that refugees and stateless persons legally residing within the contracting party should be given treatment that is as favourable as possible.

348

A list of signatures and ratifications to the European Social Charter and the Revised Social Charter and its Article 12(1) to (4) and Article 13(1) to (4) as of 1st September 2003 is attached (Appendix II). For the actual list as well as the references to the texts of the European Social Charter and Revised Social Charter see Appendix I.

349

See general observations of the European Committee of Social Rights with regard to Article 13(4) of the European Social Charter, Conclusions VII, p. 77

350

This refers only to those foreigners who fall within the personal scope of the European Social Charter or Revised Social Charter.

European Committee of Social Rights decided to make a clear distinction between those foreigners lawfully residing in the territory of another contracting party and those who were lawfully present there without being resident, examining the situation of the former under paragraphs 1 to 3 and the latter under paragraph 4351.

Foreigners lawfully residing or working in the contracting party: these people are entitled to social and medical assistance benefits on the same basis as resident nationals of the contracting party in which these foreigners reside or work. In reality it is those who are lawfully resident within a contracting party that are more likely to be in need of assistance than those who are working and thus receiving an income. The European Social Charter and the Revised Social Charter guarantee that these foreigners receive the rights enshrined in Article 13(1) to (3). They also ensure that foreigners are not exposed to any direct or indirect discrimination in relation to the conditions for or amount of the benefits provided for social and medical assistance. In order to determine whether or not foreigners are treated equally with nationals of the contracting party in which they reside/work, the European Committee of Social Rights will go beyond the legal position and look at the situation in reality. It will pay attention not just to legislation but also ministerial decisions352 and even administrative practice353. It will also look at the situation as a whole, so if foreigners are excluded from one scheme they may be equally covered by another and so in effect they receive equal treatment354.

Foreigners lawfully present in the contracting party although not residing or working there: this group is not entitled to the extensive range of cash and in-kind benefits for social and medical assistance that should be available for foreigners who reside or work in another contracting party. This group will only be entitled in relation to emergency benefits that are designed to assist those in immediate need. This may include accommodation, food, clothing and emergency medical treatment355. The granting of this assistance may not be subject to a residence requirement356. Emergency benefits must be granted without any direct or indirect discrimination compared to nationals of the contracting party in which they are claimed. The reference in Article 13(4) to the European Convention on Social and Medical Assistance limits the possibility of the contracting parties for repatriation of foreigners lawfully present in a contracting party to those cases where the special conditions of this Convention for repatriation are fulfilled (see above).

351 _{General Introduction to Conclusions XIII-4, pp. 62 and 63} 352

Conclusions XI-1, Greece, p. 132

353

Conclusions X-2, Spain, p. 123

354

Conclusions XIII-2, Belgium, p. 347

355

Conclusions XIII-4, p. 62

356

APPENDIX I