De WW en nieuwe sociale risico's. Internationaalrechtelijke grenzen aan hervormingsvoorstellen

Abstract

Subject of this study is the relationship between proposals for an adjustment of the Dutch Unemployment Insurance Act (WW) and the international social security conventions. These proposals aim to adjust the WW to variation in the individual life cycle: they aim to provide more protection against new social risks, such as care and education, and to increase a person's freedom of choice as well as his own responsibility in the social system. A common denominator in all these proposals is the presence of saving elements. These proposals must meet the agreements laid down in the Conventions no. 44, 102, 122, 140, 142 and 156 of the International Labour Organisation (ILO), the (revised) European Code of Social Security and pertaining Protocol, and art. 1, 10, 12 and 27 of the European Social Charter (ESC) of the Council of Europe. These agreements comprise minimum standards, general principles and policy objectives for the design of the social security system and the policies in the fields of employment, education/educational leave and the combination of work and care. The Netherlands has ratified these conventions, so these social standards are binding. This investigation shows that the ILO Conventions and the ESC permit the substitution in part of a statutory insurance by a savings scheme. The articles 22, 24, 65 and 66 of Convention no. 102 and the European Code, which lay down the principle of income security, permit also the limitation of the income security for unemployment to the minimum duration of 21 weeks and the minimum scope of 50 percent of the previous earnings, as laid down in the Protocol. In view of the non-regression principle laid down in art. 19 par. 8 of the ILO Constitution, there must, however, be good reasons to this limitation. An extension of the financial scope for the protection against new social risks can be a justification. The conventions, however, encourage that this protection includes not only employees with a low risk to become unemployed, but also to employees with a high risk to become unemployed and other vulnerable groups. This can be realised by making the saving scheme obligatory, introducing fiscal stimuli geared toward lower-income groups and loan facilities with remission options. These measures increase collective responsibility with regard to new social risks. The savings scheme may supplement a statutory unemployment insurance and thus form the second pillar, or it may form the first pillar of a new unemployment system. It is, however, essential that the savings scheme in the first pillar is supplemented by a plan, which does determine the duration of the benefit in advance. The conventions leave it to the discretion of the member state to determine how to give substance to such a supplementary plan. It can be useful to investigate whether is it possible to guarantee the duration of the benefit in advance by introducing financial mechanisms within the savings schemes. In this way the conventions provide scope to adjust the unemployment system to individual life cycle variations. They play a key role in adjusting social protection by requiring that important principles of social protection, such as collective responsibility and solidarity, be guaranteed in a system that also pursues opposite principles, such as a person's own responsibility and freedom of choice. There is no need to adapt the conventions. However, for purpose of clarity, certain requirements that surface in the findings and conclusions of the supervising bodies, could be explicitly included in the conventions.