Equality of Treatment (Social Security) Convention, 1962 (No. 118) - Denmark (Ratification: 1969)

Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2023, published 112nd ILC session (2024)

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Article 4 of the Convention. Condition of residence. With reference to its direct request of 2012, the Committee recalls that Denmark has accepted the obligations of the Convention for the following branches: medical care, sickness benefit, unemployment benefit and employment injury benefit. The Government report received in 2016 states that there are no preconditions as to residence or stay in Denmark for granting of employment injury benefits which are paid worldwide. However, with regard to medical care, the right to benefits under the Danish Health Act arises out of registered residence in Denmark, and with regard to the sickness benefit, the main condition is that the person concerned has legal residence and income taxed in Denmark. As concerns the claimants of the unemployment benefit, they must be available for the Danish labour market. The report states that these conditions of legal and registered residence are equally applicable to Danish citizens and to foreigners and that the Government has no plans on amending the national legislation with a view to eliminating the residency condition concerning the sickness benefit and the unemployment benefit. It states, however, that the Convention is part of Danish legislation. This means that nationals of countries party to the Convention, who work in Denmark and reside abroad, can claim their rights according to the Convention. The Committee requests the Government to confirm for the international record that the condition of residence imposed by the Danish legislation for granting medical care, sickness benefit and unemployment benefit is not to be applied to nationals of countries party to Convention No. 118, which overrides the corresponding provisions of the national legislation. The Committee requests the Government to supply proof that the social security institutions providing these benefits were officially informed about the legal obligations of Denmark vis-à-vis the claimants from these countries.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 4 of the Convention. Residence conditions. Referring to the issues raised in its previous comments, the Committee notes the indication provided by the Government, in its report received in December 2011, that the bilateral social security agreements concluded by Denmark and the Community Regulation No. 1408/71 (and since 1 May 2010 Regulation (EC) No. 883/2004 on the coordination of social security systems) contain provisions applicable to certain of the branches of social security for which the obligations of the Convention have been accepted. In particular, EU law overrides the permanent and lawful residence condition imposed by Danish law for the nationals of the countries concerned who work in Denmark and reside in the European Union, the European Economic Area or Switzerland. As regards medical care, the previously applicable qualifying period of six weeks was repealed as from the entering into force of the Health Act on 1 January 2007. Nationals of countries with which Denmark has concluded bilateral social security agreements benefit from equal treatment with Danish citizens, subject to taking up residence in Denmark. Although there are no residence requirements that condition the granting of employment injury benefits, in practice recognition usually presupposes residence or stay in Denmark. As regards sickness benefits, it is required that the employee stays legally in Denmark.

The Committee notes that nationals of the European Union and the European Economic Area and Switzerland who work in Denmark and reside in another EU/EEA country or Switzerland are thus entitled to receive medical care irrespective of residence conditions, in accordance with the requirements established by this provision of the Convention. The Committee would like the Government to indicate in its next report whether the nationals of countries composing the above regional entities enjoy the same rights in respect of the other branches of social security accepted by Denmark under the Convention (sickness, unemployment and employment injury benefits).

The Committee notes that third country nationals, whether or not their country of origin has concluded a bilateral social security agreement with Denmark, only benefit from equal treatment with Danish nationals subject to the condition of having their residence in Denmark and having registered in the civil register (CPR, Folkeregisteret) for which they must have legally stayed in Denmark for at least three months. It also notes that Denmark has opted out from EU Council Regulation No. 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No. 1408/71 and Regulation (EEC) No. 574/72 to nationals of third countries with a view to guaranteeing the principle of equal treatment for third party nationals in matters of social security.

The Committee wishes to recall in this respect that, in accordance with the principle established by Article 4(1) equality of treatment as regards the granting of benefits shall be accorded without any condition of residence. Residence conditions may only be imposed in the case of nationals of any other ratifying Member that has legislation making the granting of benefits conditional on residence on its territory. Furthermore, while the granting of non-contributory benefits could be submitted to a certain duration of residence in accordance with Article 4(2), the Convention is explicit that no such condition may be imposed in respect of medical care, sickness benefit, employment injury benefit and family benefit. The branches accepted by Denmark under Convention No. 118 include the following: medical care, sickness benefit, employment injury benefit and unemployment benefit. Consequently, Danish law is not in conformity with the Convention because it is based on the premise that foreigners must, in order to be entitled to social security benefits, be legally resident in Denmark. The Committee therefore asks the Government to consider amending the national legislation with a view to eliminating the residency condition for nationals of countries party to the Convention who work in Denmark and reside abroad.

Articles 7 and 8. Retention of acquired rights and rights in course of acquisition. In its previous report, the Government indicated that there is no significant flow of migrants with the 26 countries party to the Convention that are not EU/EEA countries and therefore sees no real reason to conclude bilateral agreements with them given that no cases have been recorded of workers from one of the States parties to the Convention having lost the right to compensation for an occupational disease as a result of this. The Committee notes that, according to the statistical information provided by the Government in its 2011 report, nearly half of the 125,000 foreigners employed in Denmark in 2010 were citizens of non-EU/EEA countries or Switzerland. The statistical information provided does however only disaggregate these workers by region and occupation and not by nationality. The Committee therefore requests the Government to supply with its next report the statistical information requested in the report form, disaggregated by nationality.

The Committee recalls in this respect that under Article 7 States parties to the Convention shall endeavour to participate in schemes for the maintenance of the acquired rights and rights in course of acquisition under their legislation of the nationals of other ratifying States with a view to provide, in particular, for the totalization of periods of insurance, employment or residence for the purpose of the acquisition, maintenance or recovery of rights and for the calculation of benefits. It also notes that in 2009, the European Committee of Social Rights decided that the situation in Denmark was not in conformity with Article 12(4) of the European Social Charter because Danish legislation does not provide for retention of accrued and accruing benefits when persons move to a State party not bound by Community regulations or by agreement with Denmark, as well as for the accumulation of insurance or employment periods completed by the national of such States parties. The Committee invites the Government to provide further information in this regard.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Repetition

Article 4 of the Convention. In accordance with Article 4(1) of the Convention, equality of treatment as regards the granting of benefits provided by the branches of social security for which the obligations of the Convention have been accepted by Denmark (medical care, sickness benefit, employment injury benefit, unemployment benefit), shall be accorded without any condition of residence imposed on non-nationals alone. This provision is applicable to the nationals of any other member State for which the Convention is in force, irrespective of whether or not this State has concluded with Denmark any bilateral or multilateral social security agreement. In comparison, entitlement to social security benefits under the Danish legislation is generally subject to the recipient having a permanent address and lawful residence in Denmark, unless otherwise provided by bilateral or multilateral Conventions on social security or pursuant to Community Regulation 1408/71. In order to evaluate that the requirements of having a permanent address and lawful residence in Denmark do not result in an unequal treatment of non-nationals as regards the granting of the abovementioned social security benefits, the Committee would like the Government to provide in its next report detailed answers to the following questions:

• – do the bilateral or multilateral Conventions concluded by Denmark cover benefits provided by the branches of social security for which the obligations of Convention No. 118 have been accepted by Denmark (medical care, sickness benefit, employment injury benefit, unemployment benefit);
• – do these bilateral or multilateral Conventions contain provisions expressly overriding the condition of having a permanent address and lawful residence in Denmark for the nationals of the countries in question;
• – is the reference in the Danish legislation to multilateral Conventions on social security interpreted as also covering Convention No. 118;
• – how the notions of “permanent address” and “lawful residence” are construed in the national legislation, taking into account that, under Article 1(e) of Convention No. 118, the term “residence” means ordinary residence.

Please explain, on the basis of concrete examples, if possible, what residence requirements (place of residence, length of residence, permanent character of residence, legal documents attesting residence, etc.) would condition the granting of medical care, sickness benefit and employment injury benefit (including rehabilitation benefit) to a migrant worker from Egypt or Mauritania, with which Denmark has no bilateral agreements, and from Pakistan or Turkey which have concluded bilateral agreements with Denmark.

Articles 7 and 8. The Committee notes that the European Committee of Social Rights concluded in 2006 that the situation in Denmark was not in conformity with article 12(4) of the European Social Charter because Danish 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 Denmark, as well as for the accumulation of insurance or employment periods completed by the national of such States parties. The Committee recalls in this respect that under Article 7 of the Convention States parties to the Convention shall endeavour to participate in schemes for the maintenance of the acquired rights and rights in course of acquisition under their legislation of the nationals of other ratifying States with a view to provide, in particular, for the totalization of periods of insurance, employment or residence for the purpose of the acquisition, maintenance or recovery of rights and for the calculation of benefits. For this purpose, Denmark has concluded bilateral agreements with 13 countries, of which only three – Turkey, Pakistan and Israel – are parties to Convention No. 118, ratified by another 34 countries. Seven of these are bound, as Denmark, by the Community regulations and one – Finland – by the Nordic Social Security Convention. With regard to the remaining 26 States parties to the Convention, the Government indicates that at present there is no significant flow of migrants with these countries and therefore it sees no real reason to conclude bilateral agreements with them. The Government states, however, that no cases have been recorded of workers from one of the States parties to the Convention having lost the right to compensation for an occupational disease as result of this. While taking due note of this information, the Committee would like the Government to provide in its next report detailed statistics requested in the report form on the Convention adopted by the Governing Body on the number of foreign workers in Denmark, their nationality, occupational distribution, etc.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report and the information supplied in response to the Committee’s previous comments.

Article 4 of the Convention. In accordance with Article 4(1) of the Convention, equality of treatment as regards the granting of benefits provided by the branches of social security for which the obligations of the Convention have been accepted by Denmark (medical care, sickness benefit, employment injury benefit, unemployment benefit), shall be accorded without any condition of residence imposed on non-nationals alone. This provision is applicable to the nationals of any other member State for which the Convention is in force, irrespective of whether or not this State has concluded with Denmark any bilateral or multilateral social security agreement. In comparison, entitlement to social security benefits under the Danish legislation is generally subject to the recipient having a permanent address and lawful residence in Denmark, unless otherwise provided by bilateral or multilateral Conventions on social security or pursuant to Community Regulation 1408/71. In order to evaluate that the requirements of having a permanent address and lawful residence in Denmark do not result in an unequal treatment of non-nationals as regards the granting of the abovementioned social security benefits, the Committee would like the Government to provide in its next report detailed answers to the following questions:

n      do the bilateral or multilateral Conventions concluded by Denmark cover benefits provided by the branches of social security for which the obligations of Convention No. 118 have been accepted by Denmark (medical care, sickness benefit, employment injury benefit, unemployment benefit);

n      do these bilateral or multilateral Conventions contain provisions expressly overriding the condition of having a permanent address and lawful residence in Denmark for the nationals of the countries in question;

n      is the reference in the Danish legislation to multilateral Conventions on social security interpreted as also covering Convention No. 118;

n      how the notions of “permanent address” and “lawful residence” are construed in the national legislation, taking into account that, under Article 1(e) of Convention No. 118, the term “residence” means ordinary residence.

Please explain, on the basis of concrete examples, if possible, what residence requirements (place of residence, length of residence, permanent character of residence, legal documents attesting residence, etc.) would condition the granting of medical care, sickness benefit and employment injury benefit (including rehabilitation benefit) to a migrant worker from Egypt or Mauritania, with which Denmark has no bilateral agreements, and from Pakistan or Turkey which have concluded bilateral agreements with Denmark.

Articles 7 and 8. The Committee notes that the European Committee of Social Rights concluded in 2006 that the situation in Denmark was not in conformity with article 12(4) of the European Social Charter because Danish 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 Denmark, as well as for the accumulation of insurance or employment periods completed by the national of such States parties. The Committee recalls in this respect that under Article 7 of the Convention States parties to the Convention shall endeavour to participate in schemes for the maintenance of the acquired rights and rights in course of acquisition under their legislation of the nationals of other ratifying States with a view to provide, in particular, for the totalization of periods of insurance, employment or residence for the purpose of the acquisition, maintenance or recovery of rights and for the calculation of benefits. For this purpose, Denmark has concluded bilateral agreements with 13 countries, of which only three – Turkey, Pakistan and Israel – are parties to Convention No. 118, ratified by another 34 countries. Seven of these are bound, as Denmark, by the Community regulations and one – Finland – by the Nordic Social Security Convention. With regard to the remaining 26 States parties to the Convention, the Government indicates that at present there is no significant flow of migrants with these countries and therefore it sees no real reason to conclude bilateral agreements with them. The Government states, however, that no cases have been recorded of workers from one of the States parties to the Convention having lost the right to compensation for an occupational disease as result of this. While taking due note of this information, the Committee would like the Government to provide in its next report detailed statistics requested in the report form on the Convention adopted by the Governing Body on the number of foreign workers in Denmark, their nationality, occupational distribution, etc.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Article 4 of the Convention. The Committee takes note of the XVII-1 Conclusions concerning the application by Denmark of Article 12(4) of the European Social Charter made by the European Committee of Social Rights (ECSR) in April 2004, which read as follows: "The report confirms in a general manner that pursuant to the applicable legislation entitlement to social security benefits is subject to the recipient having a permanent address and lawful residence in Denmark, unless otherwise provided by bilateral or multilateral conventions on social security or pursuant to Community Regulation 1408/71. Although the report does not specifically reply to the question concerning invalidity allowances and occupational accident and disease benefits, the Committee can only assume that such accrued benefits are not retained where a person moves to a Contracting Party not bound by Community regulations or agreements with Denmark. It therefore considers that the situation is not in conformity with the Charter."

The Committee wishes to recall in this respect that, in accordance with Article 4. paragraph 1, of the Convention, equality of treatment as regards the grant of benefits shall be accorded without any condition of residence. It would therefore like the Government to indicate whether the reference in the legislation to multinational conventions on social security, which could override the condition of having a permanent address and lawful residence in Denmark, is interpreted as also covering Convention No. 118 and, if so, whether the benefits under accepted branches of social security are granted on conditions of global reciprocity, on the same terms as to Danish nationals, to nationals ceasing to reside in Denmark of any State which has ratified the Convention, but which is not bound by Community regulations or corresponding bilateral agreement with Denmark.

As regards more particularly branch (h) - unemployment benefit - accepted by Denmark, the Committee draws the attention of the Government to the fact that, in accordance with Article 4(2)(a) of the Convention, the grant of unemployment benefits, including any supplements or increments, referred to in Article 2, paragraph 6(a), may be made subject to the condition that the beneficiary has resided on the Danish territory six months immediately preceding the filing of a claim. However, to avail itself of this permissive clause, as well as the similar clause included in Article 5(2), the Government has to communicate to the ILO a statement indicating which benefits it considers to be "benefits other than those the grant of which depends either on direct financial participation by the persons protected or their employer, or on a qualifying period of occupational activity".

Articles 7 and 8. The Committee further notes that the European Committee of Social Rights concluded that the situation in Denmark was not in conformity with Article 12(4) of the European Social Charter because "Danish legislation does not provide for the aggregation of insurance or employment periods completed by the nationals of Contracting Parties not covered by Community regulations or bound by agreement with Denmark". The Committee recalls in this respect that under Article 7 of the Convention, States parties to the Convention shall endeavour to participate in schemes for the maintenance of the acquired rights and rights in course of acquisition under their legislation of the nationals of other ratifying States with a view to providing, in particular, for the totalization of periods of insurance, employment or residence for the purpose of the acquisition, maintenance or recovery of rights and for the calculation of benefits. Taking into account that Denmark has not ratified neither the Maintenance of Migrants’ Pension Rights Convention, 1935 (No. 48), nor the Maintenance of Social Security Rights Convention, 1982 (No. 157), effect to the above obligation may be given, as stipulated in Article 8 of the Convention, by the conclusion of multilateral or bilateral agreements to this end with other ratifying States. The Committee notes, from the abovementioned conclusions of the ECSR, that Denmark has concluded bilateral agreements with 13 countries, of which only three -Turkey, Pakistan and Israel - are parties to Convention No. 118 ratified by another 34 countries. Seven of these are bound, as Denmark, by the Community regulations and one - Finland - by the Nordic Social Security Convention. The Committee asks the Government to indicate in its next report the measures taken or contemplated to promote mutual agreements for the maintenance of the acquired rights and rights in the course of acquisition with those of the remaining 26 Members to the Convention which have accepted its obligations for the same branches of social security as Denmark and with which Denmark has a noticeable migration flow. The Committee would like the Government to provide statistical information on the number of migrant workers in Denmark coming from countries that have ratified the Convention but do not have existing bi- or multilateral agreements with Denmark.