Social Security: Current Trends, Legal Framework, and the Spanish System

Posted on Dec 7, 2024 in Law & Jurisprudence

Current Issues and Trends in Social Security

The basic premises on which social security systems were initially based are:

  • Stability of career (full employment).
  • Stability of the traditional family pattern.

In this context, situations of need that require protection are temporary and permanent disability of the worker, age, family, unemployment, maternity of women workers, if necessary, and worker’s death. To consider is the protection of women not working and with no independent right to social security protection, and children: the right to healthcare in case of sickness, accident, and maternity, and the right to financial benefits when the income provider dies: survivors’ benefits (widow, children, etc.).

Currently, the above assumptions are failing:

  • Professional, personal, and collective instability.
  • Late entry into the labor market.
  • Personal and family instability, according to the traditional scheme.

Conditioning factors:

a) Changes in the labor market:

  • Incorporation of women into the labor market.
  • Job insecurity.
  • Technological changes.
  • Increased level of unemployment and change in its nature: short-term, it becomes structural.

b) Demographic changes in lifestyles and household structure:

  • Aging population.
  • Migratory flows from developing countries.
  • Divorces: chains sharing rights or split.
  • Increase of free unions or partnerships.

Current Trends:

  • Before the “gaps” produced by the traditional social security systems for professional standards, Social Security raises more ambitious targets: non-contributory benefits and minimum income for those who are not embedded in the labor market.
  • Financial problems of the system (aging population, unemployment). They attempt to solve these in various ways (Pact of Toledo, 1995): separation of funding sources, anti-fraud measures, limitations on contributory benefits, etc.
  • Rise of private Plans and Pension Funds, outside the Social Security system.
  • Protection of persons in situations of dependency. Following the entry into force of Law 39/2006, of December 14, one can speak of a fourth pillar of the social protection system (the other three would be health, contributory benefits, and non-contributory).

The Social Security Law

Social Security and the Legal System

Social Security is the subject of regulation of a large sector of the legal system called Social Security Law.

Characteristics of this area of law:

  • Dynamism and complexity.
  • Scientific and academic autonomy with respect to Labor Law, but with important elements of connection.
  • Highly formalized legal branch, attached to Public Law; massive practical implementation.
  • Organization at various levels:

a) Supranational level: ILO standards and the European Union, bilateral treaties, and conventions.

b) Constitutional level.

c) The level of ordinary law: laws and regulations. Division of responsibilities in the matter between the State and the Autonomous Communities (art. 149.1.17 CE).

International Law and Supranational Social Security

Background:

  • Establishing minimum bases by protecting Social Security, to submit their national laws.
  • Protection of migrant workers.

Constitutional Principles and the Legal Model for Social Security

The Constitution deals with Social Security in a number of provisions:

Article 41 is of the highest significance. Content:

  • Principle of “subjective universality:” public social security scheme for all citizens. More advanced model that governed the LGSS, of obvious contributory.
  • The establishment of the system cannot be left to private initiative.
  • The reference to “citizen” performing art. 41 EC in contrast to the territorial nature of the LGSS system prints.
  • Faced with the notion of “risk” or “contingency” in the host LBSS 1963, art. 41 EC refers to “state of necessity”.
  • “The assistance and benefits shall be free.”

With partial or indirect nature, other constitutional provisions relating to Social Security:

  • Art. 39.1 and 2
  • Art. 43
  • Art. 49
  • Art. 50
  • Art. 129.1
  • Art. 25.2: the convicted to imprisonment “has the right … to the corresponding benefits of Social Security.”

The scope of these provisions depends on its systematic position within the Fundamental Standard. Most are set up merely as guiding principles of social and economic policy. Only art. 25.2 recognizes a fundamental right to social security.

Powers of State and the Autonomous Communities on Social Security

  • Art. 149.1.17 provides the exclusive jurisdiction of the state in two aspects:

1) The basic legislation on Social Security.

2) The economic system.

  • In all other areas including the development of essential legislation and executive duties, the Autonomous Communities may assume competences.
  • Art. EC 148.1, paragraphs 20 and 21, provides as materials given by the CC. AA. social assistance and health and hygiene.

The Spanish Social Security System

Principles

  • Public Scheme.
  • Designed to protect all citizens.
  • It must ensure sufficient benefit and assistance in situations of need.
  • The protection afforded is comprised of public benefits, both non-contributory pensions or welfare.

Subjective Level

The subjective field of the system has undergone a steady expansion.

Clarification of Terminology

When one speaks of persons protected by the system, different terms are often used that are necessary to define, as they are not equivalent to each other:

a) Worker

b) Affiliate

c) Contributor

d) Beneficiary

e) Holder

f) Pensions

The term “protected persons” would encompass all the previous ones and refers to one who holds a general right, potential or current, to state protection.

Extension of Scope

Inclusions

For the purposes of contributory benefits (with art. 7.1 LGSS), those included within the scope of the Spanish system are residents in Spain and foreigners living or staying legally in Spain, provided that in either case, they are operating in national territory and are:

  • Employed persons.
  • Self-employed or freelance.
  • Partners workers of Associated Work Cooperatives.
  • Students.
  • Civil servants, civilian and military.

For the purposes of non-contributory benefits, those included in the scope of the Spanish system are residents of the national territory (art. 7.3 LGSS) and foreigners who reside legally in Spain (sections 3.1., 10.1, 14.1 and 2 4 / 2000, dated 11 January on the rights and freedoms of foreigners in Spain and their social integration) that do not have income or sufficient income.

Exclusions
  • Partners, whether or not managers of capitalist corporations, whose corporate purpose is not constituted by the exercise of trade or business activities, but by the mere administration of the assets of the partners (Disp.Adic. Twenty-seventh. 2 LGSS).
  • The Government may, at the request of those concerned, exclude from the scope of the Social Security Scheme persons whose work as an employee, in consideration of his or her pay day, may be considered marginal and not a constitutive means of life (art. 7.6 LGSS).

Structure

General and Special Dietary Conditions

The system is structured as follows:

a) A general scheme that includes mandatory workers employed or assimilated (art. 97 LGSS) in industry and services. Art. 97 clarifies the concept of employee and provides a set of inclusions and exclusions assimilations.

Inclusions and assimilations: art. 97.2 LGSS (drivers of passenger cars in the service of individuals, staff recruited to serve notaries, priests of the Catholic church, etc.)

Exclusions:

  • Spouse and relatives of the businessman to the second degree and living with them under their care unless it is proven that he is an employed person (Article 7.2 LGSS).
  • Work that is friendly, benevolent, or in good neighborliness (art. 98th LGSS).
  • The work leading to its inclusion in some of the special schemes of social security (art. 98.b LGSS).