The chicken or the egg F Van Overmeiren Ghent University trESS bilateral seminar EEFI Tallinn 4 September 2012 Context From trESSCASSTM topic 2009 to highest political level EPSCO Council June 2011 R8832004 ID: 426189
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Slide1
Social security coverage of non-active persons moving to another Member State:
The chicken or the egg?
F. Van Overmeiren
Ghent University
trESS bilateral seminar EE-FI, Tallinn, 4 September 2012Slide2
Context
From trESS-CASSTM topic (2009) to highest political level (EPSCO Council June 2011): R-883/2004
vs
D-2004/38?
2010 Note from the Secretariat (EC): first legal analysis
2010 Adm. Comm. Notes from the Member States: several concerns with regard to
“non-active persons and access to social benefits”
EC & Member States: need for further analysis: 2011 trESS Analytical Study
2012 Follow-up in the Adm. Comm.Slide3
Overview of the legal framework
Residence
and
equal
treatment
rights
of
economically
inactive
EU
citizens
under
D-2004/38
Right to free
movement
as a
fundamental
right (art. 21 TFEU)
Direct effect /
Derogations
to
be
interpreted
restrictively
Conditions
and
limitations
in D-2004/38
Residence
+3
months
:
Sufficient
resources /
comprehensive
sickness
insurance
Expulsion
may
not
be
the
automatic
consequence
of
social
assistance
claim +
only
if
“
unreasonable
”
burden
on
the public
finances
Entitlement
to
social
assistance
under
D-2004/38
Principle
of
equal
treatment
No
social
assistance
during
the
first
three
months
of
residence
(+
jobseek
)
“Social
assistance
” in D-2004/38?Slide4
Overview of the legal framework
EU
social
security
coordination
rights
for
economically
inactive
EU
citizens
(R-883/2004)
Residence
: “
centre
of interest”
according
to a
factual
assessment
by
the MS (cf. criteria in
Article
11 R-987/2009)
Coordination
of
health
care
‘Lex
loci
domicilii
’
for
economically
inactive
persons
In
certain
cases at the
expense
of
another
MS (cf. pension state)
If
not
:
principle
of
equal
treatment
in MS of
residence
Coordination
of SNCB (“mixed
benefits
”
between
social
security
and
social
assistance
)
Under
the
material
scope of R-883/2004 (Annex X) >< “pure”
social
assistance
Excluded
from
the
principle
of export of
benefits
(><
early
ECJ case
law
)
Only
in the
Member
State of
residenceSlide5
Outcome of the trESS fact-finding analysis
Fear for social tourism;
Increase in claims from non-active persons;
Unclear relationship between R-883/2004 and D-2004/38
.
Lack of convincing national
facts&figures
: therefore, no concrete need for immediate action detectedSlide6
Current state of EU law
Relationship
between
R-883/2004 and D-2004/38
Main
priority question
:
“First legality of residence, then coordination (=entitlement to SNCB, health care)” or “first coordination rights, then legal residence (using coordination rights to establish legal residence)?”Slide7
Current state of EU law
Current texts of R-883/2004 and D-2004/38: no direct influence THUS
separate and full application of both instruments
:
No
reference
to “
legal
residence
” in R-883/2004:
only
factual
residence
//
Article
11 R-987/2009
Origin
of “
sufficient
resources”
under
D-2004/38
not
relevant,
but
what
with
social
security
benefits
of the host state?
Health care and SNCB as “
social
assistance
”
within
the
meaning
of D-2004/38? HC
certainly
not
, SNCB most
probably
not
(
undermine
the
balance
of the
SNCB-system
)
EU citizenship case law: Treaty-based equal treatment right and the
“genuine link”
justification (degree of integration for entitlement to welfare)
Influence
of the “
genuine
link”
on
R-883/2004
residence
concept?Slide8
Current state of EU law
R-883/2004 notion of residence
Formally
accepted: SNCB in MS of residence (balance to avoid exportation) + equal treatment for residence based health care in competent MS of residence (Art. 3 R-883/2004)
Substantially
close to a “genuine link” assessment: a factual analysis of relevant individual circumstances (cf. Article 11 R-987/2009)Slide9
Current state of EU law
Anyway too much room for different interpretations of the relationship:
ambiguous situation
, e.g.:
AT: “Suppl. Pension” (cf. C-140/12,
Brey
) legal residence!
FR: “Residence based health care scheme” legal residence!
…?Slide10Slide11
trESS proposal on future perspectives
Legal
reasoning
><
political
perspective
Route 1: “CLARIFICATION”
A safeguarding clause for R-883/2004 in D-2004/38 (like in R-492/2011)
A definition of social assistance in D-2004/38Slide12
trESS proposal on future perspectives
Route 2: “RECONCILIATION”
A
flexible (!) waiting period
in the residence concept of R-883/2004 for the application of the special coordination regime for SNCB’s + limited export of SNCB
A
cost compensation mechanism
between the former and the new Member State of residence for residence based benefits granted to non-active personsSlide13
trESS proposal on future perspectives
Route 3: “FOCUS ON RESIDENCE”
Substantiating
residence notion
of Article 1(j) R-883/2004
An enhanced focus on the
assessment of the establishment of residence
in the Member States in order to prevent confusion and cases of fraud and abuse
The introduction of an
“abuse of rights” clause
with regard to the residence concept in Regulation 883/2004Slide14
Follow-up in the Adm. Comm.
“Ad Hoc Group on residence”: how to tackle legal uncertainty?
Main focus: Ways to better define and limit (transfer of) residence
First report expected in Spring 2013
Coordination with UK initiative at political level?Slide15
Thank you for your attention!
Questions?
Filip.VanOvermeiren@UGent.be