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Social security coverage of non-active persons moving to an - PowerPoint Presentation

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Social security coverage of non-active persons moving to an - PPT Presentation

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

2004 residence 883 social residence 2004 social 883 legal state assistance coordination tress sncb law member care equal current

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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!

…?Slide10
Slide11

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