slide1 n.
Download
Skip this Video
Loading SlideShow in 5 Seconds..
Social security coverage of non-active persons moving to another Member State: The chicken or the egg? F. Van Overmeiren PowerPoint Presentation
Download Presentation
Social security coverage of non-active persons moving to another Member State: The chicken or the egg? F. Van Overmeiren

Loading in 2 Seconds...

play fullscreen
1 / 15

Social security coverage of non-active persons moving to another Member State: The chicken or the egg? F. Van Overmeiren - PowerPoint PPT Presentation


  • 134 Views
  • Uploaded on

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 2012. Context

loader
I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.
capcha
Download Presentation

PowerPoint Slideshow about 'Social security coverage of non-active persons moving to another Member State: The chicken or the egg? F. Van Overmeiren' - caden


An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -
Presentation Transcript
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 2012

slide2

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 equaltreatmentrights of economicallyinactive EU citizensunder D-2004/38

Right to free movement as a fundamental right (art. 21 TFEU)

Direct effect / Derogations to beinterpretedrestrictively

Conditions and limitations in D-2004/38

Residence +3 months: Sufficient resources / comprehensivesicknessinsurance

Expulsionmaynotbe the automaticconsequence of socialassistance claim + onlyif “unreasonable” burdenon the public finances

Entitlement to socialassistanceunder D-2004/38

Principle of equaltreatment

No socialassistanceduring the firstthreemonths of residence (+ jobseek)

“Social assistance” in D-2004/38?

slide4

Overview of the legal framework

EU socialsecuritycoordinationrightsforeconomicallyinactive EU citizens (R-883/2004)

Residence: “centre of interest” according to a factualassessmentby the MS (cf. criteria in Article 11 R-987/2009)

Coordination of health care

‘Lex locidomicilii’ foreconomicallyinactivepersons

In certain cases at the expense of another MS (cf. pension state)

Ifnot: principle of equaltreatment in MS of residence

Coordination of SNCB (“mixed benefits” betweensocialsecurity and socialassistance)

Under the material scope of R-883/2004 (Annex X) >< “pure” socialassistance

Excludedfrom the principle of export of benefits (>< early ECJ case law)

Only in the Member State of residence

slide5

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 detected

slide6

Current state of EU law

Relationshipbetween 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 “legalresidence” in R-883/2004: onlyfactualresidence // Article 11 R-987/2009

Origin of “sufficient resources” under D-2004/38 not relevant, butwhatwithsocialsecuritybenefits of the host state?

Health care and SNCB as “socialassistance” within the meaning of D-2004/38? HC certainlynot, SNCB most probablynot (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!

…?

slide11

trESS proposal on future perspectives

Legal reasoning >< politicalperspective

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-2004/38

slide12

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 persons

slide13

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 883/2004

slide14

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?

thank you for your attention questions filip vanovermeiren@ugent be
Thank you for your attention!

Questions?

Filip.VanOvermeiren@UGent.be