Recent developments incl. Regulation 465/2012, Directive

developments in EU
social security
trESS seminar, Dublin, Ireland
2 October 2013
Magdalena Ciesielska and Albrecht Otting
DG Employment, Social Affairs and Inclusion
Social Europe
EU Social Security Coordination in
the wider context
• Challenge of financial and economic crisis for
free movement
• Changed attitude in some Member States
• Free movement and social security
coordination in the centre of the political
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I. Recent Policy Developments
Regulation 465/2012
First Revision of Regulation 883/2004
Staff Working Paper on Highly Mobile Workers
Patients Mobility
Residence issues
External Dimension
Electronic Information Exchange (EESSI)
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Regulation 465/2012
New Article 65a BR
Solution for formerly self-employed frontier workers who were
covered in the Member State of last activity, but whose MS of
residence does not have an unemployment benefits scheme
MS of last activity will pay the unemployment benefits if the person registers
with the employment services in that Member State and is available for work
If the person does not wish to become or remain available to the employment
services of the MS of last activity and wishes to seek work in the MS of
residence, the MS of last activity will pay the unemployment benefits for
minimum 3 months, with a possibility of extension until end of entitlement.
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Regulation 465/2012
Change of rules for working in two or more MS
Article 13 BR as amended: Person normally working in two or more
MS is subject to legislation of MS of residence only if he/she pursues
"substantial part of activities" there (regardless if person has one or
more employers)
If no substantial activities in MS of residence:
MS in which registered office is situated if person is employed by one employer or
by two or more employers who have registered office in a single MS only; or
MS in which registered office is situated outside MS of residence if he/she is
employed by two or more employers which have registered office in two MS,
one of them is MS of residence; or
MS of residence if he/she is employed by two or more employers and at least two
of them have registered office in different MS other than MS of residence
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Regulation 465/2012
Aircrew members - New Art 11 (5) BR
"An activity as an aircrew member performing air passenger
or freight services shall be deemed as an activity pursued in
the Member State where the home base as defined in Annex
III to Council Regulation (EEC) No 3922/91 is located"
Home base: place from which aircrew member habitually
carries out work in performance of his/her contract
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1st Revision of the social security
coordination rules
Coordination of long-term care benefits (LTC)
Coordination of unemployment benefits
2009 – 2011
2012 – 2013
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Revision of the social security
coordination rules
• Objectives
• Improved social security protection for migrant citizens
• Enhanced effectiveness of the coordination regime
• Legal certainty for all stakeholders
• Simplification
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Coordination of LTC benefits
• Is the current system of coordination of long-term
care benefits satisfactory? Is a new set of rules
needed & how radical the changes should be?
• LTC within material scope of coordination Regulations
• Coordination under Chapter 1 – Sickness, maternity and
equivalent paternity benefits
• Court of Justice (recent: C-208/07 Chamier-Glisczinski, C388/09 da Silva, C-206/10 Commission v Germany)
• No definition, no list of benefits
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Policy Options LTC benefits
1. Maintain the current situation
2. Keep the coordination as sickness benefits but clarify the
legal framework by a new Chapter on LTC Benefits with a
definition and the listing of all MS benefits in a specific Annex
3. MS of residence will provide all LTC benefits on the basis of
its legislation (reimbursement from the competent state)
4. Competent MS will provide all LTC benefits to insured
persons residing abroad (export)
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Chapter 6 - Unemployment benefits
Room for simplification and clarification?
• Complex coordination regime for cross-border workers
(Article 65 and new Article 65a of Reg 883), including
the new reimbursement mechanism (Decision No U4)
• Application of the case-law of the Court of Justice (C131/95 Huijbrechts, C- 1/85 Miethe and Jeltes C443/11)
• Extension of the period of export of unemployment
• Application of the principle of aggregation of periods
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Results of the public consultation
N° of replies: 299
• 199 replies by individuals
• 100 replies on behalf of organisations or
Online summary:
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Discussion Paper
on Highly Mobile Workers
• Commission Task Force to identify problems and challenges
for highly mobile workers, including social security
coverage and tax matters
• Gathering of existing evidence and collective reflection on
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Patient Mobility
Patient Mobility Directive 2011/24/EU
- transposition deadline: 25 October 2013
Need for dealing with the co-existence of two
 Guidance note of the Commission in 2012 (legal aspects)
 Workshops and discussions in the AC and SANCO
 Communications Activities at national and EU level
 Practical Guide to be considered after transposition
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Residence Issues
• Politically sensitive issue
• Ad Hoc Group on Habitual Residence
Elaboration of Practical Guide (discussion in the AC in October)
• Study on the impact of mobility of non-active persons on
residence based social security benefits
will be published on the COM website on 7 October 2013
• Recent judgment of the Court in case C-140/12 Brey
(pending case C-333/13 Dano)
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Myths and reality – Residence discussion
Many non-active EU migrants come
to my country because of higher
social security benefits
No evidence of a "welfare
magnet hypothesis"
Only if Habitual Residence Test
is passed
Non-active EU migrants are
immediately entitled to social
security benefits in my country
Use of Fundamental Right of
Free movement is never an
EU law is too soft – allows abuse of
Migrants are contributing to the
economic success
Migration is an integral part of
European past, present and
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External Dimension of EU Social Security
• Communication (2012)153 final of 30.03.2012
• Adoption of 2nd package of EU negotation positions
(Albania, San Marino, Montenegro and Turkey)
• Ongoing negotiations with 10 countries
• Question of Legal Basis (Articles 48, 72 (b) or 217 TFEU)
– 26/09: judgement of 26 September 2013 in case C431/11 the UK v Council of the EU
• Negotiations of new Association Agreements with
Caucasus Countries
• New Ad Hoc Group
• Follow up to 2012 Communication (Forum, etc.)
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Analysis of
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II. Recent Case Law
"Residence issue"
a) Wencel judgement of 16 May 2013, C-589/10
b) Swaddling judgement of 25 February 1999,
c) Brey judgement of C-140/12
d) Dano case C-133/13
e) Flood case C-255/13
f) Kelly case C-403/13
2. "unemployment issue"
a) a) Caves Krier judgement of 13 December 2012, C-379/11
b) b) Jonsson judgement of 20 March 2013, E-3/13
c) c) Jeltes judgement of 11 April 2013, C-443/11
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Judgement of 16.05.2013 in case C-589/10,
For the purpose of the application of Reg. 883/2004
 a person cannot simultaneously have two habitual
residences in two different Member States;
 in case of doubt, the place of residence or centre of interest
is determined by way of an overall assessment of all
available information relating to relevant facts considering
inter alia the various criteria listed in Article 11 of Reg.
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Judgement of 25.02.1999 in case C-90/97
• The term "residence" (Art. 1 (j) Reg. 883) has a Community-wide
• The length of (past) residence cannot be regarded as an intrinsic
element of it.
• This applies in particular where a person returning to his home
country mas made it clear that he intends to remain in his country
of origin.
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Ad hoc Group on Residence
• "Residence" is defined as the place where a person habitually
resides or where his centre of interest is to be found. This depends
on a number of factors: family situation, duration and continuity of
presence, employment situation, exercise of non-remunerated
activities, housing situation) etc. A person who proves that his
centre of interests is in the host State has shown having a
sufficient genuine link with host State in order to claim special
non-contributory benefits.
• Practice shows that institution often assumes that place of
"residence" is identical with place where a persons has declared
his home address. Mere Registration, however, is not sufficient
and not decisive in case of doubt.
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Ad hoc Group on Residence
• Report contains number of concrete examples aimed at drawing
attention to specific characteristics that might be common to many
Inactive mobile persons
Report shall become part of the Practical Guide on the
applicable legislation*
*which is published on the website of the Commission
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Judgement of 19.09.2013 in case C-140/12
• Special non-contributory benefits can also be social assistance under the residence
Directive (= different definitions of social assistance under EU law)
• Conditions under Art. 7 of the Directive have to interpreted narrowly
• Receipt or application of social assistance not sufficient to show unreasonable burden
to system (= all systems which automatically deny social assistance to nonactives EU citizens are prohibited)
• Refusal only after individual assessment permitted
• Criteria
- amount and regularity of income
- possession of residence certificate
- likely period of receipt; AND
- extent of financial burden on whole system
(e.g. number of EU beneficiaries)
• Consequence of entitlement under Regulation (= equal treatment) mentioned (points
38 – 44), but not clarified in final ruling."
Social Europe
Case C-133/13 Dano
Ms Dano and her child claim subsistence benefit in Germany
(unemployment allowance II = SNCB under Annex X). Because of
her lack of professional skills and her unfamiliarity with German, she
is regarded as having only a very poor chance to find suitable
employment on the German labour market.
1. Does the Regulation (883/2004) including Article 4 on equal
treatment apply?
2. In the affirmative, does this prevent Member States to deny the
claimants in full or in part access to the benefit in question "in
order to prevent an unreasonable recourse to SNCBs"?
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Report of the ICT-GHK (DG EMPL)
of September 2013
Non active migrants represent only a very small share (0.7 to 1% of
overall EU population) and – accordingly, only a very small share of
SNCBs beneficiaries.
EU Migrants are, on average, more likely to be in employment than
nationals living in the same country.
The overall rate of economic non-actives among EU migrants has declined
between 2005 and 2012.
The main motivation of EU citizens to migrate and reside in a different MS
is benefit-related as opposed to work or family related.
Social Europe
Case C-255/13 Flood
Mr Flood, an Irish national, was admitted to emergency hospital
treatment in Germany during his holidays on the basis of an E 111
(later EHIC, later E 112) because of a bilateral infarct of his brain
stem. As he prefers to be treated in Germany, he "stayed" there with
his partner for 11 years in a rented apartment, but he intends to
return to Ireland "as soon as possible". This, however, has proved to
be difficult or nearly impossible due to his medical condition.
The question arises, whether he should receive medical treatment in
Germany under an E 112 or an E 106 form. This depends on whether
he is actually still temporarily "staying" or, in the meantime,
"habitually residing" in Germany.
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Case C-43/13 Kelly
Ms Kelly was resident in Ireland and was there in insurable
employment for just short of the last three years. She spend
the last six months of her insurable employment in Northern
Ireland, when she fell sick.
Which legislation applies (lex domicilii or lex loci laboris). Ms
Kelly does not fulfil the conditions for an illness benefit under
British law, but only under Irish law?
See also case C-382/4, Franzen.
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Case C-43/13 Kelly
Article 11 (3) (a)
lex loci laboris
Case 302/84
Ten Holder
Article 11 (3) (e)
lex domicilii
Cases C-135/99 + C-522/10
Elsen + Reichel-Albert
no loss of rights,
no harmonisation
when citizens exercise
their right of free movement
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Judgement of 13.12.2012 in case C-379/11
Caves Krier Frères Sàrl
 A condition of residence is, as a general rule, inappropriate as
regards migrant workers and frontier workers since, having
participated in the employment market of a MS, they have in
principle established a sufficient link of integration with the
society of the State.
 A grant to employers of a subsidy for the recruitment of
unemployed persons cannot be made subject to the condition
that the unemployed person recruited has been registered as a
jobseeker in that same Member State.
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Judgment of 20.03.2013 in case E-3/12,
• Entitlement to UB for atypical frontier worker
cannot be made conditional on actual presence in
the EEA State concerned.
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Judgment of 11.04. 2013 in case C-443/11,
The provisions of Article 65 of Regulation No
883/2004 are not to be interpreted in the light of
the judgment of the Court of Justice of 12 June
1986 in Case 1/85 Miethe.
This means that typical and atypical frontier
workers are treated differently in case of
unemployment! Is this justified???
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