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 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.

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?

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 residence

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

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)?”

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?

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)

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! …?

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-2004/38

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

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

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?