1. Dr. Gellérné dr. Éva Lukács Unemployment benefits for the self- employed in EC Law – Incentives for discussion Seminar, Budapest, 8-10 February, 2006.

2. Issues  Legal background  Challenges of Reg. 883/2004/EC and its Implementing Regulation  Practical questions

3. Legal Background - Treaty  Article 42. (ex. 51.):  The Council shall, acting in accordance with the procedure referred to in Article 251, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, it shall make arrangements to secure for migrant workers and their dependants:  (a)aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;  (b)payment of benefits to persons resident in the territories of Member States.  The Council shall act unanimously throughout the procedure referred to in Article 251.

4. Legal background Regulations  Reg. 1408/71/EEC and 574/72/EEC are originally silent on self-employed  10 years later situation changes

5. Extension – legal basis  Article 308 (ex. 235):  If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.

6. Reg. 1390/81/EEC  Whereas freedom of movement for persons, which is one of the cornerstones of the Community, is not confined to employed persons but also extends to self-employed persons in the framework of the freedom of establishment and the freedom to supply services;

7. Reg. 1390/81/EEC  Whereas the coordination of the social security schemes applicable to self- employed persons is necessary to attain one of the objectives of the Community; whereas the Treaty has not provided the necessary specific powers for this purpose ;

8. Reg. 1390/81/EEC  whereas, for reasons of equity, it would be appropriate to apply, to the largest possible extent, the same rules to self-employed persons as are laid down for employed persons;

9. Definition  (a) "employed person" and "self-employed person" mean respectively: … any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed or self-employed persons.  (b) "frontier worker" means any employed or self- employed person who pursues his occupation in the territory of a Member State and resides in the territory of another Member State to which he returns as a rule daily or at least once a week.

10. Concrete changes  43. In Article 67 (1) and (2) the words "completed under the legislation of any other Member State" shall be replaced by the words "completed as an employed person under the legislation of any other Member State."  44. In the first line of Article 69 (1), "a worker" shall be replaced by "an employed or self-employed person".  45. In the second line of the second subparagraph of Article 70 (1), "a worker" shall be replaced by "an employed or self-employed person".  46. In Article 71 (1): (a) in the first line, "an unemployed person who" shall be replaced by "an unemployed person who was formerly employed and who";  (b) in the first line of (b) (i) and in the first line of (b) (ii), "a worker" shall be replaced by "an employed person";  (c) in the 11th line of (b) (ii), "such worker" shall be replaced by "such employed person".

11. Result  Coverage definitely extended: - ONLY as regards export, Article 69 (and 70).  Coverage retained: -Article 67, 71. (aggregation, frontier situations) -Definition of „frontier worker” could be construed differently

12. Practical importance  Countries HAVING complete schemes for the self-employed: –CZ, DK, FI, HU, LUX, PL, SE, SI, SK –9 countries  Countries having some limited scope schemes –EE, (Norway)

13. Practices – based on information provided for  Full application: LUX  Application of Article 67 and 69.: FIN  Application of Article 69 (export) only: –CZ, DK, PL, SE

14. Reg. 883/2004/EC  Legal basis: Article 42 and 308.  Publication: 30.04.2004.  Entry into force: 2007 (?)  Implementing regulation: –Proposal published: 31.01.2006. –Co-decision procedure (EP)

15. Aims  Preamble: –In order to foster mobility of workers, it is particularly appropriate to facilitate the search for employment in the various Member States; it is therefore necessary to ensure closer and more effective coordination between the unemployment insurance schemes and the employment services of all the Member States.

16. Definition  „activity as a self-employed”: –Any activity or equivalent situation treated as such for the purposes of the social security legislation of the Member State in which such activity or equivalent situation exists.  „period of insurance”: –Period of contribution, employment or self- employment as defined and recognised by the respective legislation.

17. Chapter 6. Unemployment  Article 61, principle of aggregation: –The competent institution of a Member State whose legislation makes the acquisition, retention, recovery or duration of the right to benefit conditional upon the completion of either periods of insurance, employment or self- employment, to the extent necessary, take into account these periods in other Member States as though these were completed under the legislation it applies.

18. Export of benefit  Article 64. Export: –The whole procedure concerns „unemployed persons”, who, when satisfying the required conditions, are entitled to make use of the right to export in the same way as envisaged under Reg. 1408/71/EEC. –Both employed and self-employed are entitled.

19. Frontier situations  Article 65 (1) and (2): –A person who is partially or intermittently or wholly (para. 2) unemployed and who, during his last activity as an employed or self-employed person, resided in a Member State other than the competent state … (shall first report himself to the place of employment or (para 2.) residence).

20. Implementing Regulation  Structure is different form 574/72/EEC.  General rules prevail.  Distinct rules for Chapter 6 are missing, only one Article (Article 69) is presented.

21. Result  Reg. 883/2004/EC places self- employed persons on the same footing as employed persons.

22. Challenges  There is no uniform definition of self- employed under EC law.  Parallel self-employment activities, collection of contributions  Possible forum shoppings  Appropriate use of E forms

23. Please, pose your questions! Thank you for your attention!